NAMK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 106

FEDERAL COURT OF AUSTRALIA

NAMK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 106

NAMK of 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1163 of 2002

MOORE, MANSFIELD & STONE JJ
SYDNEY
15 MAY 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1163 OF 2002

BETWEEN:	NAMK OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	MOORE, MANSFIELD & STONE JJ
DATE OF ORDER:	15 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal is dismissed with 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 1163 OF 2002

BETWEEN:	NAMK OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	MOORE, MANSFIELD & STONE JJ
DATE:	15 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from a judgment of a Judge of this Court of 19 September 2002.  The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  On 7 May 2002, the Tribunal affirmed the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, which on 30 December 1999, refused to grant the appellant a protection (class XA) visa under the Migration Act 1958 (Cth). The appeal is listed for hearing this morning. There has been no appearance on the part of the appellant.

2. The Court has power under O 52, r 38A of the Federal Court Rules to proceed to hear the appeal on the merits, notwithstanding the non appearance of the appellant.  We have been invited by the counsel appearing for the Minister to follow that course and we do so.

3. The decision of the Tribunal and the primary judge sufficiently reveal the facts relevant to the appeal.  The issue raised before the primary judge was an allegation that the Tribunal was biased.  The primary judge concluded that the appellant had not demonstrated actual bias on the part of the Tribunal.  The notice of appeal does not make clear the grounds on which the appellant alleges the primary judge erred.  Proceeding on the assumption that the appellant alleges the primary judged erred in reaching that conclusion, our review of the material indicates that the primary judge was correct in reaching the conclusion he did, namely, that no case has been made out of actual bias on the part of the Tribunal.

4. Accordingly, the appellant has failed to demonstrate any error on the part of the primary judge and in our view, the appropriate order is to dismiss the appeal with costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Mansfield & Stone.

Associate:

Dated:             28 May 2003

There was no appearance by the appellant.
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 May 2003
Date of Judgment:	15 May 2003