NAJR v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 469

FEDERAL COURT OF AUSTRALIA

NAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 469

NAJR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 142 of 2003

SACKVILLE J
12 MAY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N142 OF 2003

BETWEEN:	NAJR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	12 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The proceedings be dismissed.

2.The applicant pay the Minister’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	N142 OF 2003

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

JUDGE:	SACKVILLE J
DATE:	12 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application under s 39B of the Judiciary Act 1903 (Cth) to review the decision of the Refugee Review Tribunal (“RRT”) handed down on 24 January 2003. The RRT affirmed a decision of the delegate not to grant a protection visa to the applicant.

2. The applicant did not appear before the RRT, notwithstanding that notice of the hearing was sent to her and to the agent acting on her behalf.  Not surprisingly, given the non-appearance of the applicant, the RRT was not satisfied that she had a well-founded fear of persecution in Thailand, her country of nationality.

3. The applicant has filed written submissions in this Court.  In those submissions, she argues that the RRT dismissed her application by reason of actual bias.  The submissions also appear to suggest that the RRT failed to discharge its obligation to provide her with an opportunity to give oral evidence at the hearing.

4. Shortly before the hearing in this Court, the applicant filed what purports to be a notice of discontinuance of the proceedings.  When the matter was called, she did not appear.  It seems clear enough, therefore, that the applicant does not intend to pursue the application for judicial review of the RRT’s decision.

5. Federal Court Rules (“FCR”), O 22 r 2, has the effect that the applicant is not entitled to discontinue her claim for relief without the leave of the Court.  Mr Johnson, counsel for the Minister, has indicated that the Minister does not consent to the proceedings being discontinued.  Rather, he submits that the proceedings should be dismissed pursuant to FCR O 32 r 2(1)(c) by reason of the non-appearance of the applicant.

6. In the circumstances I have described, I think it is appropriate to accede to Mr Johnson’s application.  Accordingly, the proceedings will be dismissed.  The applicant must pay the Minister’s costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE.

Associate:

Dated:             12 May 2003

The applicant did not appear.

Counsel for the Respondent:	Mr G Johnson
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	12 May 2003
Date of Judgment:	12 May 2003