NALG v Minister for Immigration

[2002] FMCA 258

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NALG v MINISTER FOR IMMIGRATION [2002] FMCA 258

MIGRATION – Application for review of decision of RRT – no reviewable error found.

PRACTICE AND PROCEDURE – No appearance by applicant – application dismissed pursuant to Federal Court Rules – deficiency in FMC Rules noted.

Migration Act 1958 (Cth) s.426A
Federal Magistrates Court Rules Part 1, r 1.05(2)
Federal Court Rules O 32, rule 2(1)(c,) O 35, rule 7(2)(a)

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA FC 228
Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1108
Runio v Minister for Immigration and Multicultural Affairs [1999] FCA 64

Applicant: NALG

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 664 of 2002

Delivered on: 25 October 2002

Delivered at: Sydney

Hearing Date: 25 October 2002

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: No appearance

Solicitors for the Respondent: Mr G Kennett of Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. The applicant pay the respondent’s costs which I assess pursuant to Part 21, rule 21.02(2)(a) of the Federal Magistrates Court Rules in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 664 of 2002

NALG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter is a national of Lebanon who arrived in Australia on 12 March 2000.  He has been immigration cleared.  His application for a protection visa was lodged on 29 March 2000 and was rejected by a delegate of the Minister on 11 April 2000.  The applicant applied for a review of that decision by the Refugee Review Tribunal on 2 May 2000. 

2. The case before the Tribunal was decided without an oral hearing under section 426A of the Migration Act 1958 when the Tribunal had received no response to an invitation to appear.  The Tribunal determined to uphold the decision of the delegate on the grounds that it was not satisfied that the applicant had a well founded fear of persecution for convention reasons.  At [CB 58] the Tribunal stated:

   "Thus I cannot be satisfied that the applicant faces harm amounting to persecution from this group since the indications from his statement are that he did not face "real chance" of harm amounting to persecution at their hands whilst in Lebanon and the independent material advises that the state will provide effective protection from any threat of harm.

   In regard to his claim to have been of concern to the authorities because of his former association with the organisation, by his own account he was released by the authorities whilst others were gaoled.  This leads me to conclude that he was not of interest despite having been investigated ...

   The Tribunal is not satisfied, on the evidence before it, that the applicant has a well founded fear of persecution within the meaning of the convention".

3. The applicant filed this application for judicial review of the Tribunal's decision in the Federal Court of Australia on 12 June 2002.  In his application he stated:

   1."The Tribunal has erred in its decision by not applying the most relevant country information.

   2.The country information that the Tribunal has referred to is biased.

   3.Relevant submissions will be lodged in due course for consideration of my claims".

4. The application was supported by an affidavit which essentially says the same thing.

5. The case was transferred by Lindgren J to this court on 5 August 2002 and at the same time certain directions were made including those that the applicant file and serve any outline of submissions on or before five working days prior to the hearing date. 

6. In accordance with the standard practice the applicant was offered the opportunity to avail himself of the Minister's pilot scheme for the provision of legal advice.  He declined, saying that he had proposed to utilise his own solicitors.  The name of no solicitors found its way to the record and no one has appeared on the applicant's behalf today.

7. The applicant did change his address but he provided a notice of that new address to the court on 1 August 2002 and a letter advising him of the hearing date was sent by the court to that new address on 16 August 2002. 

8. After the matter was called today I requested the interpreter, Mr Methgal, to telephone the applicant at the telephone number that had been left with the court.  He did so.  He spoke to a female.  The female told him that the applicant was not going to attend court today because he was sick.  She told Mr Methgal that a letter had been sent.  No letter has been received by the court.  She was advised of this.  She said a letter was sent to the solicitor.  No letter has been received by the respondent's solicitors.  She was advised of this.  She gave a name of a firm of solicitors to whom she says the letter was sent but from whom neither the respondent nor the court have heard.

9. I have considered the decision of the Tribunal and the submissions made by the solicitors for the respondent.  It is my view that the contentions made by the applicant in the only documents which are before me would indicate that he is seeking to have the court substitute its view as to the material before the Tribunal for that of the Tribunal itself.  This, of course, the court cannot do. 

10. In my view consistent with the decision of the Full Bench of the Federal Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA FC 228 as explained by Sackville J in Zahid v MIMIA [2002] FCA 1108 this application in its present form is doomed to fail.

11. The rules of the Federal Magistrates Court in relation to the dismissal of cases where no applicant appears are deficient although this deficiency has been noted and it is intended to remedy it. Part I, rule 1.05(2) of the Federal Magistrates Court rules allows the court, where it considers that the rules are insufficient or inappropriate, to apply the Federal Court rules. In these circumstances I propose to apply Federal Court Rules order 32, rule 2(1)(c) and dismiss the application noting that if the applicant is so advised he may be able to make an application under order 35, rule 7(2)(a) if such application is made speedily and for cause. This was the procedure adopted by Sackville J in Runio v Minister for Immigration and Multicultural Affairs [1999] FCA 64.

12. I order that the application be dismissed. I order that the applicant pay the respondent's costs which I am prepared to assess pursuant to Part 21, rule 21.02(2)(a) of the Federal Magistrates Court Rules in the sum of $4,000.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: