He v Minister for Immigration and Multicultural Affairs

[2001] FCA 1143

FEDERAL COURT OF AUSTRALIA

He v Minister for Immigration & Multicultural Affairs [2001] FCA 1143

SHUI PING HE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 585 of  2001

SACKVILLE J
SYDNEY
14 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N585 OF 2001

BETWEEN:	SHUI PING HE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	14 AUGUST 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s 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 585 OF 2001

BETWEEN:	SHUI PING HE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	14 AUGUST 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (“The Tribunal”) made on 28 March 2001 but apparently not handed down until 19 April 2001.  The Tribunal affirmed the decision of a delegate of the respondent refusing to grant a protection visa to the applicant.  The application for review filed in this Court identifies the grounds of the application as follows:

   “1.       The decision was induced or affected by actual bias of the officer.

   2.     There is no evidence or other material to justify the making of the decision.”

2. The form of the application suggests that it was drafted without legal assistance.  The applicant who is a citizen of China arrived in Australia on 25 September 1999.  On 27 March 2000 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  On 28 April 2000, the Minister's delegate refused to grant him a protection visa.  On 2 June 2000, the applicant applied for a review of that decision.

3. The basis of the applicant's claim to the Tribunal was that he was a follower of Falun Gong.  He claimed to be a well-known Falun Gong believer and practitioner, and to have been subjected to police persecution as a consequence.  In his application for review before the Tribunal, the applicant stated that he would subsequently provide the Tribunal with more detailed information pertaining to the claims made.  However, in delivering its decision the Tribunal noted that nothing on the file indicated that the Department had received any further submissions from the applicant.

4. On 23 January 2001, the Tribunal wrote to the applicant advising him that it had considered all the papers relating to his application but was unable to make a favourable decision on that information alone.  The Tribunal invited the applicant to give oral evidence and to present arguments at a hearing on 28 March 2001.  The applicant was advised that if he did not attend the hearing the Tribunal could make a decision on his case without further notice.

5. The letter was sent by registered mail to the address given by the applicant in his application for review to the Tribunal.  That address, namely 2/15 Wigram Street, Harris Park, New South Wales, 2150 was specified as his address for service.  This was the same address that he had given in his original application form and the same address as appeared on his application for review in this Court.  The registered letter appears to have been returned to the Tribunal with a stamp indicating that the addressee had left the address.

6. The Tribunal took several further steps in an effort to locate the applicant. These included a check on all files available to it and making contact with the Department to ascertain the applicant's last known address. No new information was found regarding the applicant's location and he did not appear before the Tribunal on the designated day. In those circumstances the Tribunal decided, pursuant to s 426A of the Migration Act 1958 (Cth) (“the Act”), to make a decision on the review without taking any further action.

7. After considering all the information presented by the applicant and the information obtained from external sources, the Tribunal held that it was not satisfied that the applicant had a well-founded fear of persecution in China for a Convention reason.  Accordingly the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.

8. A directions hearing was held in respect of the matter in this Court on 28 June 2001.  The applicant appeared and was assisted by an interpreter on that occasion.  He was told that the matter would be set down for hearing today.  At the directions hearing the applicant gave an address to which documents should be sent to him in addition to his address for service.  The additional address given was Post Office Box 241, Homebush West, 2140.

9. On 28 June 2001, the solicitors acting on behalf of the Minister sent a letter to the applicant advising him of the directions made on 28 June 2001.  That letter was sent both to the applicant's address for service and to the postal address given at the directions hearing.  The submissions prepared on behalf of the respondent in this matter were also sent to the applicant at both addresses. 

10. In these circumstances it is clear that the applicant has been informed on several occasions of the date of the hearing in this Court.  I infer from his absence today that he does not wish to attend the Court in order to pursue his application for review of the Tribunal's decision.

11. In those circumstances, I propose to accede to the application made on behalf of the Minister.  That is, the application to this Court should be dismissed by reason of the non-appearance of the applicant pursuant to Federal Court Rules, O 32, r 2(1)(c).  The orders that I make are that the application be dismissed, and that the applicant pay the Minister's costs. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             17 August 2001

The Applicant was unrepresented.

Counsel for the Respondent:	Mr Geoffrey Kennett
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	14 August 2001
Date of Judgment:	14 August 2001