NAET v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 681

FEDERAL COURT OF AUSTRALIA

NAET v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 681

IMMIGRATION  - application for review of decision of Refugee Review Tribunal – Applicant made no appearance at scheduled hearing – application dismissed.

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

NAET v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 229 OF 2002

CONTI J
SYDNEY
28 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 229 OF 2002

BETWEEN:	NAET APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	28 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 229 OF 2002

BETWEEN:	NAET APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	28 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review, filed in the Court on 25 March 2002 of a decision of the Refugee Review Tribunal (“the Tribunal”) made 12 March 2002. The Tribunal decision affirmed the decision of the Minister’s delegate made on 20 December 2000 to refuse the Applicant a protection (Class XA) visa.

2. The Applicant is an Indian national born in 1966 in the Gujarat state of India. He is of Muslim faith, and arrived in Australia on 8 April 1995. He appears to have been continually resident in Australia since that time, except for the period between 24 April 1997 and 22 July 1997, when he returned to India. His claim for a protection visa was considered in a lengthy decision of the Tribunal extending over some 17 pages.

3. In his application before the Tribunal below, the Applicant grounded his claim for political asylum in his Muslim beliefs, and made written submissions to the effect that he feared persecution in India as a result of the volatile state of affairs between Hindu extremists in Gujarat and those who followed the Muslim religion.

4. When the matter was called for hearing by my Associate at approximately 10.20 am today, 28 May 2002, the Applicant was not in attendance. Mr Lloyd, who appeared as Counsel for the Minister, indicated to the Court that he had not been forewarned about the Applicant’s absence. Nor has any message been received by the Court offering any explanation for the non-attendance of the Applicant. I also formally observe 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 at the Court today.

5. In the circumstances which I have described above, I find that the application for review is plainly lacking in merit, in that no basis in law for review has been proffered. 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. Indeed, the Court file indicates that the Applicant attended a directions hearing before Registrar Hedge on 18 April 2002, on which date the timetable for today’s hearing was set. I also draw attention 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.

7. I should finally add that, notwithstanding that the Applicant has not appeared in furtherance of his case today, I have reviewed the relevant documents for today’s appeal, and have formed the prima facie view that the Tribunal’s decision below was sound and that the Applicant would have considerable difficulty in persuading the Court that the Tribunal had erred in its decision of 12 March 2002.

I certify that the preceding seven (7) 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:	S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	28 May 2002
Date of Judgment:	28 May 2002