NAIC v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 424

FEDERAL COURT OF AUSTRALIA

NAIC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 424

NAIC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 30 of 2003

ALLSOP J
2 MAY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N30 of 2003

BETWEEN:	NAIC APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	2 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1)The application be dismissed.

2)The applicant pay the costs of the respondent.

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	N30 of 2003

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

JUDGE:	ALLSOP J
DATE:	2 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an application seeking relief under section 39B of the Judiciary Act1903 (Cth). The application is in connection with the decision of the Refugee Review Tribunal (the Tribunal) made on 25 November 2002 in which a decision of a delegate of the Minister refusing a protection visa for the applicant was affirmed.

2. The applicant is a man of Indo-Fijian ethnicity.  His claims of persecution, which I do not repeat, were as set out in the reasons of the Tribunal, and in paragraphs 18 and following of the Tribunal's decision.  The applicant claims that he suffered harm in the year 2000 in Fiji while working as a taxi driver.  The harm was allegedly directed to him for racial reasons by ethnic Fijians. 

3. I do not set out in detail the Tribunal's reasoning in rejecting the claim for asylum.  Broadly speaking, the applicant was accepted as a witness of truth and the Tribunal accepted that the incidents which he described took place.  The Tribunal was prepared to accept that the level of harassment and mistreatment from indigenous Fijians expressed by the applicant would amount, properly understood, to persecution.

4. However, the Tribunal found, as a matter of fact, that there was effective State protection in Fiji in relation to Indo-Fijians suffering the kind of mistreatment complained of by the applicant.  By reason of the effective State protection, found as a fact, the Tribunal came to the conclusion that Australia did not owe protection obligations to the applicant and thus affirmed the decision of the delegate.

5. The application in this Court was filed on 13 January 2003.  No particularity of grounds was set out in the application.  The application was accompanied by an affidavit also filed on 13 January 2003.  It also identified no particular grounds for review.

6. The matter came before the Court twice, on which occasions there was no attendance by the applicant.  The matter was then put in my list at the request of the respondent Minister pursuant to a notice of motion filed on 3 March 2003 seeking orders that the application be dismissed pursuant to O 20 r 2 of the Federal Court Rules.  The respondent was put to the cost of the notice of motion and an affidavit in support of Ms Rayment, the solicitor at Spark Helmore on the record.  On the day fixed for hearing of that motion, 10 March 2003, the applicant appeared.  I made no orders for costs on that occasion in relation to the notice of motion.  However, on that day, in the presence of the applicant and solicitor for the respondent, I set the matter down for hearing on 30 April 2003 at 10.15.  I set the matter down for hearing not only in the presence of the applicant but in the presence of an interpreter who interpreted the course of events on that day for the applicant.

7. On 30 April the matter was called on for hearing. There was no appearance by the applicant. I had the matter called three times outside, though only under the acronym given to the applicant by the Court by reason of s 91X of the Migration Act 1958 (Cth). However, I had the court officer look over the entire floor of the Court for anyone who may answer the description of a male Indo-Fijian. No such person was present.

8. On 30 April Mr Reilly of counsel appeared for the respondent Minister.  He requested that I hear the matter in the absence of the applicant and deal with the matter pursuant to O 32 r 2.  He asked me to hear him on the application and deal with the matter substantively.  I did so. 

9. I have read Mr Reilly's helpful submissions, which will remain with the papers.  I have carefully analysed the court book and the decision of the Tribunal.  I asked Mr Reilly to address me if he was prepared to on the basis that he was undertaking an ex parte application. He agreed to do so, that is, he agreed to deal with the matter on the basis that he would bring forward to the Court any weakness in the respondent's case or any possible argument that might be put forward by the applicant.  He indicated that he was aware of no such matter having carefully perused the court book.  Having read his written submissions and examined the papers I can only but agree.

10. At that point I took the unusual step of indicating to Mr Reilly and his instructing solicitor that I proposed to stand the matter over for further hearing or judgment to today at 2.15, but that he need not attend and his solicitors need not attend.  I stood the matter over for the purposes of dealing with any argument that might be put.  I apprehended that it may be the case that the applicant was late coming to court or that for some other reason he was indisposed.  However, I have had no communication from the applicant explaining his whereabouts. 

11. During the course of handling the file on this docket the Court obtained telephone numbers for the applicant.  The respondent's solicitors also had telephone numbers for the applicant.  Yesterday I had my associate ask Ms Rayment to attempt to contact the applicant to tell him that the matter was in the list today and that he should appear.  Ms Houlton informs me from the bar table, which I accept, that Ms Rayment attempted to ring the applicant yesterday and was informed by a recorded message that the number called was unavailable.  Ms Houlton herself attempted to ring the applicant before coming to Court and was not able to speak to him, both numbers she called ringing out without any opportunity to leave a message. 

12. This afternoon I had the matter called three times outside and the floor of the Court examined as to whether there was anyone present who may answer the description of a male Indo-Fijian. There was no appearance and the court officer indicated to me that there was no one on the floor of the Court bearing that appearance.  In these circumstances, and having carefully considered the reasons of the Tribunal I see no basis whatsoever for any ground of judicial review.

13. The applicant has demonstrated, except on one occasion, an apparent lack of interest in his own application. It may be that the applicant has an entitlement under the rules to seek to have these orders set aside by reason of his absence. However, it should be clear from the record of these reasons that the applicant has been given notice of today's hearing and that I have otherwise carefully examined his claim for any apparent legal error sufficient to amount to a ground for intervention under s 39B. No such ground is claimed in the application. In those circumstances I have no hesitation to make orders dismissing the application and I so order.

14. The applicant is to pay the costs of the respondent.  In practical terms it may not matter, but I would otherwise be minded to consider making an order for indemnity costs in relation to the wasted costs of the notice of motion, which was brought on before me in March.  Given the absence of the applicant and the likely practical inconsequence of any such order, I will not make it.  I will simply content myself with orders that:

    1)The application be dismissed.

    2)The applicant pay the costs of the respondent.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             9 May 2003

There was no appearance by or for the Applicant.

Counsel for the Respondent:	T. Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	2 May 2003
Date of Judgment:	2 May 2003