NALO v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1113

FEDERAL COURT OF AUSTRALIA

NALO v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1113

NALO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N326 of 2003

WILCOX J
29 SEPTEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N326 of 2003

BETWEEN:	NALO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	29 SEPTEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The notice of motion dated 26 August 2003 be dismissed.

2.        The applicant pay the costs of the motion.

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	N326 of 2003

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

JUDGE:	WILCOX J
DATE:	29 SEPTEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. On 15 May 2003, this matter was listed before me for hearing.  The applicant did not appear.  On the previous day the Registrar had received a medical certificate stating that the applicant had been examined by a medical practitioner and was suffering from gastroenteritis and ‘unfit for work up to and including 15 May’.  I was not very impressed with the medical certificate.  My associate contacted the applicant and informed him that he should attend Court and seek an adjournment.  He did not appear.  More importantly, however, it did not appear to me that the filed application raised any issue which was within the jurisdiction of this Court.  Accordingly, I ordered that the application be dismissed with costs.  I determined the amount of costs at $2,500.

2. On 15 May 2003 I also made the following order:

   ‘2.  Any application to set aside the order for dismissal is to be supported by medical evidence that the applicant was not fit to attend court today, even for the purpose of seeking an adjournment.  There must also be evidence disclosing the existence of an arguable case that the Refugee Review Tribunal fell into jurisdictional error in making its decision.’

3. I understand that, in June, the applicant attempted to file two notices of motions seeking to set aside the above orders.  However, the Registrar took the view that the supporting material did not comply with order 2 and did not accept the notices of motion.  In particular, there was nothing disclosing the existence of an arguable case.

4. On 26 August 2003, the applicant sought to file a further notice of motion.  On this occasion, the notice of motion included a typed sheet setting out what were claimed to be four grounds.  The Registrar thought it appropriate to receive the notice of motion and list the application before me for hearing.  The four grounds, basically, come down to two points, being those set out in paragraphs 2 and 3 of the statement of grounds of application.  Both of those grounds deal with findings of fact made by the Tribunal.  The Court has no jurisdiction to review the Tribunal's findings of fact.

5. I pointed out this limitation to the applicant.  He was assisted by an interpreter and I believe that he understood what I said.  However, despite several invitations, he was unable to put before me any matter raising an arguable case of jurisdictional error by the Tribunal.  I have myself read the Tribunal member's reasons for decision.  I do not wish to indicate any opinion regarding the findings of fact, but it is clear that no issue of jurisdictional error arises from the reasons.  It follows that the application is doomed to failure.  That being so, it would be futile for me to grant the relief sought by the notice of motion. 

6. The order that I make is that the notice of motion dated 26 August 2003 be dismissed with costs. 

7. I emphasise that I am not taking this course because of any failure by the applicant to provide an explanation for his absence from Court on 15 May 2003.  I accept he was unwell on that day.  The order is made because the application itself is hopeless. 

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:            29 September 2003

The applicant appeared in person.
Solicitors for the Respondent:	Sparke Helmore Solicitors
Date of Hearing:	29 September 2003