NAWP v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 662

FEDERAL COURT OF AUSTRALIA

NAWP v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 662

NAWP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1536 of 2003

BRANSON J
21 MAY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1536 of 2003

BETWEEN:	NAWP APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	21 MAY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the costs of the respondent.

3.The above orders not be drawn up for 21 days from today’s date.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1536 of 2003

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

JUDGE:	BRANSON J
DATE:	21 MAY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant, a Mongolian national, seeks judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 26 August 2003 whereby a decision not to grant the applicant a protection visa was affirmed.  The hearing of the application for judicial review has been delayed because of difficulties involved in obtaining the services of an interpreter qualified in Mongolian and English. 

2. Regrettably, when this matter was called at 3.00 pm today, the scheduled time for the hearing of which the applicant had been notified both in writing and orally, the applicant was not in Court.  The hearing of the application has been delayed for more than half an hour against the possibility that the applicant might arrive, but she has not done so.  In the course of the period between 3.00 pm and 3.30 pm the Minister’s instructing solicitor, together with the interpreter, searched for the applicant both at the level of the registry and level 18, where she had previously attended, but without success.  The applicant’s mobile telephone has apparently both yesterday and today been switched to a recorded message.  In the circumstances, I have determined that the appropriate course is to have this matter proceed in the absence of the applicant. 

3. Before the Tribunal the applicant claimed to have a well‑founded fear of persecution in Mongolia by reason of her political opinion and also by reason of being a member of a particular Mongolian social group, namely, journalists.  After the applicant’s hearing before the Tribunal the Refugee Advice and Casework Service (Australia) Incorporate (‘the RACS’) wrote to the Tribunal on her behalf.  In its letter the RACS sought to clarify certain aspects of the applicant’s claims.  The letter explained that the applicant’s protection visa application was written by her then adviser, was not properly translated to or discussed with her, and contained inaccuracies.  The applicant’s experiences in Mongolia and the risks that she claimed to face if required to return there were summarised in the letter.  By the letter the applicant requested a further hearing before the Tribunal asserting that a great deal of the previous hearing had involved efforts to resolve confusion caused by the applicant’s protection visa application. 

4. The Tribunal declined to conduct a further hearing.  However, in its reasons for decision the Tribunal records that it:

   ‘is both prepared and able to make its present decision without relying on material found in the Applicant’s DIMIA application form ….’

   The applicant’s claims were rejected by the Tribunal which took an adverse view of the applicant’s credibility. 

5. There was plainly material before the Tribunal capable of supporting the Tribunal’s view of the applicant’s credibility even if inconsistencies between the applicant’s original claims and those made by her before the Tribunal were ignored.  Some of the applicant's claims were not unfairly characterised by the Tribunal as inherently illogical.  Moreover her passport was, as the Tribunal found:

   ‘marked seven times with exit or entry stamps by Mongolian officials in 2001 (including her last departure from Mongolia for Beijing, where she boarded her flight to Sydney).’

   The Tribunal noted:

   ‘she acted like a person who was not afraid of being apprehended at checkpoints for she did not minimise her exposure in such places.’

6. The grounds upon which the applicant claims judicial review of the decision of the Tribunal are that the Tribunal exceeded its jurisdiction, or constructively failed to exercise its jurisdiction, by reason of the Tribunal member’s bias against her or by reason of a denial of procedural fairness in that she was denied a fair hearing because of the Tribunal member’s aggressive and abusive attitude towards her.

7. The transcript of the hearing before the Tribunal has not been placed in evidence.  However, I accept, as the RACS’s letter suggests, that a considerable part of the hearing involved the Tribunal seeking from the applicant explanations for apparent inconsistencies between her original application and the claims then being advanced by her.  It was entirely proper for the Tribunal member to give the applicant an opportunity to explain these apparent inconsistencies.  The applicant, I note, had the assistance of a Mongolian/English interpreter at the Tribunal hearing.

8. Nothing before this Court provides any proper basis for an allegation of bias against the Tribunal member.  Nor has the claim of an aggressive and abusive attitude being displayed by the Tribunal member been substantiated.  I do not doubt that the applicant found the experience of being confronted with discrepancies between her original claims and those later advanced an uncomfortable one.  However, at the end of the day the Tribunal determined her application without according weight to those suggested discrepancies.

9. I am not satisfied that the applicant was denied procedural fairness as far as her hearing before the Tribunal was concerned.  I propose to dismiss the application but direct that the order not be drawn up for 21 days from today’s date to give the applicant time to apply to have the order set aside should it be that for some reason not known to the Court she has been prevented from attending Court today.  I further order that the applicant pay the costs of the respondent.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:            26 May 2004

Counsel for the Applicant:	The Applicant did not appear.
Counsel for the Respondent:	R Bromwich
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	21 May 2004
Date of Judgment:	21 May 2004