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

[2002] FCA 928

FEDERAL COURT OF AUSTRALIA

NAGS of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 928

NAGS OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N340 OF 2002

EMMETT J
19 JULY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N340 OF 2002

BETWEEN:	NAGS OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	19 JULY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the application be dismissed;

2.the applicant pay the respondent’s costs; and

3.the respondent inform the applicant as soon as practicable, in writing, of the provisions of Order 32 Rule 2(2) and Order 35 Rule 7(2)(a) 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	N340 OF 2002

BETWEEN:	NAGS OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	19 JULY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant claims to be a citizen of Bangladesh.  He arrived in Australia on 15 September 1999.  On 25 October 1999 he lodged an application for a protection visa under the Migration Act 1958 (Cth) (“the Act”).  On 26 November 1999 a delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”), refused to grant a protection visa.  On 20 December 1999 the applicant applied for a review of that decision.  On 5 March 2002 the Refugee Review Tribunal (“the Tribunal”) affirmed the decision not to grant a protection visa.

2. On 23 April 2002 the applicant filed an application to this Court seeking orders that the applicant’s claim to the Tribunal be considered further.  When the matter came before me for directions I listed the matter for hearing today.  When the matter was called on for hearing today there was no appearance for the applicant.  Counsel for the Minister indicated that those instructing him had received a telephone communication from somebody purporting to be a flatmate of the applicant saying that the applicant would not appear today because of illness.   There is, however, no evidence before me of any incapacity on the part of the applicant and there has been no application made to the Court to adjourn the matter.

3. In the circumstances the Minister seeks an order dismissing the action pursuant to Order 32 Rule 2(1)(c) which provides:

   “If, when a proceeding is called on for trial, any party is absent, the Court may… if the party absent is an applicant…dismiss the action…”

4. I have read the reasons of the Tribunal for affirming the delegate’s decision.  Those reasons indicate that on 8 February 2002 the Tribunal wrote to the applicant advising that it had considered all the papers relating to the 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 5 March 2002.  On that day, just prior to the hearing, the applicant's adviser contacted the Tribunal and informed it that the applicant did not wish to give oral evidence and would like the Tribunal to proceed to make a decision on the papers.

5. The applicant claimed, at the time of his application, that he faced a real chance of persecution at the hands of the then ruling party members in Bangladesh as a supporter of a prominent politician in the Bangladesh National Party (“the BNP”).  The Tribunal found that as a member of the BNP with strong connections to political figures in that party, the applicant would enjoy a favoured position in regard to protection at the hands of any potential persecutor and that the State would not be complicit in or condone any harm in regard to him.

6. The Tribunal was not satisfied that the applicant would face harm at the hands of a faction with the BNP.  Its reason for reaching that conclusion was that that was an unsupported assertion and that the independent material before the Tribunal indicated that the politician the applicant supported is in cabinet and holds a significant position.  That led the Tribunal to conclude that the division within the party, if in fact one exists, is not significant.  The Tribunal was therefore not satisfied on the evidence before it that the applicant had a well-founded fear of persecution in the meaning of the Convention.

7. There is nothing in the material that I have seen to indicate that there is any substance in the applicant’s application to this Court.  In the circumstances I consider that it is appropriate to make the order asked.  I also consider that it is appropriate to direct the Minister to draw the attention of the applicant to the provisions of Order 32 Rule 2(2) of the Federal Court Rules which provides:

   “Where the Court proceeds with a trial in the absence of a party, and at…the conclusion of the trial an order is made, the Court…may set aside…the order and may give directions for the further conduct of the proceeding.”

8. It may be that that is not necessarily an appropriate provision, having regard to the fact that I propose to dismiss the matter under Order 32 Rule 2(1)(c) and the applicant’s attention should therefore also be drawn to the provisions of Order 35 Rule 7(2)(a) which provides:

   “The Court…may vary or set aside an order…where the order has been made in the absence of a party…”

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

Associate:

Dated:             19 July 2002

Counsel for the Applicant:	There was no appearance for the applicant
Solicitor for the Applicant:
Counsel for the Respondent:	Mr J. Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	19 July 2002
Date of Judgment:	19 July 2002