Noisadee v Minister for Immigration and Multicultural Affairs

[2001] FCA 751

FEDERAL COURT OF AUSTRALIA

Noisadee v Minister for Immigration and Multicultural Affairs

[2001] FCA 751

KOTCHAKORN NOISADEE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N258 of 2001

WILCOX J
8 JUNE 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N258 of 2001

BETWEEN:	KOTCHAKORN NOISADEE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	8 JUNE 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for the order of review be dismissed.

2.The applicant pay the respondent’s costs.

3.Grant leave to the applicant to apply in relation to the costs order if she wishes to do so, but in that event evidence in support of her letter of 5 June 2001 must be put before the Court.

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	N258 of 2001

BETWEEN:	KOTCHAKORN NOISADEE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	8 JUNE 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. The matter before the Court is an application for review of a decision of the Refugee Review Tribunal.  The Tribunal's decision was handed down on 20 February 2001.  A copy of the decision was sent to the applicant, Ms Kotchakorn Noisadee, at the address shown on the application for a protection visa, namely, 35/5 Help Street, Chatswood, NSW 2067.

2. On 16 March 2001 an application for review was filed in this Court.  That application bore a signature which purported to be that of the applicant. 

3. The matter came before me at a directions hearing on 26 April 2001 when the applicant appeared.  She does not speak fluent English but was assisted by a Thai interpreter, the applicant being a Thai national.  On that occasion, I fixed the hearing of that matter for 10.15 today.  In accordance with my usual practice, I explained with some care, and in some detail, the nature of the Court's powers; and, in particular, the limitations on the Court's ability to review decisions of the Refugee Review Tribunal.  I gave the applicant an opportunity of asking any questions.  I do not now recall whether she asked any questions; if so, I would have answered them.  I am clear she did not suggest at that hearing that she was uncertain why she was in Court; nor did she suggest that she was not aware of the making of an application on her behalf for a protection visa.  I emphasised to the applicant that the matter would proceed today and that she should be here, whether or not she had legal advice.

4. The applicant had not previously indicated whether she wished to participate in the pilot scheme initiated by the Court, whereby free legal advice is provided to persons seeking review of decisions of the Refugee Review Tribunal.  I explained the scheme to her.  She was taken to the Registry by my Associate after the hearing and steps were taken to procure advice for her. 

5. The applicant has not appeared today.  She sent to the Court a letter dated 5 June 2001 which materially reads as follows:

   “1.On or about August 2000, I engaged a migration agent for the application of a student visa in Australia.

   2.On or about 21 April 2001, I was told by my migration agent to appear at Queens Square for my visa application which was filed by the migration agent on 16 August 2000.

   3.At the federal court on 26 April 2001, I appeared without any idea about why I was there for and the matter was therefore adjourned to 8^th June 2001.

   4.At the end of the hearing on 26 April, I was given a copy of my application.

   5.On or about 3^rd May 2001, I went to see another migration agent with the copy of the application.  Only then I realised for the first time that my migration agent has lodged an application for a Protection Visa for me.

   6.At all material time, I truly believe that the migration agent is to apply for a student visa for me.

   7.The Protection Visa application was lodged without my knowledge.

   8.The applicant’s signature in the Protection Visa application was not my signature.

   9.The facts provided in the Protection Visa application were untrue.

   10.I have never lived at 35/5 Help Street Chatswood and is now living at Room 6, 263 Riley Street Surry Hills NSW 2010.”

6. It will be noted the applicant claims she has never lived at 35/9 Help Street, Chatswood.  That may be true.  It is also true, as pointed out by Mr Wilson, solicitor for the Minister, that the applicant has shown this address on numerous documents filed in support of her application for a protection visa.

7. It will also be noted that in paragraph 8, she says the applicant's signature on the protection visa application is not her signature.  It is not possible for me to be certain about this.  All I can say is that I agree with Mr Wilson that, at least from a non-expert view, the signature seems to be similar to the signature set out in the letter. 

8. It is clear the appropriate course is for the application for review to be dismissed.  The applicant knew the matter was to be heard today but has elected not to appear.  In any event, on her own statement, she is not seeking a protection visa. 

9. The matter that has given me greater concern is whether I should take the usual course of ordering that the applicant pay the Minister's costs.  If a visa protection application had been made without her knowledge, and the proceeding in this Court had been instituted without her instructions, then it would be wrong to order her to pay the Minister's costs. 

10. Mr Wilson suggests I should not accept what is set out in the letter.  I am inclined to that point of view.  It seems to me unlikely that an application for a protection visa was submitted without the applicant’s knowledge or consent.  I certainly have great difficulty in reconciling such a situation with the events of the directions hearing, where I made reference to the Refugee Review Tribunal, without any questions by the applicant.  However, the claim is made.  So I think the course I should take is to make an order for costs, but reserve liberty to the applicant to make an application in respect of that order, if so advised.  If the applicant can put before the court, evidence that establishes that she did not in fact instruct the commencement of this proceeding, and was unaware of its nature, then I would feel constrained to review the order for costs.  In that situation, no doubt, the Minister would be anxious to carry out his own investigation about the truthfulness of the applicant’s allegations concerning the migration agent.  However, it may be premature to do that, until there is some evidence to back up the statements made in the applicant’s letter.

11. The order that I make is that the application for review be dismissed.  I order that the applicant pay the respondent's costs.  I grant leave to the applicant to apply in relation to the costs order if she wishes to do so.  In that event, evidence in support of the letter of 5 June 2001 must be put before the Court.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             26 June 2001

The Applicant did not appear
Counsel for the Respondent:	B Wilson
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	16 May 2001