Wang v Minister for Immigration and Multicultural Affairs

[2000] FCA 903

FEDERAL COURT OF AUSTRALIA

Wang v Minister for Immigration & Multicultural Affairs
[2000] FCA 903

Migration Act 1958 (Cth) s 36(2)

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 162 ALR 577

BAO YING WANG v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 1368 OF 1999

GYLES J
SYDNEY
18 April 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1368 OF 1999

BETWEEN:	BAO YING WANG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	18 April 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant to pay the costs of the respondent.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1368 OF 1999

BETWEEN:	BAO YING WANG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	18 April 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an order for review concerning the decision of the Refugee Review Tribunal dated 2 November 1999 which concluded that it was:

   “…not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention”

   and therefore concluded that the applicant did not satisfy the criterion set out in section 36(2) of the Migration Act 1958 (Cth) (“the Act”) for a protection visa and affirmed the decision not to grant a protection visa. I need not set out the prior history of the matter beyond noting that it goes back to the arrival of the applicant in Australia on 27 January 1994, and has involved hearings by three separately constituted Refugee Tribunals, as well as a previous application to this Court.

2. The application itself refers to four grounds which are set out in paragraph 1 of the application and I need not set them out in this judgment.  They included no particulars in terms of the statutory grounds themselves.

3. There was apparently filed with the application a statement dated 18 November 1999 which the applicant tells me today was prepared by his agent.  There being an absence of particulars of the grounds, the Court ordered, on 15 December 1999,

   "that the applicant file and serve a statement of particulars and any affidavit material upon which he will rely on or before 23 January 2000". 

   That order was not complied with.  It was further ordered

   "that the applicant file and serve written submissions seven working days prior to the hearing date". 

   That was not complied with.

4. When the matter was called on this morning, counsel for the respondent submitted that in those circumstances the matter should be dismissed pursuant to O 40 r 5 of the Federal Court Rules.  I indicated that I was not prepared to accede to that request as the respondent had not availed himself of the liberty to apply, reserved by the orders of the Court, notwithstanding the failure of the applicant to comply with the orders as long ago as 23 January 2000.

5. I indicated that my inclination would have been to stand the matter over to enable proper particulars to be given so that the Court would not be confronted with a morass of unfocussed material.  Counsel for the respondent, however, submitted that it was the applicant's burden to produce and prove his case, and if the respondent was content to go on the matter should proceed on the day set for hearing.

6. I acceded to that submission.  The applicant, who is unrepresented,  when called upon to present his case referred me to the statement of 18 November 1999, which is Exhibit “A” in the proceedings.  I do not set it out in this judgment but it is an argument which, if correct, would suggest that the Refugee Review Tribunal erred on the facts, and on the merits, when dealing with the claims of the applicant.  It does not purport to tie back to the general grounds raised in the application itself.

7. The material orally added in the course of argument by the applicant was, by and large, to the same effect.  He clearly takes the view that the Tribunal has laboured under a misunderstanding as to the Chinese way of life, and various aspects of his life story.  He also suggests that the Tribunal was not prepared to approach his case on a judicial basis but were rather looking for loopholes to not grant his application.  He put that, as he had been successful before the Court previously, and his situation remains the same, he should succeed again.

8. Counsel for the respondent submits that the applicant has simply not produced a case pursuant to the statute, bearing in mind the limited grounds that can be relied upon in the Court. He put that the decision of the Tribunal is a lengthy analysis of claims and evidence which followed two days of examination of the applicant. He submits that there is no issue within section 476 of the Act raised by the applicant and the matter must fail.

9. The applicant's reference to the previous decision of the Court is somewhat wide of the mark.  I have not gone back to look at that decision but the most that it could amount to was an order that the Tribunal should look at the matter afresh and decide it on the merits according to law.  That is a new exercise and must stand or fall on its own merits rather than as a result of a previous course of conduct.

10. I am informed that the previous decision in any event turned upon a view of s 420 that has since been discredited by the decision of the High Court in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 162 ALR 577. Whether that be so or not does not matter; the present decision of the Tribunal must be looked at in itself.

11. Insofar as the oral submissions of the applicant may have sought to invoke a claim of bias - and I am not sure that they did - there is, in my view, no proper basis to support it.  I have read the decision of the Tribunal and it provides no support for the view that the decision was affected by actual bias. 

12. So far as the other complaints that have been made, both in the written statement, exhibit A, and in the oral submissions of the applicant, all, in my opinion, relate to criticisms of the decision of the Tribunal on the merits. I am quite unable to judge whether the criticisms and complaints are correct or not. For all I know they are correct, but the Act does not permit this Court to investigate the merits. Under the circumstances I have no alternative but to dismiss the application.

13. Under the circumstances, I think it is inevitable that costs follow the event, and I order that the applicant pay the costs of the respondent.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:  3 July 2000     

Counsel for the Applicant:	Applicant in person
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 April 2000
Date of Judgment:	18 April 2000