NAJC v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 547

FEDERAL COURT OF AUSTRALIA

NAJC v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 547

NAJC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 101 of 2003

WILCOX J
15 MAY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 101 of 2003

BETWEEN:	NAJC APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	15 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The Notice of Motion filed on 29 April 2003 be dismissed.

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 101 of 2003

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

JUDGE:	WILCOX J
DATE:	15 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This matter was listed for hearing on 11 April 2003.  The applicant did not appear that day.  Accordingly, I made an order that the proceeding be dismissed pursuant to Order 32 Rule 2 of the Federal Court Rules.  I also ordered that, in the event that the applicant sought an order vacating the dismissal order, he was to apply by notice of motion, supported by an affidavit that demonstrated his reasons for non-attendance and material that suggests the existence of an arguable case of jurisdictional error by the Refugee Review Tribunal. 

2. On 29 April, the applicant filed a notice of motion returnable today.  He sought an order setting aside the order made on 11 April and that the matter be re-listed for hearing.  The applicant also filed a supporting affidavit.  In that affidavit, he said that, on 11 April "I was sick, had flu, I was in bed, rest".  He said this was the reason he did not appear that day.  The applicant has not provided any corroboration of his claim to have been ill on 11 April. 

3. I have some difficulty in accepting that the applicant’s health prevented him coming to court on that day.  However, I would be disposed to set aside the dismissal order if I was satisfied there was an arguable case of jurisdictional error by the Tribunal.  I am not so satisfied. 

4. In his affidavit, the applicant asserted that he had an arguable case.  However, when I asked him about this, he said the Tribunal was wrong in not accepting his evidence.  He also said he would like to obtain further papers from Bangladesh to support his case. 

5. I pointed out to the applicant that the Court could only intervene if there was a serious error of law or failure to follow the statutory procedures.  I asked him to indicate whether he had any argument about such matters.  He said he did not and re-asserted his complaint about the Tribunal's factual findings. 

6. I have read the Tribunal’s reasons for decision.  I am unable to discern any issue of law or arguable failure to comply with statutory procedures.  The Tribunal rejected the applicant’s claim to a protection visa because it was not satisfied of the truth of the claims he made. 

7. Having regard to the above, it would be a waste of time to set aside the dismissal order and fix a further hearing date.  The application would necessarily be dismissed.  Accordingly, I propose to dismiss the motion to set aside the order made on 11 April.  The order that the Court makes is that the notice of motion filed on 29 April 2003 be dismissed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             3 June 2003

The applicant appeared in person
There was no appearance for the respondent
Date of Hearing:	15 May 2003