NBCR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1779

FEDERAL COURT OF AUSTRALIA

NBCR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1779 NBCR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N321 OF 2004 EMMETT J 6 MAY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N321 OF 2004

BETWEEN: NBCR

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 6 MAY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the Minister's costs in the sum of $2000. 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 N321 OF 2004

BETWEEN: NBCR

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 6 MAY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant claims to be a citizen of the Peoples Republic of China. He arrived in Australia on 25 May 2003 and on 12 June 2003 lodged an application for a protection class XA visa under the Migration Act 1958 (Cth) ('the Act'). On 19 June 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 17 July 2003 the applicant applied to the Refugee Review Tribunal ('the Tribunal') for a review of that decision. 2 On 30 January 2004, the Tribunal affirmed the delegate's decision not to grant a protection visa. The applicant then commenced a proceeding in this Court on 10 March 2004 purporting to be brought under s 39B of the Judiciary Act 1903 (Cth). No claim for relief is specified in the application to this Court. 3 The applicant was in Court when I fixed the matter for hearing. However, when the matter was called on for hearing today, there was no appearance for the applicant. The solicitor for the Minister informed the Court that correspondence enclosing a copy of the Minister's submissions had been returned undelivered. 4 The Minister asks the Court to make an order pursuant to O 32 r 2(1)(c) which provides that if, when a proceeding is called on for trial, the applicant is absent, the Court may dismiss the action. 5 The application to the Court contains only the following material: '1. The RRT found that the applicant had failed to satisfy the basic requirement for the grant of a visa. In making this finding, the RRT ignored parts of the applicant's claims in the statement attached to her application for the relevant submitted. In doing so, the RRT ignored relevant material and 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 the relevant visa and give rise to jurisdictional error. 2. The above jurisdictional error affected the exercise of power of the RRT.' The applicant is, in fact, male. At the directions hearing on 26 March 2004, I drew the applicant's attention to the reference in the application that uses the feminine gender 6 In its reasons, the Tribunal referred to a letter sent by it to the applicant inviting him to attend a hearing before the Tribunal. The Tribunal also informed the applicant in that letter that it was unable to make a favourable decision on the material currently before it. The Tribunal received a response to the invitation, indicating that the applicant would attend and that he required an interpreter. However, the applicant did not appear at the scheduled hearing and neither he nor his authorised agent have since contacted the Tribunal. The Tribunal therefore proceeded to make a decision in his absence. 7 The Tribunal's reasons record that the applicant claimed to fear persecution in China because of his involvement in Falun Gong activities. The Tribunal considered that there was insufficient information to enable it to be satisfied that the applicant is a true Falun Gong adherent. Because he failed to attend, the Tribunal was unable to ascertain the level of his knowledge of Falun Gong and was unable to ask him about Falun Gong exercises and philosophy. The Tribunal was therefore unable to find that the applicant is a Falun Gong practitioner and as a result was not satisfied that the applicant had been of any adverse interest to the authorities in China. 8 On the material before the Court, there is absolutely no substance in any claims made by the applicant that there was jurisdictional error on the part of the Tribunal. In the circumstances, it is appropriate to accede to the Minister's request that the application be dismissed pursuant to O 32 r 2(1)(c).