Naya v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 361

FEDERAL COURT OF AUSTRALIA

NAYA v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 361

NAYA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N2004 of 2003

JACOBSON J
25 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N2004 of 2003

BETWEEN:	NAYA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	25 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs in the proceedings.

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	N2004 of 2003

BETWEEN:	NAYA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	25 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review under s 39B of the Judiciary Act of a decision of the Refugee Review Tribunal (“the RRT”) made on 7 October 2003 and handed down on 30 October 2003.  The RRT affirmed a decision of a delegate of the Minister made on 20 February 2003 refusing to grant the applicant a protection visa.

2. When the matter was called on for hearing at 10.15 am this morning the applicant was not present.  The matter was listed for hearing on 19 December 2003 by a Registrar of the Court and the applicant was present in person on that day with an interpreter.  The Registrar listed the matter for hearing at 10.15 am on 25 March 2004 and ordered the applicant to file and serve written submissions five working days before the hearing.  No written submissions have been received from the applicant.

3. I stood the matter down for approximately 20 minutes in case the applicant had been unavoidably delayed but there was still no appearance from the applicant when the hearing resumed.  Accordingly, as requested by the Minister, I will deal with the matter under O32 r2(1)(d).

4. The applicant is a citizen of China.  He arrived in Australia on 1 December 2002.  He lodged an application for protection visa on 20 December 2002.  He claimed to have a well- founded fear of persecution in China on the basis that he had breached China's one child policy laid down in family planning regulations.  He claimed that after the birth of his second child his wife was forcibly sterilised, had her entitlement to social welfare benefits removed and his daughter was blacklisted.

5. On 10 September 2003, the RRT sent a notice to the applicant under s 424 of the Migration Act1958 (Cth) requesting that the applicant provide certain additional information. In particular, the notice directed the applicant's attention to the fact that the High Court has held the persons in breach of the family planning regulations in China do not, for that reason alone, constitute a "particular social group within the meaning of the Convention". The applicant was asked to identify and explain the Convention ground on which he relied in relation to the claim to have two children.

6. No reply was received to that letter before 7 October 2003 when the decision was made.  However, a letter was received from the applicant on 12 October 2003 between the date when the decision was made and the date when it was handed down.  Nevertheless, as the RRT member recorded in a memorandum, the submissions from the applicant did not address the lack of the Convention link or the decision of the High Court in Applicant A vMinister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (“Applicant A”).

7. In view of the fact that the RRT had not received any response to the s 424 notice by 7 October 2003, the RRT proceeded to deal with the application without a hearing.

8. The RRT dismissed the application on the ground that it was indistinguishable from the decision of the High Court in Applicant A.

9. The grounds of review referred to in the application under s 39B are stated in very general terms.  The applicant states that the RRT ignored parts of the applicant's claims and ignored relevant material or reached a decision that could not reasonably have been reached.  This was said to give rise to jurisdictional error which affected the exercise of the power of the RRT.

10. It is clear that the RRT was permitted to proceed to determine the application on the papers without inviting the applicant to an oral hearing or holding such a hearing. This follows from ss 424C(1) and 425(2) of the Act.

11. It is also plain as I have said that notwithstanding the fact that a letter was received on 12 October 2003 in response to the s 424 notice, the letter did not address the need to establish a Convention link. Nor did it address the decision of the High Court in Applicant A.

12. It is plain from the decision in Applicant A that the RRT was correct in dismissing the application.  I can see no error of law or jurisdictional error in the approach taken by the RRT.

13. It follows that the orders I will make are that the application be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Date:               30 March 2004

No appearance for the Applicant
Counsel for the Respondent:	D Watson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 March 2004
Date of Judgment:	25 March 2004