Li, Ming Zhe v Minister for Immigration and Multicultural Affairs

[1998] FCA 534

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1152 of 1997

BETWEEN:	MING ZHE LI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE(S):	BRANSON J
DATE:	22 APRIL 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

HER HONOUR:   I have before me today an application for an order of review of a decision of the Refugee Review Tribunal.  The application was filed by the applicant on 24 December 1997.  An appointment for a directions hearing was endorsed on the application.  The directions hearing was set for 9.30 am on 3 February 1998.  That directions hearing came on before Lehane J on that date, 3 February 1998, and although there was an attendance before his Honour on behalf of the respondent, there was no attendance on behalf of the applicant.

His Honour set a timetable for the filing of affidavit evidence, and the respondent advised the applicant of those directions by letter sent to his address as shown on the application.  The timetable was not complied with by the applicant, although the respondent did file affidavit evidence in compliance with the direction of Lehane J.   The applicant has filed no evidence in support of his application.  On 3 February 1998, Lehane J also gave leave for a hearing date to be fixed.   

The matter is listed for hearing before me today.  The matter was called for hearing initially at approximately 10.20 am.  There was no appearance on behalf of the applicant.  I stood the matter over until 10.40 am.  The applicant has again been called outside of the courtroom and there is still no appearance by him. 

I note that my associate notified the applicant in writing by a letter dated 6 April 1998, posted to his address as shown on the application, of today's hearing date.  The letter also advised Mr Li that if he proposed to file any evidence in this matter he should do so as soon as possible.  The Court has received no response from Mr Li to that letter. 

My associate wrote to Mr Li again on 15 April 1998, confirming the hearing date and advising him that an interpreter had been booked to assist him in the presentation of his case to the Court.  That letter was sent to his address as shown on the application and again no response to the letter has been received by the Court.

I am satisfied that all appropriate steps have been taken to advise the applicant of today's hearing date.  I note that there is no telephone number for him on the Court's files.  Mr Reilly sought leave to proceed today in the absence of the applicant and for the reasons which I have outlined, such leave was given.

I have received written submissions on behalf of the respondent.  They draw attention to the fact that the Refugee Review Tribunal, having considered the matter before it on the papers, advised the applicant that it was unable to deal with the matter on the papers and invited him to give oral evidence to the Tribunal.  That letter is disclosed by the reasons of the Refugee Review Tribunal to have been posted both to the applicant and to the applicant's adviser.

The reasons of the Refugee Review Tribunal reveal that it received no response to that letter and for that reason oral evidence was not given to the Refugee Review Tribunal by the applicant.  The reasons of the Refugee Review Tribunal reveal that it was thus left with no information either as to the harm that the applicant alleged that he had suffered in his home country, the People’s Republic of China, or of the harm that he feared if he were to return.

The Tribunal had before it certain independent evidence that Chinese of Korean ethnicity (the applicant is of Korean ethnicity) are not disadvantaged in the People’s Republic of China by reason of their ethnicity.   As I have mentioned, the Tribunal had no positive evidence on this issue from the applicant.  The Tribunal was accordingly not satisfied that there was a real chance of persecution if the applicant were returned to China.  The Tribunal upheld the decision that the applicant be refused a protection visa.

I accept the submission made on behalf of the respondent by Mr Reilly that there is no apparent error of law disclosed by the reasons of the Refugee Review Tribunal.  The application was, of course, one open to be dismissed for want of prosecution.  However, Mr Reilly invited me to deal with the matter on the merits on the limited material which is before me.  Having done so, I am satisfied that the decision of the Tribunal should be affirmed and that the applicant should be ordered to pay the respondent’s costs.   I so order.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated: 

There was no appearance by the  Applicant.
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 April 1998
Date of Judgment:	22 April 1998