NASI v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 895

FEDERAL COURT OF AUSTRALIA

NASI v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 895 NASI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 727 OF 2003 LINDGREN J 21 AUGUST 2003 PERTH (VIA VIDEO LINK TO SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 727 OF 2003

BETWEEN: NASI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 21 AUGUST 2003

WHERE MADE: PERTH (VIA VIDEO LINK TO SYDNEY)

THE COURT ORDERS THAT: 1. The applicant's motion brought by notice of motion filed on 24 July 2003 be dismissed. 2. The applicant pay the respondent's costs of the motion. 3. The amount of the costs referred to in order 2 is fixed at $1000. 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 N 727 OF 2003

BETWEEN: NASI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE: 21 AUGUST 2003

PLACE: PERTH (VIA VIDEO LINK TO SYDNEY)

REASONS FOR JUDGMENT 1 The applicant filed the application which commenced this proceeding on 16 June 2003. She seeks review of a decision of the Refugee Review Tribunal ('the Tribunal') made on 28 April 2003. By that decision the Tribunal affirmed a decision of a delegate of the respondent Minister not to grant a protection visa to the applicant. 2 The first directions hearing was fixed for 23 July 2003. The applicant did not appear and I dismissed the application and ordered her to pay the respondent's costs. 3 By a notice of motion filed on 24 July 2003 the applicant sought an order setting aside the order of dismissal. It is that motion which is before the Court today. The applicant, who is not legally represented but is assisted by an interpreter, relies on an affidavit by her sworn 23 July 2003. Her affidavit states as follows: 'I would like to ask the Federal Court to vary or set aside the order to dismiss my application for review of a decision made by the Refugee Review Tribunal to affirm the decision made by the Department of Immigration, Multicultural and Indigenous Affairs not to grant me the protection visa. I admit that I was late for the direction hearing held at 9.30 am on 23 July 2003 at the Federal Court of Australia. I arrived at level 20 of the Law Courts Building at 9.50, and was told that my application had been dismissed. I spent too much time in finding the building because I am not familiar with that area. Also due to my poor English, I had problem asking for help from passengers. I could not find the building until a passenger who can speak Mandarin helped me and accompanied me to the Court. The fault is entirely mine and I sincerely hope the Court will provide me the chance to have my case heard. Please grant me another chance for the attendance of a direction hearing.' 4 Obviously the case is one in which, in normal circumstances, the order of dismissal would be set aside: it would be a gross injustice to deprive an applicant of her day in Court only because she could not find the courtroom and arrived 20 minutes late. 5 The Minister does not dispute this but submits that the applicant's case is doomed to fail in any event and that the order of dismissal should not be set aside for that reason. 6 I accept this submission for the reasons which appear below. 7 The applicant is a national of the People's Republic of China. She arrived in Australia on 27 May 2002. She did so on a Chinese passport issued on 5 March 2002 and a tourist visa issued on 22 May 2002 which was valid for a two week stay from the date of arrival. 8 On 31 May 2002 the applicant lodged the application for the protection visa (Class XA). She completed that application with the assistance of a migration agent, Jack Meng of Jack Meng Immigration & Translation ('JMIT'), Suite 528 Pacific Trade Centre, 368 Sussex Street, Sydney. A delegate of the Minister refused to grant the visa on 20 June 2002. 9 The applicant applied to the Tribunal on 20 June 2002 for review of the delegate's decision. In her application to the Tribunal she stated her home address as Shop 10, 16-20 Henly Road, Homebush West, her mailing address as 528/368 Sussex Street, Sydney, and her 'authorised recipient' as Jack Meng also of the last address mentioned. 10 On 13 March 2003 the Tribunal wrote to the applicant care of JMIT, 528/368 Sussex Street, Sydney, advising her that there would be a hearing which she was invited to attend on 24 April 2003. In addition, the Tribunal sent her a copy of the letter addressed to her at Shop 10, 16-20 Henly Road, Homebush West. 11 The applicant did not appear at the hearing before the Tribunal on 24 April 2003. The Tribunal noted this fact and examined the case which was made for the applicant in the statement which had accompanied her initial application for the protection visa. 12 In substance, the applicant's claim was one of persecution for reason of political opinion. She claimed that she was a union representative at the factory where she worked. More precisely, she claimed that from 1994 to 1999 she was the Vice President of the Labour Union in the factory. She claimed that the local government decided to reduce the workforce at the factory and that she opposed that decision. She said that as a result she was dismissed as 'President of Labour Union' and 'became a normal worker'. She claimed that later she was 'fired as a normal worker together with many of her workmates'. She alleged, without providing details, that after she was dismissed, the 'government went on persecuting' her, and 'set obstacles preventing her from getting a new job' due to her 'different political opinions'. Finally, she claimed, again without providing details, that she would be persecuted by 'the local governors and their factory leaders' in China. The material quoted above is from the Tribunal's account in its Reasons for Decision of the statement which the applicant provided in support of her original application for the visa. 13 In support of the application to the Tribunal for a review of the delegate's decision, the applicant provided nothing further but simply directed the reader to the Departmental file. 14 The Tribunal remarked on the lack of detail supplied by the applicant. It noted that the applicant had left China on a genuine Chinese passport and concluded that she was not a person who was of interest to the authorities. 15 The Tribunal accepted that the applicant had been dismissed in 1999 and had subsequently found it difficult to obtain work and to support herself. However, on the basis of independent country information relating to China, the Tribunal observed that the changing nature of employment in that country and the declining relevance of the 'work unit' meant that an increasing number of individuals previously employed by the government have either been retrenched or placed on indefinite leave, because the former enterprises are no longer economically viable in China's increasingly capitalist economy. 16 In summary, the Tribunal said it was not satisfied on the available information that the applicant was prevented from obtaining employment in the private sector by the authorities in China, or that those authorities would prevent her from obtaining work in the private sector in the reasonably foreseeable future. 17 The Tribunal declared itself not satisfied either that the applicant had been troubled by the authorities on account of her expression of political opinion. The concluding paragraph in the Tribunal's reasons for decision was as follows: 'The applicant was put on notice that the Tribunal was not satisfied by the evidence she provided in support of her application. She did not provide further information despite ample opportunity to do so. Nor has the applicant given the Tribunal the opportunity to explore her claims with her at a hearing. Many questions regarding her previous and future circumstances remain unanswered. In the absence of further information, and in view of the above findings, the Tribunal is not satisfied by the evidence that the applicant has a well-founded fear of persecution in China for a Convention reason.' 18 In her application to this Court the applicant has set out the following grounds: '1. The RRT found that the applicant had failed to satisfy the basic requirement for the grant of the visa. In making this finding, the RRT ignored parts of the applicant's claims in the statement attached to her application for the relevant visa submitted. In doing so, the RRT ignored relevant material or reached a decision that could not reasonably have been reached, or reached a decision without reasonable or rational foundation, giving rise to the incorrect finding that the applicant is not entitled to a protection visa and give rise to jurisdictional error. 2. The above jurisdictional error affected the exercise of power of the RRT.' 19 On the hearing today the applicant has said simply that the Tribunal made a mistake and she hopes that the Court will give her the decision which she seeks. 20 In response to a question put by me, the applicant said that she did not appear before the Tribunal because she did not know that the hearing was on. Noting that the Tribunal's notice of the hearing date was sent to the applicant at the same address as that to which notice of its decision unfavourable to her was sent, I asked her how she learned that the Tribunal had decided against her. She appeared to say that she first knew about that decision when she applied to this Court! I asked her whether she had been assisted in the preparation of her application to this Court and she replied that a friend had helped her but she had not had to pay money for that assistance.