Alam v Minister for Immigration and Multicultural Affairs

[2000] FCA 1027

FEDERAL COURT OF AUSTRALIA

Alam v Minister for Immigration & Multicultural Affairs [2000] FCA 1027

CITIZENSHIP AND MIGRATION – protection visa – application for order of review of decision of Refugee Review Tribunal affirming decision of delegate of Minister refusing grant

PRACTICE AND PROCEDURE – where no appearance by applicant – application for dismissal of proceedings pursuant to O 32 r 2(1)(c)

Migration Act 1958 (Cth) s 476(1)

Federal Court Rules O 22 r 2, O 32 r 2

JAHANGIR ALAM v MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS

N 433 OF 2000

EMMETT J
20 JULY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 433 OF 2000

BETWEEN:	JAHANGIR ALAM APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	20 JULY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs.

3.The respondent inform the applicant in writing as soon as practicable of the provisions of Order 35 Rule 7(2) of the Federal Court Rules.

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	N 433 OF 2000

BETWEEN:	JAHANGIR ALAM APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	20 JULY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an application for an order of review of a decision of the Refugee Review Tribunal.  The application was filed on 3 May 2000.  The matter was first before me for directions on 16 June 2000 when there was no appearance for the applicant.  On that day I gave directions for the matter to be made ready for hearing today and I directed the respondent to notify the applicant of the directions.  When the matter was called on for hearing today there was no appearance for the applicant.  However, I have before me evidence of a communication of 19 June 2000 from the Australian Government Solicitor to the applicant informing him of the directions that I gave on 16 June and emphasising that the case had been listed for final hearing at 10.15 a.m. on 20 July 2000.

2. When I came onto the Bench at 10.15 a.m. today I had the matter called; at that stage there was no appearance for the applicant.  The case was actually listed for hearing today at 11.15 a.m.  When I was able to reach the matter at 11.45 a.m. the applicant was again called and again there was no appearance.

3. Also before me is a copy of a notice of discontinuance sent by facsimile transmission by the applicant whereby the applicant purports to discontinue the proceedings.  However, under Order 22 Rule 2 the applicant is not entitled to discontinue except with the consent of the respondent or with the leave of the Court.  No leave of the court has been sought and no consent has been given on behalf of the respondent.  Accordingly, while it seems apparent that the applicant has no desire to press on with the matter, it is not possible at this stage for him to discontinue without leave.  Not having been asked for leave I am not disposed to grant leave.

4. In those circumstances the Minister asks that the proceedings be dismissed pursuant to Order 32 Rule 2.  That rule provides that:

   “2(1)    If, when a proceeding is called on for trial, any party is absent, the Court may:

   (a)order that the trial be not had unless the proceeding is again set down for trial, or unless such other steps are taken as the Court may direct;

   (b)       adjourn the trial;

   (c)if the party absent is an applicant or cross-claimant dismiss the action or the cross-claim; or

   (d)proceed with the trial generally or so far as concerns any claim for relief in the proceeding.”

5. The Minister asks me to dismiss the action pursuant to Order 32 Rule 2(1)(c).  The applicant is a citizen of Bangladesh who arrived in Australia on 29 April 1997.  On 22 July 1997 he lodged an application for a protection visa.  On 6 March 1998 a delegate of the Minister refused to grant a protection visa.  On 30 March 1998 the applicant applied for review of that decision.  On 14 March 2000 the Tribunal affirmed the decision not to grant a protection visa.

6. The reasons of the Tribunal indicate a history similar to that of this Court in the applicant’s dealings.  On 30 December 1999 the Tribunal wrote to the applicant advising that it had considered all the papers relating to his application but was unable to make a favourable decision on that information alone.  The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 25 January 2000.  On 24 January 2000 the applicant advised the Tribunal that he accepted the Tribunal's offer but that he had been suffering the effects of influenza and was unable to attend.  He tendered a medical certificate to that effect and requested that the hearing be delayed until after February so that he could recover and collect supporting documents from Bangladesh about his claim.  His request was granted and the hearing was rescheduled. 

7. On 28 January 2000 the Tribunal wrote to the applicant advising that it had considered his request for delay and that the hearing had been rescheduled for 3 March 2000.  On 2 March 2000 the applicant sent a letter to the Tribunal that he was ready to appear but requested the Tribunal to give him more time because he was unable to collect all the supporting documentation.  The Tribunal refused the request for any further delay of the hearing.

8. The Tribunal considered that since the applicant had had since March 1998, some two years, to prepare and present his case to the Tribunal it was reasonable for the Tribunal to expect that a grant of additional time to allow him to prepare his case would be counter productive.  On 2 March 2000 the Tribunal telephoned the applicant at his residential address but he was purportedly not available.  A message was left with the person who answered the telephone requesting the applicant to speak urgently to the Tribunal.  The applicant did not reply.  The applicant did not attend the Tribunal hearing nor did he communicate with the Tribunal to explain his failure to attend.  In all of the circumstances it is quite clear that the applicant does not wish to proceed with the hearing. 

9. The Tribunal in its reasons indicated that it could not be satisfied from the material before it as to the applicant's identity and nationality.  He had provided a copy of a Republic of South Africa passport in the name of Kabir Miah and copies of two Bangladesh passports in the name of Jahangir Alam.  The Tribunal had doubts as to the applicant’s true date of birth given at various times in the various passports.  The Tribunal concluded that even if it were to accept the applicant is who he claims to be it was unable to accept as credible any of his claims for refugee status.  The Tribunal concluded that the applicant’s statements were so significantly in conflict as to raise serious doubts as to the veracity of his claims.  Without the benefit of a hearing to put those inconsistencies to him and to hear his explanations the Tribunal was unable to accept any of his claims as being credible.  The Tribunal therefore was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Convention.

10. The grounds of the application do not fall within section 476(1) of the Migration Act 1958 (Cth). Further, there is nothing that I have seen in the reasons of the Tribunal to suggest any error on the part of the Tribunal. In the circumstances I consider that it is appropriate that the application be dismissed. Accordingly I propose to order the application be dismissed with costs. I will direct the respondent to inform the applicant in writing as soon as possible of the terms of Order 35 Rule 7(2)(a).

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

Associate:

Dated:             31 July 2000

Solicitor for the Respondent:	Mr G Peek for the Australian Government Solicitor
Date of Hearing:	20 July 2000
Date of Judgment:	20 July 2000