NAWT v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1384

FEDERAL COURT OF AUSTRALIA

NAWT v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1384

NAWT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1546 OF 2003

EMMETT J
3 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1546 OF 2003

BETWEEN:	NAWT APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	3 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the proceeding.

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	N1546 OF 2003

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

JUDGE:	EMMETT J
DATE:	3 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant claims to be a citizen of the People’s Republic of China.  She arrived in Australia on 5 July 2002 and on 22 July 2002 lodged an application for protection class XA visa under the Migration Act 1958 (Cth). On 13 August 2002, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa and on 22 August 2002, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision. On 5 September 2003, the Tribunal affirmed the decision not to grant a protection visa. On 15 October 2003 the applicant filed an application under s 39B of the Judiciary Act 1903 (Cth) for prerogative writ relief in respect of the Tribunal’s decision.

2. The details of the claim were in the following terms:

   ‘1.       The RRT found that the applicant had failed to satisfy the basic requirement for the grant of the visa.  In making this finding, the RRT ignored parts of the applicant’s claims in the statement attached to her application for the relevant visa submitted.  In doing so, the RRT ignored relevant material or reached a decision that could not reasonably have been reached, or reached a decision without reasonable or rational foundation, giving rise to the incorrect finding that the applicant is not entitled to the relevant visa and give rise to jurisdictional error.

   2.The above jurisdictional error affected the exercise of power of the RRT.’

3. On 31 October 2003, I directed the applicant to file and serve a written outline of submissions five working days prior to the hearing and fixed the matter for hearing today.  The direction for written submissions was not complied with and when the matter was called on for hearing today, there was no appearance for the applicant.  The Minister seeks an order either for dismissal under O 32 r 2(1)(c) or that I proceed with the trial generally under O32 r 2(1)(d).  Since I have had the benefit of submissions going to the merits of the case on behalf of the Minister, I propose to proceed with the hearing  notwithstanding the absence of the applicant. 

4. The Tribunal wrote to the applicant on 25 July 2003 inviting the applicant to give oral evidence and present arguments at a hearing on 10 September 2003.  On 27 August 2003, the applicant wrote to the Tribunal, advising that she did not wish to attend the hearing.  The matter was therefore determined on the evidence available to the Tribunal.  The Tribunal observed that the applicant had had at least five opportunities to present and defend her claims, being: her application to the Department of Immigration and Multicultural and Indigenous Affairs of July 2002; her application of August 2002 to the Tribunal; the request by the Tribunal in the letter of August 2002 for any documents; information or other evidence; the opportunity to reply to the requests for any new documents or written arguments in the Tribunal’s invitation letter of July 2003 and the declined hearing.

5. For various reasons, the Tribunal considered that the applicant’s claims about past and future persecution by Chinese authorities were not credible.  First, the Tribunal considered that the claims remained nothing more than mere assertions because the applicant had presented no evidence for any of the claims and because she had declined to present herself for questioning about the claims.  Second, the fact that the applicant claimed to have lived at one address for 10 years prior to her departure from China and worked with the one company for over 4 years prior to her departure, led the Tribunal to conclude that she was readily findable by the authorities and was not in fact wanted by them or in fear of them.  Third, she was able to obtain a passport in 1998 in her own name without difficulty and she was not later deprived of that passport, leading the Tribunal to conclude that the applicant was not wanted and would not be wanted by the authorities.  Other reasons are advanced by the Tribunal in support of its conclusion that if the applicant returned to China she would be of no adverse interest to the Chinese authorities. 

6. Unless the decision of the Tribunal was attended with some jurisdictional error, there is no basis for concluding that it is otherwise than a privative clause decision within the meaning of s 474 of the Act.  There is nothing apparent on the face of the reasons to suggest that the decision was attended with any error at all.  It follows that there is no basis upon which this Court could interfere with the decision.  Accordingly, the application must fail. 

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:             28 October 2004

No appearance for the applicant
Counsel for the Respondent:	Mr A. Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 February 2004
Date of Judgment:	3 February 2004