Naef v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 662

FEDERAL COURT OF AUSTRALIA

NAEF v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 662

IMMIGRATION – application for review of decision of Refugee Review Tribunal – Applicant filed written submission but made no appearance at hearing – application dismissed.

Migration Act 1958 (Cth) subs 417(1)

Federal Court Rules O 32 r 2, O 35 r 7

NAEF v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 190 OF 2002

CONTI J
SYDNEY
20 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 190 OF 2002

BETWEEN:	NAEF APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	20 MAY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.          The application for review be dismissed.

2.          The Applicant pay the Respondent’s costs of the proceedings.

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 190 OF 2002

BETWEEN:	NAEF APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	20 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (“ the Tribunal”) delivered on 21 January 2002. The Applicant is a citizen of Bangladesh who arrived in Australia on 4 December 1998.

2. When the matter was called for hearing by my Associate at the appointed time at 10.15 am today, 20 May 2002, the Applicant was not in attendance. Mr Bromwich, counsel for the Minister was however in attendance, and stated that he does not know of the whereabouts of the Applicant, nor has any message been received by the Court offering any explanation for the non-attendance of the Applicant. I formally record that the Court Officer has called outside the Court room for the appearance of the Applicant pursuant to my instruction, and the Applicant is clearly not in attendance in the Court or its precincts today.

3. It is appropriate for me to record that I have received a typed written submission from the Applicant, which I have closely read, and which in substance represents an attempt by the Applicant to have today’s proceedings adjourned. The submission states that the Applicant does not have available funds to retain a lawyer to conduct his application, that he has repeatedly been unsuccessful in gaining legal representation from pro bono legal organisations, and furthermore, that he has made approaches to a number of lawyers but has found that their charge is “ extremely high which is not maintainable by me at this stage”.

4. I record that the Applicant does not appear to have been represented before the Tribunal, though his application to the Tribunal was originally made by a migration agent. I would add that the Applicant’s submission to which I have referred above, and which was filed with the Court on 16 May 2002, was obviously prepared by a person with some knowledge of immigration law, being an observation I would extend to the application for review filed in these proceedings on 11 March 2002. I further observe that in the period between the Tribunal’s decision on 21 January 2002, and the filing of the application for review before me today, the Applicant has been unsuccessful in an application he has made to the Minister for the exercise in his favour of ministerial intervention, pursuant to subs 417(1) of the Migration Act 1958 (Cth).

5. In the circumstances which I have described above, I find that the application for review is plainly lacking in merit, and since the Minister seeks dismissal of the proceedings, I order that the application for review be dismissed and that the Applicant pay the Respondent’s costs of the application.

6. In making the above order and dismissing the proceeding in the absence of a party pursuant to O 32 r 2 of the Federal Court Rules (“the Rules”), I am satisfied that the Applicant has been given a proper opportunity to appear before the Court today, and has been on notice of today’s hearing for a considerable period of time. I draw attention however, to the provisions of O 35 r 7 of the Rules, which enable a party against whom a decision has been made in absentia to make an application to the Court to have the judgment set aside. This is a course however, which can only be pursued where there are proper grounds for making such an application.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             29 May 2002

Applicant did not appear
Counsel for the Respondent:	Mr R J Bromwich
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 May 2002
Date of Judgment:	20 May 2002