NBAV v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBAV v MINISTER FOR IMMIGRATION [2004] FMCA 577

MIGRATION – Application to review decision of Refugee Review Tribunal – summary dismissal.

General Steel Industries and The Commissioner for Railways New South Wales (1964) 112 CLR 125
SZBWF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 83
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: NBAV

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1014 of 2004

Delivered on: 31 August 2004

Delivered at: Sydney

Hearing date: 31 August 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Nil

Solicitors for the Respondent: Australian Government Solicitors

ORDERS

1. That pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules the applicant's application be dismissed as disclosing no reasonable cause of action.

2. That the applicant pay the respondent's costs fixed in the amount of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1014 of 2004

NBAV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In these proceedings the respondent seeks summary dismissal of an application that was brought by the applicant seeking judicial review of a decision of the Refugee Review Tribunal (the Tribunal) affirming a decision of a delegate of the respondent not to grant him a protection visa. The respondent filed the application seeking summary dismissal on 23 June 2004 on the basis that the proceedings disclosed no reasonable cause of action. It is sought that the proceedings be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules.

2. The background to these proceedings is that the applicant is a citizen of China who arrived in Australia on 26 February 2003 on a visitor visa.  He applied for a protection visa on 10 March 2003 which was refused.  He sought review by the Tribunal. 

3. In connection with his initial application for a protection visa, the applicant acknowledged that he was advised that he had little chance of success.  In his accompanying submission his agent stated that the applicant was determined to proceed even though he was told that his statement “lacks solid evidence to be supported so as to convince the delegate to make a favourable decision in his case”.  The decision of the delegate refusing the application recorded that the applicant provided no evidence whatsoever to substantiate his claim of suffering harm or mistreatment in the Peoples Republic of China of sufficient gravity as to constitute persecution in terms of the Refugees Convention. 

4. The applicant had claimed that he faced persecution because of his belief in Falun Gong.  The Tribunal wrote to the applicant and his migration agent on 29 October 2003 stating that it had considered the material before it in relation to his application but was unable to make a decision in his favour on this information alone.  The applicant was invited to attend a hearing on 10 December…