NAQW v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1774

FEDERAL COURT OF AUSTRALIA

NAQW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1774

NAQW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N163 OF 2004

EMMETT J
17 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N163 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAQW APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	17 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the Minister’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	N163 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAQW APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	17 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant in this matter claims to be a citizen of the People’s Republic of China.  He arrived in Australia on 12 February 2002.  On 14 February 2002 he lodged an application for a protection class XA visa under the Migration Act 1958 (Cth). On 30 April 2002 a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’) refused to grant a protection visa. On 13 May 2002 the appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision.

2. On 7 April 2003 the Tribunal affirmed the decision not to grant a protection visa.  That decision was handed down on 29 April 2003.  The appellant then commenced a proceeding in this Court which was remitted to the Federal Magistrates Court. 

3. On 27 January 2004 Federal Magistrate Scarlett ordered that the application be dismissed and ordered the appellant to pay the Minister’s costs. On 16 February 2004 the appellant filed a notice of appeal in this Court. When the matter came on for directions before me there was no appearance for the appellant. I therefore stood the matter over to today for hearing. In the meantime the Chief Justice directed, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), that the appeal be heard by a single Judge.

4. The appellant has shown a consistent attitude towards his claim in the sense that he has never appeared at any hearing.  The applicant claimed when he sought a protection visa that he was dismissed from his job because of his association with the Falun Gong movement.  He said that he had been arrested, detained and tortured in July 1999.  He had also claimed that when he was unable to pay a fine he was detained for a further three days. The Tribunal referred to those claims in its reasons and observed that the claims did not accord with country information available to it which suggested that people with no leadership status in the Falun Gong organisation are not of interest to the authorities.

5. The appellant was invited to attend the hearing before the Tribunal but did not attend.  The Tribunal observed that had he attended he would have been asked for details about his Falun Gong activities.  The Tribunal would also have sought details about the claims of detention and torture.  Without more the Tribunal could not accept that the appellant was arrested and detained as he claimed. 

6. When the matter came before the Federal Magistrates Court there was no appearance for the appellant.  The Magistrate stood the matter down to give the appellant the opportunity of appearing.  There was still no appearance and for those reasons the learned Magistrate ordered that the application be dismissed, there being no substance in any grounds claimed.  When the matter was called on for hearing today there was no appearance for the appellant.  In the circumstances I am not persuaded there is any basis for any ground of appeal claimed. 

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:             25 January 2005

No appearance for the appellant
Solicitor for the Respondent:	Ms Houlton, Sparke Helmore
Date of Hearing:	17 March 2004
Date of Judgment:	17 March 2004