Ji Sheng Meng v Minister for Immigration and Multicultural Affairs

[2000] FCA 893

FEDERAL COURT OF AUSTRALIA

Ji Sheng Meng v Minister for Immigration and Multicultural Affairs [2000] FCA 893

JI SHENG MENG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 128 of 2000

BURCHETT J
23 JUNE 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 128 OF 2000

BETWEEN:	JI SHENG MENG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BURCHETT J
DATE:	23 JUNE 2000
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This is a motion to set aside orders, made ex parte, in an application to review a decision of the Refugee Review Tribunal.  What happened was that Mansfield J was to have heard the application for review on the 9th of this month and the parties were notified - indeed, the date was fixed sometime in advance - but at the hearing, the applicant, who is a Mandarin-speaking Chinese national of some 40 years of age, did not appear.  His Honour, in the circumstances, made an order dismissing the application with costs; but directed that his orders not be entered until after the 26th of this month, and that the applicant be notified of the terms of his orders and of the general effect of some observations he made, which were to the effect that there appeared to be some grounds that had not been identified or dealt with, the pursuit of which ought to be considered by the applicant. 

2. It was following notification by the Australian Government Solicitor of those matters that the applicant took out the motion which has now come before me as Duty Judge.  Appearing before me, have been the applicant in person, utilising the services of a qualified Mandarin interpreter, together with a migration agent who, I understand, also speaks Mandarin, and for the Minister, Ms Nanson.

3. An explanation for the non-appearance of the applicant was proffered by his agent, being to the effect that he feared arrest by the authorities if he appeared in the Court.  The same explanation was given for the applicant's failure to appear in the Refugee Review Tribunal.  There was no challenge to the explanation in itself, but only to whether it would justify an exercise of discretion in the applicant's favour.  The case has already impressed Mansfield J as raising some questions which ought to be considered.  His Honour went no further, and I certainly go no further.  In addition to the matters his Honour raised, it appears to me that the case does involve a question of the extent of compliance with the requirements of the Migration Act 1958 (Cth), which specifically required the Tribunal to give particular information to an applicant in the position of this applicant. There have been decisions of the Court, dealing with that question (see Sook v Minister for Immigration and Multicultural Affairs (1999) 86 FCR 584; Rahman v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 391), and now that the explanation of the applicant’s non-appearance has been proffered, it seems that the case may raise an additional question, because the Tribunal placed great emphasis on what it regarded as the applicant's choice not to give evidence orally before it. If, indeed, there was no choice in the matter free of the pressure of fear, there may be an issue about that.

4. Certainly, I have not observed in the papers any material which would, on the face of it, have given any direct justification for a conclusion that the applicant simply did not wish to give evidence.  The fact that someone does not appear does not, in itself, afford evidence of the reason for the non-appearance, and, of course, his Honour's consciousness of that fact is the reason why he made an order in the form in which he did in relation to the non-appearance of the applicant before him.

5. In the circumstances, I exercise my discretion to revoke the orders that were made on 9 June, and I direct that the matter be relisted for hearing.  I accept the suggestion which Ms Nanson made that, before that hearing is to take place, an effort should be made to clarify the precise grounds on which it is to proceed.  The applicant so far seems to have been entirely without legal assistance, and it may well be that he cannot afford it, but legal aid, though difficult to obtain in migration matters, is not necessarily impossible to obtain.  At any rate, certain discretions have been committed to me in that regard, and I propose to exercise them to enable some legal assistance to be obtained.  I direct the Registrar to refer the matter to the Migration Assistance Scheme, if available, and, in the alternative, to utilise Order 80 to obtain assistance for the applicant in the preparation of an amended application, and if appropriate, in relation to appearance at the hearing.

6. I refer the matter to Deputy Registrar Quinn to arrange the details, and also to fix a date for the hearing of the application once an amended application has been filed or, should that not happen within a reasonable time, to relist the matter before a judge.

7. In all the circumstances, costs are reserved.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett J.

Associate:

Dated:             3 July 2000

The Applicant appeared in person, with an interpreter and agent.
Solicitor for the Respondent:	Ms Nanson, of Australian Government Solicitor
Date of Hearing:	23 June 2000
Date of Judgment:	23 June 2000