NAVU v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1109

FEDERAL COURT OF AUSTRALIA

NAVU v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1109

NAVU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1440 of 2003

SACKVILLE J
SYDNEY
9 OCTOBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1440 OF 2003

BETWEEN:	NAVU APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	9 OCTOBER 2003
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 1440 OF 2003

BETWEEN:	NAVU APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	9 OCTOBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter an application has been filed pursuant to s 39B of the Judiciary Act 1903 (Cth). The application seeks review of a decision of the Refugee Review Tribunal (“RRT”), which was handed down on 20 August 2003. The RRT affirmed a decision of a delegate of the respondent (“the Minister”) not to grant the applicant a protection visa.

2. The applicant is a citizen of the Peoples Republic of China, who arrived in Australia on 6 July 2002.  According to the RRT’s reasons, it wrote to the applicant informing him that, on the material before it, it was unable to make a favourable decision.  Accordingly, the RRT invited the applicant to give oral evidence and present arguments at a hearing scheduled for 25 July 2003.  Prior to that hearing, the applicant advised the RRT in writing that he did not wish to give oral evidence.  He consented to the RRT making a decision on the review without taking any further action to allow or enable him to appear before it.  The RRT proceeded to determine the application on the material before it, without holding a hearing.

3. The RRT accepted that the applicant was a citizen of the Peoples Republic of China.  It did not accept, however, that he had a well founded fear of persecution within the meaning of the Refugees Convention.  The RRT took that view because it found the applicant's claims to fear persecution by reason of his being a practitioner of Falun Gong to be unclear and vague, and in a number of respects internally inconsistent. 

4. The application to this Court was filed on 17 September 2003.  The Registry allocated 9 October 2003 as the date for the first directions hearing. 

5. When the matter was called today, the applicant did not appear.  The solicitor appearing on behalf of the Minister has tendered a letter which was sent on 1 October 2003 to the applicant at his address for service.  That letter indicates that if the applicant did not attend the scheduled directions hearing orders would be sought pursuant to Federal Court Rules O 10 r 3(2) that the application be dismissed and that the applicant pay costs.  The applicant was therefore warned in terms of the consequences of a failure to appear at the directions hearing.

6. Since there has been no appearance by the applicant today, I consider it appropriate to make an order pursuant to Federal Court Rules O 10 r 3(2) dismissing the proceedings.  I will also order the applicant to pay the costs of the Minister. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville

Associate:

Dated:             14 October 2003

Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 October 2003
Date of Judgment:	9 October 2003