NAJG v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1135

FEDERAL COURT OF AUSTRALIA

NAJG v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1135

NAJG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 943 of 2003

SACKVILLE J
SYDNEY
14 OCTOBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 943 OF 2003

BETWEEN:	NAJG APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	14 OCTOBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs.

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 943 OF 2003

BETWEEN:	NAJG APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	14 OCTOBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter is an appeal from a judgment of a Federal Magistrate delivered on 21 July 2003.  His Honour dismissed an application to review a decision of the Refugee Review Tribunal (“RRT”) made on 5 December 2002 and handed down on 14 January 2003.  The decision of the RRT was to affirm a decision of a delegate of the Minister not to grant the appellant a protection visa.  The appellant is from Bangladesh.  He arrived in Australia on 3 November 2000 and applied for a protection visa on 27 November 2000.  His claim for a protection visa was based on what was said to be a fear of political persecution in Bangladesh.

2. The appellant did not appear at the hearing that was held by the RRT.  The appellant did however appear in person in the proceedings determined by the Magistrates Court.  An appeal to this court was filed on 8 August 2003.  The grounds of appeal do not indicate with any clarity what error was alleged to have been made by the learned Magistrate in reaching his decision.  A directions hearing was held in the matter in this Court on 4 September 2003.  At that time the appellant did not appear.  The Minister was, however, represented by a solicitor.  I made orders for the conduct and hearing of the appeal.

3. These orders included a direction that the matter be listed for hearing at 10.15 a.m. today, 14 October 2003.  Subsequently, the Chief Justice made a determination that this appeal should be heard by a single Judge of the court.  That course was foreshadowed at the directions hearing.  Shortly after the directions hearing the solicitor acting for the Minister sent to the appellant by mail at his address for service a letter setting out the orders and directions made at the hearing.  The letter advised the appellant that if he did not attend the hearing scheduled for Tuesday, 14 October 2003, whether in person or by a legal representative, the Minister would ask the Court to dismiss the application with costs.

4. When the matter was called today there was no appearance by the appellant.  In these circumstances, Mr Smith who appears on behalf of the Minister has sought an order that the appeal be dismissed pursuant to Federal Court Rules O 52 r 38A(1)(c).  This provides that if a party is absent when an appeal is called on for hearing the Court may, if the absent party is an appellant, dismiss the appeal.  In the circumstances I have outlined, the appellant has been given notice of the hearing today.  He has not appeared.  No explanation has been proffered as to why he has not appeared.  In these circumstances it is appropriate that the appeal be dismissed pursuant to the order to which I have referred.

5. The appellant must pay the respondent's costs of the appeal and I so order.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             17 October 2003

The appellant did not appear

Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	14 October 2003
Date of Judgment:	14 October 2003