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

[2003] FCA 492

FEDERAL COURT OF AUSTRALIA

NAQF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 492

NAQF of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 67 of 2003

TAMBERLIN J
SYDNEY
12 MAY 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 67 OF 2003

BETWEEN:	NAQF OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	12 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2         The applicant pay the respondent’s costs on a party-party basis.

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 67 OF 2003

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

JUDGE:	TAMBERLIN J
DATE:	12 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks to appeal from a judgment of Raphael FM delivered on 11 December 2002.  The primary ground set out in the papers filed by the applicant is that his Honour erred in holding that the Refugee Review Tribunal (“the Tribunal”) had not exceeded its jurisdiction or constructively failed to exercise it.  The order sought is that the decision by the Magistrate be set aside.

2. By way of background, on 1 August 2002 the applicant filed an application for review in respect of the Tribunal’s decision with the Federal Court.  Before the Tribunal, he had claimed that he feared persecution in India on the basis of his membership of the Vanier class.  The matter first came before Whitlam J on 23 August 2002 when proceedings were transferred to the Federal Magistrates’ Court.  On 11 December 2002, Raphael FM gave brief reasons and dismissed the application for review with costs pursuant to O 32 r 2 of the Federal Court Rules (“FCR”) after the applicant failed to appear at the hearing.

3. On the hearing before me this morning, the applicant said that he is an illiterate orphan from India and that he had been not properly assisted by his legal representative.  There is no material before me in relation to these assertions in sworn form but I note what the applicant says from the Bar Table.  He says that advantage was taken of him.  He advances to me the proposition that the Court ought grant him some form of appropriate relief if that is possible.  He is not able to articulate and has not advanced any possible ground on which the decisions might be set aside.  Nor is any reasonable ground for his appeal disclosed on examination of the material before me.

4. To complete the history of the matter, on 31 January 2003 the applicant filed in the Federal Court an application for an extension of time to file and serve a notice of appeal together with a supporting affidavit and draft notice of appeal.  This related to the judgment of the Magistrate of 11 December 2002 dismissing the application.  The applicant did not appear on 21 February 2003 for the hearing of his application for an extension of time, and I dismissed that application with costs for want of appearance.

5. It is not perfectly clear what the applicant is seeking today.  If the application before me today is considered to be made under O 35 r 7 of the FCR then it is incompetent because an appellate court does not have power to set aside a decision pursuant to that provision.  In any event, even if the Court had power, there are no grounds shown on the basis of which I should or would exercise that power.  The applicant tendered in evidence as Exhibit “A”, a letter from Messrs Sparke Helmore acting for the respondent that was, I am informed, sent to an address at which the appellant says that he is now residing.  That letter is dated 5 May 2003.  It sets out the history of the matter and indicates that if the appellant intends to proceed with the Federal Court matter costs will be sought on an indemnity basis.

6. This is an unfortunate case in view of the obvious difficulties the applicant has in pursuing his application due to personal disadvantage.  Nevertheless, no possible ground has been articulated or pointed to which in any event would indicate that there is any substance or merit in any appeal or application the applicant wishes to pursue.  In those circumstances, it is not necessary for me to consider in detail the powers of this Court and of the Federal Magistrates Court and, in the absence of any indication of any possible case which could be made out, I propose to dismiss the application. 

7. There is a dispute in relation to whether the applicant received the letter of 5 May 2003 from the solicitors. In the circumstances, I am not prepared to make an order for indemnity costs but I dismiss the application and order the applicant to pay the costs of the respondent on a party-party basis. 

8. I order that the application be dismissed and the applicant pay the respondent’s costs of this application.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             12 June 2003

The applicant appeared in person.
Solicitor-Advocate for the Respondent:	B Rayment
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	12 May 2003
Date of Judgment:	12 May 2003