NBDE of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1756

FEDERAL COURT OF AUSTRALIA

NBDE of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1756 NBDE OF 2004 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N428 OF 2004 EMMETT J 30 AUGUST 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N428 OF 2004

BETWEEN: NBDE OF 2004

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 30 AUGUST 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The proceeding be dismissed pursuant to Order 32 rule 2(1)(C). 2. The applicant pay the Minister's costs in the sum of $2500. 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 N428 OF 2004

BETWEEN: NBDE OF 2004

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 30 AUGUST 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant claims to be a citizen of the People's Republic of China. He arrived in Australia on 20 February 2003 and, on 21 March 2003, applied for a Protection Class XA Visa under the Migration Act 1958 (Cth) ('the Act'). On 13 May 2003 a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), refused to grant a protection visa and, on 12 June 2003, the applicant applied to the Refugee Review Tribunal ('the Tribunal') for review of that decision. On 31 January 2004 the Tribunal affirmed the decision not to grant a protection visa. On 26 March 2004, an application for an order of review in respect of the decision was filed in this Court. 2 On 23 April 2004 I gave directions by consent, inter alia, that the applicant file and serve an amended and fully particularised application, together with an affidavit in support, and any evidence upon which he proposes to rely on or before 28 May 2004. That direction has not been complied with. When the matter was called on for hearing today, there was no appearance for the applicant. That is consistent with his conduct in the past. 3 On 21 November 2003 the Tribunal wrote to the applicant, with a copy to his adviser, notifying the applicant that the Tribunal had considered the material before it in relation to his application, but was unable to make a decision in his favour on that information alone and inviting him to a hearing of the Tribunal on Thursday, 8 January 2004 to give oral evidence and present arguments in support of his claims. On 5 January 2004 the applicant advised the Tribunal in writing that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. The applicant did not put any additional material before the Tribunal in response to its letter of 21 November 2003. 4 For reasons that it set out, the Tribunal concluded that there was nothing in the material provided by the applicant that enabled it to be satisfied that any investigation to which the applicant claimed to have been subjected in China amounted to persecution for a Convention reason. On the limited evidence available provided by the applicant, the Tribunal was not satisfied as to his claim that he was or ever had been involved in the Falun Gong movement. 5 Having regard to the want of appearance on the part of the applicant today, the Minister asks for an order pursuant to Order 32 rule 2(1)(C) that the proceeding be dismissed summarily. In the circumstances, since there is nothing in the material to indicate that there is any substance in the application, I propose to accede to that request. The application filed on 26 March discloses no possible ground upon which it could be asserted that the decision of the Tribunal was anything other than a decision under the Act. It will follow, therefore, that the decision was subject to s 494 and this Court has no power to interfere with it.