NASH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1469 (4 December 2003)

Last Updated: 16 December 2003

FEDERAL COURT OF AUSTRALIA

NASH v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1469

NASH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N755 of 2003

MADGWICK J

4 DECEMBER 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N755 of 2003

BETWEEN:	NASH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	4 DECEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to pay the Minister's costs which I assess in the sum of $3000.

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	N755 of 2003

BETWEEN:	NASH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	4 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

1 This is an application for judicial review of a decision of the Refugee Review Tribuanl (`the Tribunal') given on 29 April 2003 affirming a decision of a delegate of the respondent Minister refusing to grant the applicant a protection visa.

2 The applicant is a national of China who has twice been to Australia. He came here first on 19 October 2001 and departed on 8 November 2001. He arrived again on 17 February 2002. On each occasion he entered Australia on a visitors visa. On 22 February 2002 he applied for a protection visa.

3 The applicant worked for a state owned enterprise for a good many years and he claimed that he had been unfairly dismissed from this employment along with other employees. He says that he participated in public demonstrations in 1999 to express his protest against what had befallen him and his fellow workers. He claims that he was arrested by police and detained for a week. Thereafter, he was unable to obtain any other work and he says that he lost his social welfare benefits. It appears that he had applied for work with other state enterprises and his claimed leading part in the public protests was the reason that he could not obtain work. He also claimed that he could not go into business on his own account because his activities as a protester had the result that he was refused a bank loan.

4 After the applicant lodged a protection visa with the respondent's department, the respondent's delegate wrote to the applicant very fairly setting out a number of items of information that the delegate had adverse to the applicant's claim and inviting the applicant to attend for an interview in order to discuss that information. The information was to the effect that it was very unlikely that a person who had come to the adverse attention of the Chinese authorities as a labour activist would be issued with a passport, or granted an exit visa; that it appeared implausible that if the applicant was truly a refugee from extreme economic persecution he would voluntarily return to China after his first visit to Australia and that, as he apparently had had sufficient money to travel overseas on at least three occasions since 1999, it appeared unlikely that the applicant had suffered financially from any incapacity to earn an income by work or through social security benefits.

5 The applicant was warned that if he did not come to the interview the delegate would treat that as an indication that he did not wish to contest the information and inferences referred to and that his application for a protection visa would be decided without further delay based on that information and upon other information found on his file. The applicant did not attend the interview.

6 The delegate's decision was given on 15 April 2002 and a fortnight later the applicant sought review of that decision by the Tribunal.

7 The Tribunal invited the applicant to attend a hearing and informed him that the Tribunal was unable to make a favourable decision to the applicant on the material then available to it. A copy of the written invitation was also sent to the applicant's migration agent. The applicant indicated that he would like to attend the scheduled hearing however he did not then attend nor did he contact the Tribunal to explain his absence. The Tribunal thereupon proceeded to make its decision without taking any further steps to invite the applicant to appear before it.

8 The Tribunal Member took the view that there had been a rapid increase in employment opportunities in the private sector in China and that there was nothing to satisfy the Tribunal that the applicant had been unable to obtain work in that sector or that he would be unable to do so in the reasonably foreseeable future. In relation to the claim of arrest and detention and possible future harassment generally of the applicant by the state, the Tribunal, among other things, concluded that the applicant was not, in either 2001 or 2002, a person of concern to the Chinese authorities due to his political opinion. The Tribunal also did not accept that the applicant was continuing in any activities of a political nature which might cause him to be of future concern to the authorities of his country of nationality.

9 The Tribunal Member rejected his application for review and affirmed the decision of the respondent's delegate. The application to this Court asserts without particularisation that the Tribunal ignored parts of the applicant's claims, ignored relevant material and reached a decision without reasonable or rational foundation, thus giving rise to jurisdictional error.

10 The applicant appeared unrepresented before me with the aid of a competent interpreter.

11 So far as I can see, the Tribunal Member did not commit any of the errors said in the application to this Court to have been made and the applicant's brief oral submission did nothing to cause me to change that initial impression. He merely asked that the Court decide the matter fairly, after I had explained the legal hurdles in his way as best I could.

12 My conclusion is that the Tribunal did not fall into jurisdictional error as alleged or otherwise and accordingly the application must be dismissed with costs.

13 The application is dismissed.

14 The applicant is to pay the Minister's costs which I assess in the sum of $3000.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 12 December 2003

The Applicant appeared in person.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 December 2003
Date of Judgment:	4 December 2003