NAXZ v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 343

FEDERAL COURT OF AUSTRALIA

NAXZ v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 343

NAXZ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1988 of 2003

MADGWICK J
16 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1988 of 2003

BETWEEN:	NAXZ APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	16 MARCH 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The proceeding are dismissed pursuant to O 20 r 2, with costs, assessed in the sum of $2,750.00.

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	N1988 of 2003

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

JUDGE:	MADGWICK J
DATE:	16 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1. This is an application by the respondent Minister that the principal proceeding instituted by the applicant be dismissed pursuant to O 20 r 2 of the Federal Court Rules as disclosing no reasonable cause of action. The applicant seeks review, purportedly under s 39B of the Judiciary Act 1903 (Cth) and referring to s 475A of the Migration Act 1958 (Cth) (‘the Act’), of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 23 September 2003 affirming a decision of a delegate of the Minister to refuse the applicant a protection visa.

2. The applicant, a citizen of China, had arrived in Australia on 9 January 2002 on a temporary business visa issued a month earlier.  Following the refusal by the Minister's delegate to grant a visa, the applicant applied to the Tribunal for review of that decision.  The applicant's claims were that he was a practitioner and member of the Falun Gong movement and that he was dismissed from his job and tortured by the Public Security Bureau (‘the PSB’) for his adherence to the Falun Gong movement and/or for refusal to sufficiently inform on, or control, the behaviour of other Falun Gong practitioners under his supervision in a government office where he had a supervisory role.

3. When the applicant came before the Tribunal, he asserted that his original protection visa application and the application for review by the Tribunal did not contain accurate accounts of his claims.  He said, in effect, that these had been invented by former advisers.  He was given time to produce an accurate statement.  On 10 July 2003 he set out his claims. 

4. The Tribunal Member accepted that the applicant was a citizen of China but rejected the veracity of the remainder of his claims.  Among other things, the Tribunal Member considered that he showed so little knowledge of the exercises practiced by Falun Gong adherents that the Tribunal did not accept that he was or ever had been a Falun Gong practitioner.  The Tribunal rejected his story that he had escaped the PSB by the happy chance that all of the officers guarding him had gone to the toilet at the same time leaving him in unlocked premises. 

5. In his application to the Court, the applicant said he believed that he was a refugee and that the decision by the ‘Immigration Department’ was wrong.  He said he had met the requirements of the Department, he should have been granted a refugee visa and the Department had made a mistake in determining that he was not a refugee.

6. The applicant's application was listed by the Court for hearing on 18 December 2003.  On 1 December 2003, the respondent's solicitor wrote to the applicant forwarding him a notice of appearance and mistakenly telling him that the matter was listed for directions on 18 December 2004.  The applicant was also strongly urged by that letter to obtain legal advice and representation.  He was warned that, in the event that his application failed, the respondent would ask the Court for an order for costs.

7. On 9 December 2003, the respondent’s solicitor again wrote to the applicant and misinformed him that the matter was listed for 18 December 2004.  However proposed orders for directions for conduct of the matter were also enclosed.  On 18 December 2003, the respondent appeared at the directions hearing before a Registrar but the applicant did not.  By letter of 19 December 2003, the respondent’s solicitor advised the applicant that the matter had been before a Registrar on 18 December 2003 and that the matter was listed for hearing before me on 16 March 2003.

8. Finally, however, by letter dated 30 January 2004, the applicant was advised by the respondent’s solicitor that the notice of motion, with which I am now dealing, had been listed for hearing before me at the correct time on the correct day, that is to say today.

9. Notwithstanding the unfortunate errors in the earlier letters, it seems to me beyond question that the matter was clarified by the lastmentioned letter.

10. In oral submissions, with the assistance of a competent interpreter, the applicant said that earlier this year he had sought legal advice and had been told that his best course was to seek to have the Minister make a redetermination of his case.  He claimed that he had been uncertain as to whether to proceed with this case in the Court or to accept that advice, although he said that he had asked the Minister to look again at the matter.  He said that he turned up at the office of the respondent's solicitor twenty minutes before the hearing of the case today and then, for the first time, understood what the case was about and that it was on today.  He was advised that if he wished to appear he should go to the Court straight away and was advised, apparently, how to get here.

11. It seems to me that, on any view of the matter, the applicant has had five or six weeks clear notice of the proceedings.  He has not suggested that there was any compelling reason like poverty why he could not obtain legal advice if he had wished to.  Nor has he actually suggested that he has not had legal advice about the matter.  As far as I am concerned, he has had an entirely reasonable opportunity to deal with the matter and his repeated references to the December 2004 date were, in my opinion, a disingenuous attempt to construct a basis for an adjournment that, in substance, was quite unmeritorious.

12. I explained to the applicant, as clearly as I can, what the statutory and administrative structure of the system of administrative review and potential judicial review is, in relation to a case such as his.  The applicant is clearly an intelligent person, though of course, not a lawyer.  He did not suggest that he did not understand what I was saying to him.  Invited to indicate in what way it might be said that the Tribunal had made any legal errors which would justify the court's intervention, the applicant referred entirely to factual matters. The burden of what he said was that the Tribunal had got the facts wrong.

13. The Tribunal, so far as I can see, does not appear to have failed to follow jurisdictionally requisite procedures, to have ignored relevant material, to have acted in bad faith or otherwise to have exceeded or failed to exercise its jurisdiction.  The Tribunal has given detailed reasons for its decision.  So far as I can see, the Tribunal's rejection of the applicant as a credible witness was legally open to it.  I see no means by which, even if the applicant were belatedly to seek legal advice as to how to recast his case, it might be recast in a way which would arguably provide him relief.

14. Accordingly it is both clear that the applicant's initiating process discloses no reasonable cause of action and it appears to me that no reasonable cause of action might be disclosed by recasting of that process.  The Minister is entitled to have the proceeding dismissed pursuant to O 20 r 2, with costs.

15. I assess costs in the sum of $2,750.00.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             25 March 2003

Applicant appeared in person.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 March 2003
Date of Judgment:	16 March 2003