NADV v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NADV v MINISTER FOR IMMIGRATION [2002] FMCA 153

MIGRATION – Application for review of decision of the Refugee Review Tribunal – whether the Tribunal erred in finding the applicant’s fear of persecution was not well founded.

Migration Act 1958 (Cth) s.91R(3)

Re MIMA; Ex parte Durairajasingham (1999) 168 ALR 407

Applicant: NADV

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 308 of 2002

Delivered on: 30 July 2002

Delivered at: Sydney

Hearing Date: 24 July 2002

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Mr J.C Thompson

Solicitors for the Applicant: G.H. Healey & Co

Counsel for the Respondent: Mr S Lloyd

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant pay the respondent’s costs in the sum of $3,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 308 of 2001

NADV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a Vietnamese citizen who applied for protection (class XA) visas on 1 February 2001.  The applicant and his wife and two of their children had arrived in Australia on 5 January 1995.  The fourth child was born in Australia on 27 July 2001. 

2. The Minister’s delegate refused to grant a protection visa on 8 October 2001 and the applicant sought review from the Tribunal on 17 October 2001.  The Tribunal made its decision on 11 January 2002 and handed it down on 6 February 2002.  The Tribunal affirmed the decision not to grant the protection visas. 

3. The applicant is 47 years old.  He was educated to tertiary level in Vietnam and graduated with a Bachelor of Mathematics and Computer Science from Hanoi University in 1980.  His father was an early supporter of the Vietnam Minh.  The applicant claims that notwithstanding this, his family were not treated well by the regime as they were perceived to be wealthy.  He claims that he came to a realisation that Marxist-Leninism was not an appropriate social or economic philosophy for the Vietnamese people.  The applicant claimed to have made efforts to escape Vietnam to Australia by boat in 1982 and in 1987 but both attempts were unsuccessful. 

4. In 1995 the applicant received an Aus-Aid scholarship to study for a Masters of Commerce degree at the University of Wollongong.  He claimed that after that time he was more active politically against the Vietnamese government and that he was the subject of notice and low-level harassment from the Vietnamese embassy.  He claims to have published articles against the government’s philosophies. 

5. When the matter came before me the applicant was represented by solicitors and Counsel.  The applicant was also represented when the application for review was made.  His then solicitors filed an affidavit on 4 March 2002 together with the application but on 26 March 2002 they filed a notice of ceasing to act.  The application was given a return date of 15 April 2002 before Hill J.  At that time the applicant did not appear,…