Shen v Minister for Immigration and Multicultural Affairs

[2002] FCA 494

FEDERAL COURT OF AUSTRALIA

Shen v Minister for Immigration and Multicultural Affairs [2002] FCA 494

SHEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1241 OF 2001

HILL J
11 APRIL 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1241 OF 2001

BETWEEN:	DING PING SHEN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HILL
DATE OF ORDER:	11 APRIL 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. the application be dismissed.
2. the applicant pay the respondent’s costs of the application.

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 1241 OF 2001

BETWEEN:	DING PING SHEN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HILL
DATE:	11 APRIL 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an application by Mr Ding Ping Shen, a national of the People's Republic of China, for judicial review of a decision of the Refugee Review Tribunal which affirmed the decision of the respondent, the Minister for Immigration and Multicultural Affairs or a delegate of the Minister, refusing the grant to him of a protection visa.

2. The application to the Court was made prior to the amendments to the Migration Act 1958 (Cth) ("the Act") inserting a new s 474 and accordingly the decision is not a “privative clause decision” as defined in that section.

3. The application claimed that the Tribunal's decision was reviewable because procedures to be required by law to be observed were not observed, the decision involved an error of law or that it involved an improper exercise of power.  No particulars were provided in anticipation of those grounds.

4. The matter came before me for directions on 5 October 2001.  On that day the applicant was present and had the assistance of an interpreter.  I set the matter down on that day for hearing on 29 March 2002 but stood the matter over for mention with a view to an earlier hearing date becoming available.  When the matter next came before me for mention in accordance with the order I had previously made on 12 December 2001 the applicant did not appear.  I vacated the hearing date of 29 March 2002, that being Good Friday, an earlier hearing date was not available and accordingly I listed the matter for hearing at 10.15am today.  I directed the Minister to notify the applicant of the changed hearing date.

5. There has been tendered today a letter from the solicitor of the respondent Minister addressed to the applicant at the address given by the applicant for service advising him of the new date for hearing.  Also tendered before me this morning is a further letter from the respondent's solicitors forwarding to him an outline of the submissions of the respondent.  When the matter was called this morning the applicant did not appear.  The solicitor for the respondent has advised me that he attempted to contact the applicant at the telephone number shown on the application to the Court.  That number was apparently the number of a migration agent who advised that he had received correspondence from the solicitors for the Minister and had passed them on to the applicant.

6. Counsel for the Minister submitted that I should dismiss the application having regard to the non-appearance of the applicant pursuant to Order 32, Rule 2(1)(c) of the Federal Court Rules.  I propose to do so.

7. I should say that I have read the decision of the Tribunal with some care, as I was aware that the applicant was unlikely to be represented before me this morning.  There is nothing in the Tribunal's reasons which suggested that any procedure had not been followed or that the decision involved an error of law or that there was in any way an improper exercise of power on the part of the Tribunal. Essentially the Tribunal did not accept the evidence of the applicant.  His case was in essence that he feared persecution if returned to China on the basis that he practised Falun Gong.  Certainly there was evidence before the Tribunal which if accepted by it might support the case that those who practise Falun Gong and particularly train others might have a well founded fear of persecution for that reason.

8. However, the Tribunal found the applicant not to be an impressive witness and particularly was not satisfied that he was or had ever been either a practitioner of or trainer of others in Falun Gong.  The Tribunal also considered other matters including arrests that the applicant had alleged and a possible claim that his participation in a pro-democracy activity in 1989 might found a claim to be a refugee within the meaning of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as modified by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 and thus support a claim that he was a person to whom Australia had protection obligations.

9. The Tribunal’s conclusion that it was not satisfied on the evidence before it that the applicant had a genuine fear of persecution on return to China thus depended upon the fact that it had not accepted the fundamental claims which the applicant made because it did not accept him as a truthful witness.  No grounds of judicial review would entitle the applicant to succeed in those circumstances.  Accordingly I would dismiss the application with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             11 April 2002

Counsel for the Applicant:	No Appearance
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	11 April 2002
Date of Judgment:	11 April 2002