Chi, Tong Chun v Minister for Immigration & Ethnic Affairs [1997] FCA 692

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 396 of 1996 ) GENERAL DIVISION )

BETWEEN: TONG CHUN CHI

Applicant

AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

First Respondent

JUDGE(S): EMMETT J PLACE: SYDNEY DATED: 10 JULY 1997

EX TEMPORE REASONS FOR JUDGMENT This application was brought pursuant to order 54B of the Federal Court Rules, seeking a review of the decision of the Refugee Review Tribunal given on 15 April 1996 affirming the delegate's decision to refuse to grant the applicant a protection visa. When the matter was called for hearing this morning, the solicitor for the Minister indicated that a communication had been received from the applicant in the following terms, and I quote: "I withdraw my application on the judgment that the subject is quite complicated and ambiguous, subject on the limited passage of the codes [sic]. I judge that I don't have such power of knowledge to go through the passage [sic]. I truly thank for your assistance, accept sincere apology." Having been informed of receipt of that communication I arranged for my associate to speak to the applicant and I am told and have informed the solicitor for the Minister that the applicant confirmed that he did not wish to proceed with his application. My associate also raised with the applicant the question of costs and indicated that there was a prospect that if the application were not proceeded with, the applicant would be urged to pay the Minister's costs. The applicant's response was that he had no money and that the filing fees had been waived. The Minister now asks that the proceedings be dismissed. That appears to me to be the appropriate course to adopt. The reasons for the decision of the Tribunal indicate that the applicant has made quite a number of applications for visas which would entitle him to remain in Australia. Since 1990 he has made various applications to the Department for residency in Australia. None of those claims was successful. Due to the failure of those applications and the failure of the applicant to leave Australia he was notified in December 1992 that his case was being referred to the Minister to obtain an order requiring him to leave Australia. Shortly thereafter he lodged a refugee status application. The decision to refuse that application was made on 27 April 1993. The applicant applied for a review of the decision. The Tribunal reviewed the application and affirmed the delegate's decision on 31 October 1994. The applicant then lodged with the Department on 30 November 1994 a second protection visa application, claiming to be a refugee. That application was refused by the delegate and the applicant applied for review of that decision by the Tribunal on 9 October 1995. It is that application which was the subject of the decision on 12 April 1996. In its reasons the Tribunal expressed considerable sympathy for the applicant, since he has been outside his country of origin for 30 years. However the material contained in the reasons for decision indicate that the grounds specified in the application to this court were very unlikely to be made out. In the absence of any appearance for the applicant today and in the light of the indication by the applicant in the manner to which I have referred that he does not with to pursue the application, I consider that it is appropriate that the application be dismissed. I also consider that it is appropriate, having been asked to do so, to order that the applicant pay the Minister's costs of the proceedings. However, I also direct the Minister to communicate with the applicant in writing, informing him of the court's order and drawing the attention of the applicant to the rules which entitle a party against whom an order has been made in his absence, to apply to have the order set aside. I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett