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

[2002] FCAFC 407

FEDERAL COURT OF AUSTRALIA

NANI of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 407

APPLICANT NANI OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

No N 970 of 2002

SPENDER, RYAN, WHITLAM JJ
SYDNEY
4 DECEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 970 OF 2002

BETWEEN:	APPLICANT NANI OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	SPENDER, RYAN, WHITLAM JJ
DATE OF ORDER:	4 DECEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs of the appeal, to be taxed if not agreed.

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 970 OF 2002

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

JUDGES:	SPENDER, RYAN, WHITLAM JJ
DATE:	4 DECEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. The appellant has been the recipient of a great deal of advice from officers of the Registry in relation to his application for an adjournment of this hearing.   He has filed a notice of motion with supporting material seeking an adjournment, but has been told, in the clearest of terms, that it would be necessary for him to appear today to seek an adjournment on his motion.  The Court is quite satisfied that the appellant was aware of the need to appear today to seek an adjournment, and that he was also informed that in the absence of success on his motion the appeal would be heard.  Notwithstanding this advice, the appellant has not appeared before the Court today to argue his motion or prosecute his appeal.

2. In those circumstances, the appeal will be dismissed for want of prosecution. We should, however, note that this was an appeal from the judgment of Gyles J ([2002] FCA 1122) of 11 September 2002 where the applicant before his Honour sought, pursuant to section 39B of the Judiciary Act 1903 (Cth) relief in relation to a decision of the Refugee Review Tribunal of 21 May 2002, whereby the Tribunal affirmed a decision of the delegate of the Minister not to grant a protection visa to the applicant.

3. In the course of his Honour's reasons he noted that the case was governed by the new regime following last year’s amendments to the Migration Act 1958 (Cth) and thus, s 474 operates so far as the application before him was concerned. His Honour noted, in par 6 of his reasons:

   “Counsel for the Minister has submitted that the decision of the Tribunal is a simple case of its assessment of credibility, that there is no flaw revealed in it in any sense and that it was perfectly appropriate that the Tribunal should explore any discrepancies which came to its attention.  It seems to me that is correct.”

   And later he said:

   “Nothing has been put forward by way of evidence, or indeed submission, which would indicate any objective basis upon which it could be said that the Tribunal lacked good faith in the way it approached its task.  In those circumstances the mere assertion by an applicant of that claim with no objective material which can be pointed to is bound to fail.  The only real head open to this applicant to argue that s 474 would not be a bar to all the possible claims simply obtains no support on the facts of the case. 

   … the application is hopeless and I have no alternative but to reject it.  I therefore dismiss the application.  I do not think there is anything that can be said in opposition to an order for costs.”

4. His Honour thereupon dismissed the application with costs. 

5. The notice of appeal lists four grounds, but it seems from the internal evidence of the notice of appeal that those grounds are in respect of a different matter, as the notice of appeal commences:

   “The Appellant appeals from the whole judgment of the Honourable Justice Allsop  given on 3 September 2002”

   whereas the present appeal is, as has been indicated, an appeal from the judgment of Gyles J of  3 September 2002.  The four grounds of appeal bear little or no resemblance to the matters that were raised before Gyles J or in the Tribunal.  There is no appealable error demonstrated in the judgment of the primary judge, and so, even if an appeal were to be prosecuted, it would have no prospects of success. 

6. The appeal is dismissed for want of prosecution.  The appellant is to pay the respondent’s costs, to be taxed if not agreed.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Ryan and Whitlam.

Associate:

Dated:             11 December 2002

There was no appearance on behalf of the appellant
Counsel for the Respondent:	Ms V. Hartstein
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	4 December 2002
Date of Judgment:	4 December 2002