Shi v Minister for Immigration and Multicultural Affairs

[1999] FCA 546

FEDERAL COURT OF AUSTRALIA

Shi v Minister for Immigration and Multicultural Affairs [1999] FCA 546

MIGRATION – application for a protection visa – no appearance by applicant at Refugee Review Tribunal hearing.

JING FENG SHI v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 618 of 1998

HILL J
28 APRIL 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALESDISTRICT REGISTRY	NG 618 OF 1998

BETWEEN:	JING FENG SHI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	HILL J
DATE OF ORDER:	28 APRIL 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        Application be dismissed

2.        Decision of the Refugee Review Tribunal be affirmed

3.        Applicant to 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 WALESDISTRICT REGISTRY	NG 618 OF 1998

BETWEEN:	JING FENG SHI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	HILL J
DATE:	28 APRIL 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant Jing Feng Shi, also known as Yen Ching Tan is a citizen of the Peoples Republic of China.  She arrived in this country in November 1995 and on 10 April 1996 lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  Her application was refused and on 19 June 1996 she applied to the Refugee Review Tribunal for review of the decision refusing to grant to her a protection visa.

2. On 21 April 1998 that Tribunal wrote to the applicant advising her that it had considered her application and other papers relating to it, but was unable to make a favourable decision on the basis of that information.  She was advised that a hearing was to be conducted on 18 May 1998 and that she should contact the Tribunal within a specified period about that hearing.  She was also advised that if she did not, a hearing would not take place and the Tribunal would reach its decision by reference to the evidence available then to it.  That letter was sent, according to the Tribunal, to the address stipulated by her as being either her residential address or address for service.

3. She apparently also had an adviser.  The adviser was notified but by that time apparently had no contact with her.  The applicant did not respond to that letter.  There is no evidence before me to suggest that it was not received, although this morning from the bar table she said not on oath that she may not have received papers from the Tribunal.  Be that as it may the Tribunal proceeded to consider her case.  Having done so it formed the view that it was not satisfied that she was a person to whom Australia had protection obligations and accordingly affirmed the decision not to grant to her a protection visa.

4. As it is required to do the Tribunal forwarded a copy of its decision to the applicant.  The decision is dated 18 May 1998.  The decision was forwarded to the applicant at the same address as the previous letter to which I have already referred inviting her to indicate whether she wished to attend the Tribunal hearing. 

5. The applicant obviously received that letter because on 23 June 1998 she lodged with the Court an application for an order reviewing the Tribunal's decision.  I note that in that application she stated her address for service to be a different address from that which she had previously notified the Refugee Review Tribunal.

6. The application to this Court came before Lindgren J on 24 July and was initially listed for hearing in September 1998.  The applicant attended that directions hearing.  On 7 September 1998 Lindgren J ordered that the application be fixed on a date to be advised.  On 21 October 1998, over six months ago, my associate advised her that her application was listed for hearing before me today.  He mentioned in that letter the importance of trying to obtain legal representation.  He enclosed a list of organisations that might assist. 

7. When the matter was called before me this morning the applicant requested that I stand over the hearing so that she could have a chance of obtaining legal representation.  She suggested a period of three months.  She said she had only recently come to know a Chinese solicitor.  The initial impression she gave me was that the solicitor might or might not appear.  Although ultimately she said that he had agreed last night that he would appear for her.  It is somewhat strange if this was the case that he did not attend this morning.

8. Given the history of the case I am not convinced that standing over the case is ultimately likely to produce any real result.  It is true that it is an almost impossible task for an applicant not legally represented to seek to convince the Court that there is some error of law in a decision adverse to them.  Six months has elapsed since the applicant has known that the case would be heard today.  If legal representation was possible, six months suffices to obtain it.

9. I am reinforced in my view that an adjournment should not be granted, both by the fact that the applicant did not turn up before the Refugee Review Tribunal and by the fact that in the result it would be virtually impossible to challenge the Refugee Review Tribunal’s decision.  Parliament in its wisdom has taken the view that the jurisdiction of this Court to carry out judicial review of decisions of the Refugee Review Tribunal is very limited.

10. It is unnecessary here to set out the precise grounds of review which are permitted.  It suffices to say that in essence they require that there be shown some legal error.  The Tribunal's reasons set out in very brief form the substance of what the applicant had said in her application for a protection visa.  It noted that there were inconsistencies in the claims she made in her application for a protection visa and claims she made to departmental compliance officers.  The Tribunal took the view that in the absence of an explanation from her of these inconsistencies it could not be satisfied of the credibility of her claims. 

11. The fact that she did not ultimately attend no doubt led to this conclusion.  The Tribunal pointed out, as well, that her claims concerning breaches of China's business laws and that she had failed to pay taxes in China together with her claim of illegal departure were not matters falling within the 1951 United Nations Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees. For these reasons the Tribunal concluded that it could not be satisfied that she was a person satisfying the criterion set out in s 36(2) of the Migration Act 1958 for the grant of a protection visa.

12. It is difficult to see how in these circumstances any error of law can be shown.  Her application to the Court does not suggest one, rather it proceeds on the basis that the Court in some way can decide the merits of her application.  Unfortunately it cannot.  The applicant says also that I should adjourn the proceedings because she is stateless.  She says that there have been difficulties in obtaining passports both from the Malaysian Government and the Chinese Government.  There is no evidence before me of that, but I am prepared to accept it is true. 

13. However it is not a matter that has any relevance to the question of whether her application for judicial review to this Court should be proceeded with, let alone of course any basis for finding some error of law in the Tribunal's decision.  In the circumstances I would refuse the adjournment and being unable to detect legal error in the Tribunal’s decision would dismiss the application and affirm the decision of the Tribunal.

14. I order the applicant to pay the respondent's costs. 

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             28 April 1999

The Applicant appeared in person
Counsel for the Respondent:	F Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 April 1999
Date of Judgment:	28 April 1999