Geng v Minister for Immigration and Multicultural Affairs

[1999] FCA 840

FEDERAL COURT OF AUSTRALIA

Geng v Minister for Immigration & Multicultural Affairs [1999] FCA 840

YAN GENG v MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS

N 318 OF 1999

EMMETT J
18 JUNE 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 318 OF 1999

BETWEEN:	YAN GENG Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	18 JUNE 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 318 OF 1999

BETWEEN:

YAN GENG

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:	EMMETT J
DATE:	18 JUNE 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant is a citizen of The People’s Republic of China who arrived in Australia on 19 October 1996.  The applicant left Australia on 21 December 1997 and returned to China.  She re-entered Australia on 10 January 1998.  On 4 November 1998, she lodged an application for a protection visa.  A delegate of the Minister for Immigration & Multicultural Affairs (“the Minister”) refused to grant a protection visa on 30 November 1998 and, on 10 December 1998, the applicant sought review of that decision by the Refugee Review Tribunal (“the Tribunal”).  On 22 March 1999, the Tribunal affirmed the decision not to grant a protection visa.  The applicant has now brought an application to this court for a review of the decision of the Tribunal. 

2. When the matter came before me on 4 June 1999, the applicant was represented by her solicitor, Mr A. Tees.  On that day, I fixed the matter for hearing today at 10.15 a.m.  When the matter was called there was no appearance for the applicant.  The applicant’s solicitor had, in the meantime, filed a notice of ceasing to act together with an affidavit, to which there was annexed a copy of letters addressed to the applicant informing her that the matter had been fixed for hearing today and seeking instructions.

3. The solicitor for the respondent also sent, by courier to the applicant's address on 15 June 1999, a letter informing the applicant that the matter was listed for hearing before me today.  In addition, on 15 June 1999, my associate also wrote to the applicant at her address informing the applicant that the matter was listed for hearing today.  I am satisfied on the evidence before me that the applicant was aware of the hearing fixed for today.

4. The respondent seeks an order pursuant to Order 32, Rule 2(1)(c), that the proceedings be dismissed.  That Rule relevantly provides as follows:

   “2(1)   If, when a proceeding is called on for trial, any party is absent, the Court may:

   ………………………………

   (c)       if the party absent is an applicant … dismiss the action.”

5. The grounds shown in the application do not disclose any ground for review contemplated by section 476 of the Migration Act 1958 (Cth).  Indeed, the grounds raise matters which are expressly excluded as grounds for review by that section.  I have considered the reasons of the Tribunal which, in accordance with the usual practice, have been filed by the respondent together with other relevant documents.  The applicant did not appear before the Tribunal, and the Tribunal was satisfied that the applicant did not have a subjective fear which prevented her from returning to her country of nationality, namely The People’s Republic of China.  The Tribunal placed considerable weight on the fact that the applicant, of her own free will, returned to China without any difficulty and then left China again on the basis of papers in her own name.  On material before me there appears to be no arguable basis for intervention by this Court. 

6. Having regard to the failure of the applicant to appear, I order that the proceedings be dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             18 June 1999

The Applicant did not appear.
Solicitor for the Respondent:	Andras Markus for the Australian Government Solicitor
Date of Hearing:	18 June 1999
Date of Judgment:	18 June 1999