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

[2002] FCA 1031

FEDERAL COURT OF AUSTRALIA

NANT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1031

APPLICANT NANT OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 670 OF 2002

EMMETT J
9 AUGUST 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 670 OF 2002

BETWEEN:	APPLICANT NANT OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	9 AUGUST 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. the application be dismissed;
2. the applicant pay the respondent’s costs; and
3. the respondent inform the applicant in writing, as soon as possible, of of the provisions of Order 35 rule 7(2)(a) of the Federal Court Rules.

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 670 OF 2002

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

JUDGE:	EMMETT J
DATE:	9 AUGUST 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant claims to be a citizen of India.  He arrived in Australia with his wife on 18 November 2000.  On 28 December 2000 they lodged an application for protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs.  On 2 March 2001 a delegate of the respondent, the Minister for Immigration Multicultural and Indigenous Affairs (“the Minister”), refused to grant protection visas. 

2. On 12 March 2001 the applicant and his wife applied for a review of that decision by the Refugee Review Tribunal (“the Tribunal”).  On 28 May 2002 the Tribunal affirmed the decision not to grant protection visas.  On 9 July 2002 the applicant filed an application to this Court, supported by an affidavit sworn on 8 July 2002.  The affidavit discloses no grounds. When the matter was called on for directions today there was no appearance for the applicant.  The Minister, therefore, asks for an order under Order 10 rule 3 of the Federal Court Rules, that the proceeding be dismissed.

3. I have considered the reasons for the Tribunal’s decision of 28 May 2002.  Those reasons indicate that on 26 March 2002 the Tribunal wrote to the applicant advising that it had considered all the papers relating to the applicants but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant and his wife to give oral evidence and present arguments at a hearing on 1 May 2002.  On 27 April 2002 the Tribunal was advised in writing that the applicant wished to give oral evidence. 

4. On 1 May 2002 to applicant submitted a medical certificate indicating he was unable to attend the hearing on that day.  The Tribunal offered a hearing on the following day.  The applicant came to the premises of the Tribunal on that day but told the Tribunal hearing officer that he did not wish to give oral evidence and that his wife had already returned to India.  He said that he would like the Tribunal to make a decision on the papers.  The Tribunal therefore determined the matter on the material that was then available to the Tribunal.

5. The Tribunal accepted that the applicant is a national of India but considered that too little information had been provided to enable the Tribunal to be satisfied that the applicant had a well-founded fear of Convention related persecution in relation to India.  The applicant claimed that he was an active member of certain political groups but submitted no material to support that claim.  The Tribunal was not satisfied that the applicant was a member or had been involved with those groups.

6. The Tribunal accepted that the applicant is a Hindu but had regard to independent evidence that, if he was threatened by any Muslim group, he had access to State protection and could avail himself of such protection in future.  The Tribunal had regard to the fact that Hindus form the majority of India’s population and that a Hindu Nationalist Party currently leads the national government and vigorously protects the rights and interests of Hindus.

7. The Tribunal was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Convention.  In the circumstances there appears to be no substance at all in the claim in this Court for any relief and it is appropriate to accede to the Minister's request. 

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

Associate:

Dated:            16 August 2002

Counsel for the Applicant:	There was no appearance for the applicant
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	9 August 2002
Date of Judgment:	9 August 2002