NALS of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1478

FEDERAL COURT OF AUSTRALIA

NALS of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1478

NALS of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1096 of 2002

SACKVILLE J
SYDNEY
25 NOVEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1096 OF 2002

BETWEEN:	APPLICANT NALS OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	25 NOVEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed pursuant to Federal Court Rules, O 52 r 38A(1)(c).
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 1096 OF 2002

BETWEEN:	APPLICANT NALS OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	25 NOVEMBER 2002
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This is the hearing of an appeal against a decision of a Federal Magistrate.  The Magistrate's decision was given on 10 October 2002 following a hearing on 19 September 2002.  The Magistrate dismissed an application to review a decision of the Refugee Review Tribunal (“RRT”) handed down on 13 June 2002.  The RRT affirmed a decision of a delegate of the respondent (“the Minister”) not to grant a protection visa.

2. The notice of appeal, which does not specify any grounds of appeal, was filed on 16 October 2002.  A directions hearing was held on 30 October 2002 at which the appellant, who is in detention, was present.  I directed that the appeal be listed for hearing on 25 November 2002, that is today, at 11.30am.  The applicant was directed to file and serve written submissions by 18 November 2002.  I should note that it appears that the applicant understands English.

3. Mr Lloyd who appears on behalf of the Minister, has applied for the appeal to be dismissed pursuant to Federal Court Rules (“FCR”), O 52 r 38(A)(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.

4. When the matter was called on for hearing today the appellant did not appear.  Accordingly, the basis for an application under FCR, O 52 r 38A(1)(c) would seem to be made out.  Mr Lloyd tendered a letter addressed to the Villawood Immigration Detention Centre from which I infer that arrangements were made for the appellant to attend if he wished to be brought to the Court today for the hearing.

5. Shortly before the hearing, in fact just after 9 am this morning, it appears that the Court received a facsimile transmission in handwriting.  According to that facsimile transmission, the appellant indicated that he did not wish to attend the Federal Court as his solicitor would be representing him.  In the light of that document, a copy of which apparently was available to the Minister's representatives, Mr Lloyd very sensibly suggested that the matter be adjourned for a short time to enable contact to be made by telephone with the appellant.  That contact was made through Mr Lloyd's instructing solicitor.  I have been informed that the appellant stated that he had been in contact with a solicitor.  He gave the first name of that solicitor but did not know or did not convey the surname of the solicitor.  He also stated in that conversation, as reported to me by Mr Lloyd, that he knew the telephone number of the solicitor but did not have it handy.

6. At Mr Lloyd's further suggestion I granted another short adjournment, in order to enable further telephone contact to be made with the appellant.  The purpose of this further telephone contact was to ascertain the telephone number of the solicitor who had been identified by the appellant.  This would then enable contact to be made with the solicitor to confirm that she had instructions or alternatively that there was a real chance that she would wish to appear on behalf of the appellant.

7. I have been informed that the result of the second telephone conversation is that the appellant declined to provide the telephone number of the solicitor.  I infer from the course of events that I have described that the appellant has chosen not to appear today notwithstanding that arrangements were made for him to be conveyed to the Court in order to appear on his own behalf.  Having regard to the responses of the appellant in the telephone conversations to which I have referred, I cannot be satisfied that there is a real prospect that a solicitor or other legal representative will appear for the appellant even if a further adjournment of the proceedings is granted.

8. In these circumstances it seems to me that the appropriate course is to accede to the Minister's application.  I should say that I have taken into account the analysis of the learned Magistrate in dismissing the application for judicial review.  Although I have not had the benefit of any legal argument on behalf of the appellant it does not seem to me that there is any basis for suggesting that the Magistrate fell into error in reaching the conclusions that she did.

9. The only point of substance that appears to have been raised before the Magistrate was the suggestion that the RRT had failed to address a claim made by the appellant that his uncle had been killed in 1985 by members of the Liberation Tigers of Tamil Eelam (“LTTE”) or their sympathisers.  As the Magistrate pointed out, the claim that was put by the appellant to the RRT was not that he feared persecution at the hands of the LTTE but that he feared persecution by reason of imputed political opinions, that is opinions that would characterise him as a sympathiser of the LTTE.

10. For the reasons given by the Magistrate it is difficult to see how the alleged killing of the uncle in 1985 could have been relevant to the case the appellant sought to make out before the RRT.

11. Accordingly the appropriate order is that the appeal be dismissed. The appellant must pay the costs of the Minister.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             25 November 2002

The appellant appeared in person.

Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	25 November 2002
Date of Judgment:	25 November 2002