NBIL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 29 (28 January 2005)

NBIL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 29

NBIL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1552 OF 2004

ALLSOP J
28 JANUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1552 of 2004

BETWEEN:	NBIL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	28 JANUARY 2005
WHERE MADE:	SYDNEY

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	NSD 1552 of 2004

BETWEEN:	NBIL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	28 JANUARY 2005
PLACE:	SYDNEY

1 This is an appeal from orders made by Federal Magistrate on 15 October 2004, in which the application originally filed in this Court and later transferred to the Federal Magistrates Court was dismissed with costs. The original application was an application under s 39B of the Judiciary Act 1903 (Cth) seeking judicial review of a decision of the Refugee Review Tribunal (the "Tribunal") in respect of a decision made by the Tribunal on 10 June 2004 and handed down on 5 July 2004, in which the Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa.

2 The Chief Justice has determined, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), that this appeal be heard by a single Judge of this Court. I have had the advantage of helpful written submissions drafted by Mr Beech-Jones of counsel, which I have read. The directions in this matter made by me with the appellant in person present on 16 November 2004, provided for the appellant filing and serving on or before 15 December 2004, any material she wished to be before the Court, and for written submissions on the appeal. No submissions were filed by the appellant.

3 The matter was listed for hearing in the presence on the appellant on 16 November 2004. The time and date fixed for hearing in the appellant's presence was 2.15 pm on 28 January 2005, that is, today. There has been no appearance by the appellant. I have had the matter called three times outside the Courtroom using the acronym or pseudonym used for the appellant pursuant to s 91X of the Migration Act 1958 (Cth). There was no appearance.

4 The history of the matter briefly is that the appellant is a citizen of the People's Republic of China. She was born on 7 January 1963. She arrived in Australia on 17 January 2004. She applied for a protection visa on 23 January 2004. Her application was refused by a delegate of the respondent Minister on 23 February 2004. An application was made to the Tribunal for review.

5 The Tribunal considered the appellant's application and came to the view that without further information it was not satisfied of the relevant matters under the Refugees’ Convention. Thus, the Tribunal invited the appellant to appear before it. The appellant declined this invitation.

6 In those circumstances, in an understandably short body of reasons, the Tribunal expressed the view that because of the generality and lack of specificity in the claims put forward in the appellant's application, and because it had no further assistance from the appellant in clarifying and illuminating the details in relation to those claims, it could not be satisfied that Australia owed the appellant protection obligations under and for the purposes of the Refugees’ Convention.

7 That state of affairs must be appreciated against the terms of ss 36 and 65 of the Migration Act. The issue before the Tribunal by reason of those sections was whether the Tribunal had, according to law, reached a relevant state of satisfaction. If it was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Refugees’ Convention, then the statute obliged the Tribunal to refuse the protection visa. Thus, in circumstances where on its face rationally, because of a generality of material, the Tribunal was not satisfied of those matters and where an invitation to the appellant to advance further material was not taken up, it is difficult to see how the Tribunal committed any jurisdictional error, unless it be the case that the lack of satisfaction on the existing material and the papers, was so irrational and far fetched as to betray some misunderstanding of the relevant task at hand. From my reading of the material this is not the case here.

8 When the matter came on before the Federal Magistrate, though the appellant was present, his Honour was not assisted by any oral submissions from the appellant, nor was the his Honour assisted by any written submissions from the appellant. The learned Federal Magistrate examined the terms of the reasons of the Tribunal in the context of the less than informative application that was before him. His Honour, after examining the reasons, could see no jurisdictional error. Likewise, I am unable to see any jurisdictional error in the approach of the Tribunal; nor am I able to see any error in the approach of the learned Federal Magistrate.

9 As I said earlier, in circumstances where there is a not irrational approach taken by the Tribunal that it lacks sufficient material to reach a state of satisfaction and in circumstances where that Tribunal is not assisted by any further information from the appellant for the visa, it is hard to see how, in the light of ss 36 and 65 of the Migration Act, there could be any other result other than the affirmation of the rejection of the visa application by the delegate.

10 In those circumstances, there being no apparent basis for any successful appeal, notwithstanding the absence of the appellant, I have proceeded with the appeal pursuant to Order 52 rule 38A(1)(d) of the Federal Court Rules, and on the material before me, in my view, I have no alternative but to dismiss the appeal and order that the appellant pay the respondent's costs, and I so order.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

The appellant did not appear.

Counsel for the Respondent:	Mr R Beech-Jones

Solicitor for the Respondent:	Phillips Fox

Date of Hearing:	28 January 2005

Date of Judgment:	28 January 2005