NALE v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NALE v MINISTER FOR IMMIGRATION [2003] FMCA 366

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – application claiming persecution because of ethnicity in Thailand – no reviewable error.

PRACTICE AND PROCEDURE – Summary dismissal of review application – non compliance with court orders – no reasonable cause of action and abuse of process – reasonable inference that the Court’s process is being used purely for the purpose of delaying the applicant’s departure from Australia.

Applicant: NALE

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ672 of 2003

Delivered on: 22 August 2003

Delivered at: Sydney

Hearing date: 22 August 2003

Judgment of: Driver FM

REPRESENTATION

No appearance by the applicant

Solicitors for the Respondent: Mr R White
Sparke Helmore

ORDERS

1. The application is dismissed pursuant to rules 13.03(2)(b), 13.10(a) and 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ672 of 2003

NALE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. I have before me for ex tempore judgment, a notice of motion filed on 1 August 2003, on behalf of the respondent Minister in this matter. The motion seeks the dismissal of the principal application for relief pursuant to part 13, rule 13.03 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”), on the basis that the applicant has failed to comply with orders of the Federal Court made by consent on 3 April 2003, and further seeks the dismissal of the principal application for relief pursuant part 13, rule 13.10(a) of the Federal Magistrates Court Rules on the basis that the application fails to disclose a reasonable cause of action.

2. The Minister proceeds upon the notice of motion and two affidavits made by Althea Jane Houlton on 4 August 2003 and 19 August 2003 in which Ms Houlton deposes as to the relevant facts and circumstances.  Mr White, for the Minister, has also prepared written submissions which he relied upon this morning.  The matter was called twice and the applicant failed to appear.  I adjourned briefly so that an attempt could be made to contact the applicant by telephone, but that attempt was not successful. 

3. The principal application for relief is an application under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) (“the Migration Act”), to review a decision of the Refugee Review Tribunal (“the RRT”) made on 21 January 2003, and handed down on 18 February 2003. The RRT affirmed a decision of a delegate of the Minister not to grant to the applicant a protection visa. The applicant is a citizen of Thailand and applied for a protection visa on the basis of asserted discrimination in Thailand as a member of the ethnic Chinese…