NAZC v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 781

FEDERAL COURT OF AUSTRALIA

NAZC v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 781

NAZC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 16 of 2004

BRANSON J
8 JUNE 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 16 of 2004

BETWEEN:	NAZC APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	8 JUNE 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the costs of the respondent.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 16 of 2004

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

JUDGE:	BRANSON J
DATE:	8 JUNE 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application made in reliance on s 39B of the Judiciary Act 1903 (Cth). The applicant seeks judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The applicant is a citizen of the People’s Republic of China (‘the PRC’).

2. The application has rightly been described by counsel for the respondent in his written submissions as ‘formulaic’.  It asserts that the Tribunal ignored parts of the applicant’s claims in the statement attached to her visa application.  It contains no particulars relating the assertion to the actual decision of the Tribunal.  The applicant has insisted today that the application was drawn by her and then translated into English.  I therefore proceed on the basis that the application discloses the applicant’s true complaint with respect to the decision of the Tribunal.  Nonetheless, because the applicant has no legal representation I have additionally given careful consideration to the entirety of the reasons of the Tribunal.

3. The decision of the Tribunal affirmed a decision of a delegate of the respondent not to grant the applicant a protection visa.  The Tribunal’s decision was made following the applicant’s failure to attend a scheduled hearing before the Tribunal.  The Tribunal was thus unable to seek information from the applicant that may have provided support for her claims to fear persecution in the PRC by reason of being a practitioner of Falun Gong.  The reasons for decision of the Tribunal contain the following conclusions:

   ‘The entire claim consists only of a number of unconfirmed and undated statements and assertions with no supporting detail provided.  The application gives no specific insight into the applicant’s knowledge of FG [Falun Gong] or whether, indeed, she is an authentic practitioner or not.

   Where ICI [independent country information] conflicts with that presented by the applicant, the Tribunal prefers that of ICI.  Where the Tribunal could not locate any information to support an assertion made by the applicant, the Tribunal has inferred that either the situation did not occur or the fact alleged is not true. 

   The entire application is afflicted with unsubstantiated claims to the point that the Tribunal is of the opinion that the application is a fabrication.

   …

   It follows that the Tribunal finds on the totality of the evidence before it that the applicant has no subjective fear of persecution.  It follows there is no basis for the applicant’s claims that she has a well‑founded [scil. fear] of persecution if she returns to China now or in the foreseeable future.’

4. Presumably because of the unsatisfactory nature of the applicant’s application to the Court, the Registrar on 1 March 2004 ordered the applicant to file and serve an amended application on or before 30 April 2004.  The Registrar gave the respondent leave to apply for summary dismissal of the application if the applicant failed to comply with the order.  The applicant did not comply with the order.  The respondent, however, did not apply for summary dismissal of the application.  Counsel for the respondent informed me today that his client prefers to allow applications to proceed to hearing so that a final order can be obtained.  While I accept that a party may apply under O 35 r 7 of the Federal Court Rules to set aside an interlocutory order, an order of summary dismissal will not lightly be set aside.  Leave is almost certainly required before an appeal may be brought against such an order.  The absence of apparent merit in the application would strongly militate against the grant of leave to appeal from summary dismissal of an application.  However, an applicant has a right of appeal to the Full Court from a final order determining an application to the Court.  For the above reasons I am inclined to doubt that the respondent’s preference in the context of this matter was in accord with the public interest.

5. Today, the applicant has not sought to support the ground of review set out in her application.  Although she has identified matters of fact which she says that the Tribunal did not take into account, they are not matters of fact asserted in the statement made in support of her visa application or otherwise drawn to the attention of the Tribunal.  What the applicant has sought to do today is to persuade me that she is entitled to a protection visa.  This is not an issue for the Court’s determination.  That was a matter for the Tribunal’s determination.  The role of the Court is to review the decision of the Tribunal to see if it was made within the jurisdiction of the Tribunal. 

6. In my view, no jurisdictional or other error in the Tribunal’s decision has been or can be identified.  For that reason the application must be dismissed.

7. While I am willing in this case to make an order that the applicant pay the respondent’s costs, the respondent should not assume that, should she in a future case chose not to exercise leave granted to her to apply for summary dismissal of an application, an unqualified costs order will be made in her favour following a full hearing of the application.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             21 June 2004

Counsel for the Applicant:	The Applicant appeared in person.
Counsel for the Respondent:	A McInerney
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	8 June 2004
Date of Judgment:	8 June 2004