NAEP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1427

FEDERAL COURT OF AUSTRALIA

NAEP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1427

APPLICANT NAEP OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 594 of 2002

WHITLAM J
13 NOVEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 594 of 2002

BETWEEN:	APPLICANT NAEP of 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	13 NOVEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application to vacate the hearing date is refused.

2.   The appellant pay the respondent’s costs of the motion today.

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 594 of 2002

BETWEEN:	APPLICANT NAEP of 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	13 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application to vacate a hearing date of the appeal fixed for hearing on 25 November 2002.  The affidavit in support relies on one matter only.  That is that, in the decision which is the subject of the appeal, Lindgren J referred to the fact that there was no evidence to suggest a potential link between the appellant’s brain injury and brain damage on the one hand and his manner of giving evidence before the Refugee Review Tribunal (“the Tribunal”) on 10 January 2002 on the other.  It is important to note that his Honour proceeded on the basis that the appellant suffered a permanent impairment to his brain. 

2. The appellant wants to vacate the hearing to get further evidence (which he will apply to have received) to show that there was a link between the manner in which he gave his evidence before the Tribunal and his brain injury and brain damage.  To this end he has annexed to his affidavit a copy of an invoice from a clinical neuropsychologist, Jennifer Batchelor.  It quotes fees of $1,980 for an assessment and a report to be prepared following an appointment with the appellant on 20 December 2002.  There is no indication of what that report is likely to say or, indeed, that there is any prospect of there being evidence which will establish what the appellant says he expects that evidence to show.  It is far too speculative a basis on which to vacate a hearing date for an appeal which has been fixed for some time. 

3. Accordingly, I am not persuaded there is any reason to vacate the hearing date and the application will be refused with costs.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:            20 November 2002

Appellant appeared in person.

Solicitors for the respondent:	Mr Rohan White of Sparke Helmore
Date of hearing:	13 November 2002
Date of judgment:	13 November 2002