NAEE v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 746

FEDERAL COURT OF AUSTRALIA

NAEE v Minister For Immigration & Multicultural & Indigenous Affairs [2002] FCA 746

Federal Court Rules Order 32 rule 2(1)(c)

Judiciary Act 1903 (Cth) s 39B

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

NAEE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 189 OF 2002

HELY J
5 JUNE 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 189 OF 2002

BETWEEN:	NAEE APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	5 JUNE 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed with costs.

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 189 OF 2002

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

JUDGE:	HELY J
DATE:	5 JUNE 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Russia who arrived in Australia in September 1999.  He claimed that he had been victimised at the hands of the Russian authorities because in September 1998, January 1999 and July 1999 he participated in demonstrations calling for the local leaders to be removed, for a reduction in the price of petrol and for a reduction in the taxes imposed by the regional administration.  Slogans such as “Down with Yeltsin” were shouted during the course of these demonstrations.

2. The Refugee Review Tribunal (“the RRT”) did not accept that the applicant would have been victimised in the way he claimed simply because of his participation in these demonstrations.  In the RRT’s opinion, the claims were inconsistent with country information about the relative freedom which exists in Russia for citizens to protest government decisions and actions.

3. When this matter was called for hearing this morning there was no appearance for the applicant.  No prior indication had been given either to the Court or to the respondent that there was any problem with the matter proceeding today.  Mr Pluttsev, a migration agent, appeared and handed to the Court a medical certificate written by a Dr Aristoff, who certified that he examined the applicant on 3 June 2002 and formed the opinion that he was suffering from depression and would be unfit for court.  Mr Pluttsev made it clear that he had no authority to speak on behalf of the applicant and did not purport to do so.  He said he simply came to Court for the purpose of handing up the medical certificate.

4. The Minister opposes the granting of an adjournment on the grounds that it lacks utility.  It is said to lack utility because the application on its face is doomed to failure.  I am not satisfied that there is any purpose in adjourning this matter nor am I satisfied that it is appropriate that I should do so.  Accordingly, if and insofar as what Mr Pluttsev has done is to seek an adjournment on behalf of the applicant, I am not prepared to grant it.  The certificate can be marked as an exhibit and it should be kept with the papers.

5. The Minister seeks an order pursuant to Order 32 rule 2(1)(c) of the Federal Court Rules that the action should be dismissed with costs.  It is appropriate in the circumstances that I should make such an order.

6. I should say two further things. First, the application purports to be made under s 39B of the Judiciary Act 1903 (Cth) but the form of application does not disclose the existence of any ground which would enable an order under s 39B to be made by this Court having regard to the principles laid down in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. The application does not allege, and there is no basis for contending, that the RRT member acted otherwise than in good faith; and it is apparent that the decision-maker made a bona fide attempt to exercise the power which was conferred upon the RRT.

7. Second, the decision relates to the subject matter of the legislation and is reasonably capable of reference to the power given to the decision-maker, hence it is immune from attack on Hickman principles. Even if that were not the case, the applicant's claim before the RRT failed because the RRT did not accept that the applicant would have been victimised in the way he claimed simply because of his participation in three demonstrations that took place between September 1998 and July 1999. It seems to me that this finding is a credit based finding which the RRT was entitled to make, and even apart from privative clause considerations the application under s 39B was doomed to failure.

8. It is for those reasons that I said that there was no utility in granting the adjournment.  I therefore order that the application be dismissed with costs and I direct that the Minister serve a copy of this order and of the reasons which I have briefly enunciated, upon the applicant by sending it by post to his address for service.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             12 June 2002

No appearance by the applicant
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	5 June 2002
Date of Judgment:	5 June 2002