NASC v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCA 926

FEDERAL COURT OF AUSTRALIA

NASC v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCA 926 NASC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N734 OF 2003 EMMETT J 1 AUGUST 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N734 OF 2003

BETWEEN: NASC

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 1 AUGUST 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the application be dismissed pursuant to O 10 r 3(2); 2. the applicant pay the respondent's costs in the sum of $1000; 3. the respondent inform the applicant in writing of the terms of these orders and of the terms of O 35 r 7(2)(a). 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 N734 OF 2003

BETWEEN: NASC

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 1 AUGUST 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant, together with his former common law wife, claim to be citizens of Indonesia. They arrived in Australia on 18 May 2002. On 5 June 2002, they lodged an application for protection visas under the Migration Act 1958 (Cth) ('the Act'). On 24 June 2002, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), refused to grant protection visas and, on 20 July 2002, the applicant and his former common law wife, applied for review of that decision by the Refugee Review Tribunal ('the Tribunal'). On 29 April 2003, the Tribunal affirmed the decision not to grant protection visas. 2 On 18 June 2003, the applicant applied to this Court for orders under s 39B of the Judiciary Act 1903 (Cth) in respect of the decision of the Tribunal. The return date of the application was 11 July 2003. On that occasion there was no appearance for the applicant when the matter was called by the Deputy District Registrar. The Deputy District Registrar stood the matter over to today before me for directions. Again, there was no appearance for the applicant when the matter was called. The Minister therefore seeks an order under O 10 r 3(2) of the Federal Court Rules for dismissal of the application. That rule provides that if no applicant appears before the Court on a directions hearing the Court may dismiss the application. 3 On 26 June 2003, the Minister's solicitor wrote to the applicant at the address for service specified in the application. That letter informed the applicant of the names of legal service providers who may be prepared to provide pro bono advice. The letter also informed the applicant that if he did not attend the directions hearing fixed for 11 July 2003 then the Minister would seek to have the application dismissed. 4 On 11 July 2003, the Minister's solicitor wrote again to the applicant at the address shown in the application informing the applicant that the matter had been listed for further directions today before me. The letter also informed the applicant that if he did not attend today the Minister would seek orders for dismissal. 5 I have read the reasons of the Tribunal. Those reasons record that the applicant and his former common law wife claimed to fear persecution because they are ethnic Chinese. Both claimed not to have been discriminated against, however, because they were Catholics. The Tribunal did not accept claims made by the female applicant before the Tribunal that she had been nearly raped and had been threatened at knife point. The Tribunal did not accept that Chinese are not given protection in Indonesia as claimed by the applicants. The Tribunal gave weight to reports from the Department of Foreign Affairs and Trade that, while racial discrimination against ethnic Chinese exists today in Indonesia, it is no longer supported by the State of Indonesia. The Tribunal did not accept the claims made by the applicant that the rule of law in Indonesia had degenerated remarkably since President Megawati came to power. 6 While the Tribunal accepted that Chinese in Indonesia can be the recipients of racial discrimination, it considered that the incidents recounted by the applicant before it did not themselves amount to persecution. The Tribunal concluded, therefore, that the claims made did not justify a conclusion that either the applicant or his former common law wife had a real chance of being persecuted for a Convention reason. 7 The grounds specified in the application to this Court are as follows: '1. That a breach of the rules of natural justice occurred in connection with the making of the [d]ecision. 2. That the applicant was denied procedural fairness in connection with the making of the decision. 3. That the decision involved an error of law, whether or not the error appears on the record decision. 4. That procedures that were required by law to be observed in connection with the making of the decision were not observed. 5. That the making of the decision was a proper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. 6. That there was no evidence or other material to justify the making of the decision. 7. That the decision was otherwise contrary to law.'