Shi v Minister for Immigration and Multicultural Affairs

[2000] FCA 1103

FEDERAL COURT OF AUSTRALIA

Shi v Minister for Immigration & Multicultural Affairs [2000] FCA 1103

YUN QING SHI v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 318 of 2000

HILL J
2 AUGUST 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 318 OF 2000

BETWEEN:	YUN QING SHI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	2 AUGUST 2000
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. Before the Court is an application by Yun Qing Shi (“the applicant”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”), not to grant to her a protection visa.  The matter has been called outside the Court but there has been no appearance for the applicant.  Given the circumstances of what happened in the Refugee Review Tribunal, that is not surprising.  The application filed by the applicant claims that she is aggrieved by the Tribunal’s decision on a number of grounds.

2. As appears from the Tribunal’s decision, the applicant was advised by letter that the Tribunal had considered the papers relating to the application but was unable to make a favourable decision on that information alone.  She was advised that she was entitled to come to the hearing of the Tribunal to give oral evidence in support of her claims on a nominated date.  The applicant, in her application, says that an adviser had called the Tribunal to request a postponement of the hearing due to “other commitments” and that the Tribunal had written indicating agreement and that a new hearing was to be held on 11 February 2000.

3. The applicant says, however, that she did not attend the later date because she could not go to the second interview, that she informed the Tribunal of this fact but was not given an alternative date.  She says that she therefore has been refused the opportunity of a hearing.  There is no evidence before the Court that supports the contention that the applicant did in fact seek to attend an interview on another date and was refused.  Even if this were a ground of judicial review, and it could be of course if there were justifiable reasons why the applicant was unable to attend but nevertheless she was given no opportunity to do so.  A factual basis for any such claim has not been made out.

4. The remaining grounds of the application allege actual bias and no evidence or other material to justify the making of the decision.  I have read the decision of the Tribunal and there is nothing in it which suggests any actual bias on the part of the Tribunal, nor is this a case where there was no evidence or other material to justify the Tribunal making the decision.  Where room for legitimate doubt exists, and this was such a case, an applicant who simply does not attend an interview is likely to have difficulty in satisfying the Tribunal that the applicant is a person to whom Australia has protection obligations.

5. It is unnecessary to set out the facts as they were found by the Tribunal or the various doubts which the Tribunal had expressed about the applicant’s claim. I am unable to see in the Tribunal’s reasons, particularly where it would seem the applicant deliberately absented herself from the Tribunal, any reviewable error falling within the grounds of s 476(1) of the Migration Act 1958.  The section confers jurisdiction on this Court and nominates the grounds of judicial review.  In the circumstances, I will dismiss the application with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             2 August 2000

Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 August 2000
Date of Judgment:	2 August 2000