Yan v Minister for Immigration and Multicultural Affairs

[2001] FCA 1346

FEDERAL COURT OF AUSTRALIA

Yan v Minister for Immigration & Multicultural Affairs [2001] FCA 1346

YAN WEN YAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1209 of 2001

SACKVILLE J
SYDNEY
14 SEPTEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1209 OF 2001

BETWEEN:	YAN WEN YAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	14 SEPTEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant 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 WALES DISTRICT REGISTRY	N1209 OF 2001

BETWEEN:	YAN WEN YAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	14 SEPTEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is the first directions hearing in respect of an application for an order of review. The application was filed on 17 August 2001. The application seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) made 11 July 2001. It appears that the application was prepared by the applicant personally as it does not identify any ground of review available under Part 8 of the Migration Act 1958 (Cth) (“the Act”). 

2. When the matter was called today there was no appearance on behalf of the applicant.  In these circumstances, the solicitor acting on behalf of the Minister has applied for an order pursuant to O10 r 3(2) of the Federal Court Rules (“FCR”) dismissing the application by reason of the non-appearance of the applicant.

3. I should briefly set out the sequence of events.  As I have already noted, the Tribunal’s decision was handed down on 11 July 2001.  The Tribunal affirmed a decision of the Minister’s delegate refusing to grant the applicant a protection visa.  In substance the applicant's claim was that he was a member of the Falun Gong organisation in China and that he feared persecution by reason of his membership in that organisation and his beliefs as a Falun Gong practitioner.

4. The applicant claimed that he had left China illegally in June 1999 because he feared that he would be arrested along with many other Falun Gong followers after a religious demonstration that occurred in April 1999.  The applicant further claimed that if he were forced to return to China he would be subject to persecution at the hands of Chinese authorities by reason of his continuing membership in Falun Gong. 

5. Having considered the applicant's claims in some detail and also considered independent information relating to the position of Falun Gong practitioners in China, the Tribunal rejected the applicant's claims.

6. The Tribunal accepted that the applicant had some knowledge of Falun Gong and was a practitioner, but considered that that knowledge had been acquired in Australia for the purpose of advancing the applicant's claims for a protection visa.  More specifically, it found that his claims to be a committed practitioner of Falun Gong in China were without substance.  The Tribunal went on to address the question of whether the applicant's activities in Australia would place him at risk of persecution in the event of his return to China.  It was not satisfied that the applicant would be subject to any such risk upon his return.

7. According to the evidence before me, the Tribunal sent a letter dated 11 July 2001 to the applicant at his address for service enclosing a copy of its decision.  It appears that that letter was sent by registered post on 13 July 2001. 

8. As I have noted, the application to this Court was filed on 17 August 2001. The Minister filed a notice of objection to competency on 31 August 2001. This was based on the requirement imposed by s 478(1)(b) of the Act that an application for review be lodged with the Registry of the Federal Court within 28 days of the applicant being notified of the Tribunal’s decision.  The Minister's position is that the application was not filed in the Court until more than 28 days after the applicant was notified or deemed to have been notified of the decision.

9. Evidence has been tendered of a letter advising the applicant of organisations that might be able to provide legal assistance and of another letter enclosing the notice of objection to competency.  These letters were sent on 24 August 2001 and 3 September 2001 respectively, to the applicant's address for service.  Neither of these letters specified the time and date for the first directions hearing.  However the appointment for the directions hearing, in accordance with the practice of the Court, is noted on the application filed on behalf of the applicant.  That notation indicates that the hearing was set down for 9.30 am today.

10. Having regard to this chronology of events it seems to me that the absence of the applicant at the first directions hearing justifies an order being made pursuant to FCR, O 10 r 3(2).  The applicant plainly had notice of the time and date for this directions hearing.  There is no explanation for his failure to appear.  I take into account that the application filed in Court does not identify any grounds of review that are available under the Act.  Moreover, the Minister’s notice of objection to competency, if well-founded, would prevent the Court addressing the substantive application for review.

11. Accordingly, I order that the application be dismissed and that the applicant pay the Minister's costs. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             18 September 2001

The Applicant was unrepresented.

Solicitor for the Respondent:	Mr Z Chami appeared on behalf of Clayton Utz
Date of Hearing:	14 September 2001
Date of Judgment:	14 September 2001