NAYF v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 196

FEDERAL COURT OF AUSTRALIA

NAYF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 196

NAYF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 2293 OF 2003

GYLES J
10 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2293 OF 2003

BETWEEN:	NAYF APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	10 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed. 

2.The applicant pay the respondent's costs of this application and 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	N 2293 OF 2003

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

JUDGE:	GYLES J
DATE:	10 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application on behalf of the respondent Minister to have the proceedings dismissed on the ground that no reasonable cause of action is disclosed.  The proceedings are by way of application pursuant to s 39B of the Judiciary Act.  The application does not properly identify the particular decision which is challenged although it is clear enough from the evidence which is before me that it was a decision of the Refugee Review Tribunal made 15 October 2003 and handed down 11 November 2003 affirming a decision of a delegate of the Minister to refuse an application for a protection visa.

2. The details of claim in the application allege ignoring of relevant material, reaching a decision that could not reasonably have been reached, and reaching a decision without reasonable or rational foundation giving rise to the incorrect finding that the applicant is not entitled to the relevant visa and giving rise to jurisdictional error.  As has been pointed out by the solicitor for the Minister, there has been no particularisation of that claim and the application is not supported by any affidavit.  The evidence which has been filed on behalf of the Minister establishes that the application for protection visa was based in substance upon persecution on the grounds of religion, it being claimed that the applicant had started to practise Falun Gong and that he feared going back to China in those circumstances.

3. As I have indicated, the delegate of the respondent refused that application.  On 20 December the applicant sought review of that decision by the Refugee Review Tribunal.  On 10 September 2003 the Tribunal wrote to the applicant informing him that it had considered the materials before it but was unable to make a favourable decision and invited him to attend a hearing scheduled on 14 October 2003.  I should say that at that stage, the applicant appears to have been represented by a migration agent.  The applicant initially accepted the invitation but on 14 October the Tribunal received a letter from the applicant indicating that he would not be attending the hearing and requesting that a decision be made on the papers.

4. In view of that history it is hardly surprising that the Tribunal in its decision did not accept the claims of the applicant.  It was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Convention.  In my opinion the respondent is correct in its contention that no reasonable cause of action is disclosed.  There has been ample opportunity for the applicant to bring forward any legitimate and bona fide claim.  This has not been done. 

5. The application is dismissed.  The applicant is to pay the respondent's costs of this application and of the proceeding.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:            8 March 2004

Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the Respondent:	B Rayment of Sparke Helmore
Date of Hearing:	10 February 2004
Date of Judgment:	10 February 2004