NBCR v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1776

FEDERAL COURT OF AUSTRALIA

NBCR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1776

NBCR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N321 OF 2004

EMMETT J
25 JUNE 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N321 OF 2004

BETWEEN:	NBCR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	25 JUNE 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The notice of motion filed on 9 June 2004 be dismissed. 

2.The applicant pay the respondent’s costs.

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	N321 OF 2004

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

JUDGE:	EMMETT J
DATE:	25 JUNE 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant claims to be a citizen of the People’s Republic of China.  He arrived in Australia on 25 May 2003.  On 12 June 2003, he lodged an application for a protection class XA visa under the Migration Act 1958 (Cth) (‘the Act’). On 19 June 2003, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) refused to grant a protection visa. On 17 July 2003 the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision. On 30 January 2004, the Tribunal affirmed the decision not to grant a protection visa. On 10 March 2004, the applicant then applied to this Court, by way of an application purporting to be under s 39B of the Judiciary Act 1903 (Cth).

2. No reference is made in the application to the decision of the Tribunal of 30 January 2004 that was handed down on 19 February 2004.  It has been treated, however, by the Minister as an application for constitutional relief in respect of that decision.  On 6 May 2004 the matter came before me for hearing when there was no appearance for the applicant.  Accordingly, on the Minister’s application I ordered that the proceeding be dismissed pursuant to O 32 r 2(1)(c) and ordered the applicant to pay the Minister’s costs.  On 9 June 2004, the applicant filed a notice of motion claiming the following relief:

   ‘That the hearing held on 6 May 2004 be re-heard because I was detained by the Department of Immigration the day before the hearing and I was unable to attend the hearing.’

3. The notice of motion was supported by the applicant’s affidavit which stated as follows:

   ‘I failed to attend the hearing held on 6 May 2004.  I was detained incorrectly by the Department of Immigration on 3 May 2004 and was not released from Villawood Detention Centre until 5 May 2004.  I was scared stiff and was too sick to attend the hearing on 6 May 2004.’

   The motion was returnable before me for hearing today.  The applicant appeared without any legal representation.  He asserted from the bar table that on 6 May 2004 he was dizzy and he was unable to talk clearly.  He asserted that he had been examined by a Chinese doctor who said that he had blood pressure and a heart problem.  There is no evidence before me of any such diagnosis but the applicant said that he wanted to be released from detention but was unable to formulate any grounds in support of his claims.  In my reasons for dismissing the proceeding on 6 May 2004 I referred to the reasons of the Tribunal.

4. The applicant failed to attend a hearing before the Tribunal despite an indication that he intended to do so.  The Tribunal in its reasons referred to the applicant’s claims relating to the practice of Falun Gong in China.  The only ground specified in the original application of 10 March 2004 to this Court is as follows:

   ‘The RRT found that the applicant had failed to satisfy the basic requirement for the grant of the visa.  In making this finding the RRT ignored parts of the applicant’s claims in the statement attached to her [sic] application for the relevant visa submitted.  In doing so, the RRT ignored relevant material or reached a decision that could not reasonably have been reached, or reached a decision without reasonable or rational foundation, giving rise to the incorrect finding that the applicant is not entitled to the relevant visa and give rise to jurisdictional error.’

5. The only claim before the Minister in support of a protection visa was an assertion that the applicant would be persecuted by reason of his pursuing Falun Gong.  That was dealt with by the Tribunal in express terms.  The Tribunal observed that there was nothing to support the claims other than the applicant's unsubstantiated assertions and that there was insufficient information before the Tribunal to enable it to be dissatisfied the applicant is a true Falun Gong adherent.  Nothing further has been advanced on behalf of the applicant in support of his claims for relief in respect of the Tribunal’s decision.

6. I am not satisfied on the material before me that there is any adequate explanation for the applicant’s failure to attend on 6 May 2004.  In any event, there would be no utility in setting aside the orders that I then made, since, on the material presently before the Court, there is no possible basis upon which the applicant could succeed in obtaining any relief in respect of the Tribunal’s decision.  Accordingly, I consider that the notice of motion should be dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             28 January 2005

The Applicant appeared in person.
Solicitor for the Respondent:	R White, Sparke Helmore
Date of Hearing:	25 June 2004
Date of Judgment:	25 June 2004