NALW v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 638

FEDERAL COURT OF AUSTRALIA

NALW v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 638

NALW v MINISTER FOR IMMIGRATION  & MULTICULTURAL & INDIGENOUS AFFAIRS
N382 OF 2003

SACKVILLE J
SYDNEY
16 JUNE 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 382 OF 2003

BETWEEN:	NALW APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	16 JUNE 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the costs of the respondent.

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 382 OF 2003

BETWEEN:	NALW APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	16 JUNE 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application filed pursuant to s 39B of the Judiciary Act 1903 (Cth), in which the applicant seeks relief in respect of a decision of the Refugee Review Tribunal (“the RRT”) handed down on 25 February 2003. The applicant, who does not appear to have been represented in the proceedings, identifies two grounds of review in the application. The first is that the decision of the RRT was induced by the actual bias of the Tribunal member. The second is that there was no evidence or other material to justify the making of the decision.

2. The matter was set down for hearing at a directions hearing held on 24 April 2003.  The applicant was present in person on that day and was assisted by an interpreter in the Mandarin language.  The directions that were made specified that the matter was to be heard at 10.15 am today.  A direction was also given that the respondent's solicitors send a letter to the applicant at his address for service setting out the terms of the orders that were made at the directions hearing.  There is evidence that such a letter was in fact sent.

3. On 6 June 2003, the applicant filed very brief submissions in support of his claim for relief.  The respondent's counsel filed, and caused to be served written submissions in opposition to the relief sought by the applicant.  When the matter was called today, the applicant did not appear.  At the suggestion of counsel for the Minister, the matter was stood down for half an hour in order to give the applicant further opportunity to appear.  When the matter was again called the applicant still failed to appear.  

4. In these circumstances, the counsel for the Minister has sought an order pursuant to Order 32 r 2(1)(c) of the Federal Court Rules that the proceedings be dismissed by reason of the absence of the applicant.

5. It is clear from the history of the matter that I have recounted that the applicant was aware of the proceedings and of the hearing set down for today.  For unexplained reasons, he has apparently chosen not to appear.  

6. I should add that there appears to be no basis for the applicant's claim for relief.  There is nothing on the material before me to indicate that the RRT was actuated by actual bias. Nor is there any apparent foundation for the claim that there was no evidence or other material to justify the making of the decision.  The RRT's decision was based upon its assessment of the applicant's credibility.  That assessment in turn was informed, in part at least, by the fact that the applicant's claims were formulated in identical terms to a claim made by the same immigration agent some considerable time earlier on behalf of another applicant.  The RRT found the applicant's explanation for this anomaly unconvincing.

7. In these circumstances, the appropriate course is to order that the application be dismissed and that the applicant pay the Minister's costs.  Accordingly I make those orders.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE.

Associate:

Dated:             24 June 2003

The applicant did not appear.

Counsel for the Respondent:	Ms S McNaughton
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	16 June 2003
Date of Judgment:	16 June 2003