NAQX of 2002 v Minister for Immigration
[2005] FMCA 340
•9 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAQX OF 2002 v MINISTER FOR IMMIGRATION | [2005] FMCA 340 |
| MIGRATION – Review of RRT decision – where applicant failed to attend court hearing – where applicant claimed when telephoned on the day of the hearing that he did not receive letters notifying him of the hearing date – whether matter should be summarily dismissed. |
Daniel v The Minister [2004] FCA 21
Daniel v The Minister [2004] FCA 395
M211 of 2003 v RRT & Anor (2004) 212 ALR 520
| Applicant: | APPLICANT NAQX OF 2002 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 866 of 2002 |
| Judgment of: | Raphael FM |
| Hearing date: | 9 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 9 March 2005 |
REPRESENTATION
| For the Applicant: | Applicant in Person |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $1,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG886 of 2002
| APPLICANT NAQX OF 2002 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant, who is an Indian citizen, arrived in Australia on
27 March 2000. On 10 May 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration, Multicultural and Indigenous Affairs. By 17 July 2002 the applicant had wound his way through the processes and the Refugee Review Tribunal handed down a decision made on 25 June 2002 to affirm the decision not to grant the applicant a protection visa. I have read the Tribunal's decision which is one of the most thorough and all encompassing decisions that I have had the privilege of reading.
In August 2002 the applicant sought review of the decision of the Tribunal from the Federal Court. The three substantive grounds of that application were that the Tribunal erred in law in finding that the applicant did not have any profile that placed him at risk outside his home town, or outside Tamil Nadu; the Tribunal exceeded its jurisdiction in making its decision to affirm the decision and the Tribunal constructively failed to exercise its jurisdiction in arriving at its decision. No particulars were provided.
On 9 September 2002, her Honour, Stone J, transferred this matter to the Federal Magistrates Court. The applicant was advised of this transfer and of a directions hearing to be held at 2.15 pm on 5 September 2002. At that directions hearing the applicant was represented by counsel and the case was listed for hearing on 6 December at 10.00 am. On
5 December 2002, the applicant, on the advice of counsel, signed consent orders dismissing the application and agreeing to pay the respondent's costs in the amount of $2,000. A facsimile of the signed consent orders was tendered and marked exhibit 1.
No more was heard about the matter until on 27 October 2004, almost 2 years after the applicant had agreed to bring an end to proceedings, he filed a further application in this Court seeking to restore the proceedings which he had consented to be dismissed.
At the hearing before me today I inquired of the applicant why it was that he had taken such a long time to make this application. He gave me two explanations. The first was that he had been advised to join a High Court action, which I will guess was the High Court proceedings known as Muin and Lie, but he indicated that he had not joined those proceedings. The second was that he had made an application to the Minister to exercise his discretion under s.417 of the Act and that this had taken a very long time to be decided. I have no evidence either way on this proposition. The applicant also told me that he needed legal advice in order to bring his claim.
Assuming every other hurdle that might face the applicant was capable of being surmounted, he would still have to convince me that there would be some utility in restoring his case. In other words, he would have to point to some indication of a jurisdictional error made by the Tribunal in its consideration of his claim. When I asked the applicant what his concern was about the Tribunal's decision, he informed me that he did not believe that the Tribunal went into the details of his case.
He complained that the Tribunal had spent most of the time discussing with him whether or not he was a person who could speak English. The applicant had worked in a Gulf State for some 10 years and the Tribunal clearly took the view that in an international business house of the type in which the applicant worked, English would be the lingua franca. It is true that there was significant debate about this matter, but I cannot accept that it excluded debate upon the applicant's alleged grounds for holding a well founded fear of persecution for a Convention reason.
The evidence produced by the applicant, and there was much of it, was examined in detail by the Tribunal and the inconsistencies found both put to him and explained in its reasons for decision. I am not satisfied that the applicant has indicated any ground upon which a Court might reasonably suspect that a jurisdictional error had been made.
There are a number of reasons why the applicant's request to have this matter restored should not be permitted. Firstly, there is the delay and failure to properly explain it. Secondly there is a binding effect upon me of the decisions of Goldberg J in Daniel v The Minister [2004] FCA 21, approved by Weinberg J on an application for leave to appeal in Daniel v The Minister [2004] FCA 395 and also by the Full Bench in M211 of 2003 v RRT & Anor (2004) 212 ALR 520. At [14] in the decision of Goldberg J his Honour said:
“The taking of that course of action [an application to the Minister under section 417], by the applicant is indicative of a decision by him to abandon any course that would seek to challenge the decision of the Tribunal on grounds available under the Act, or otherwise at law. … This course of conduct, in my view, should properly be characterised as an indication by the applicant that he was prepared to accept that the Tribunal's decision was correct and that he did not intend to challenge that decision further in the court: Applicant A2/2002 v MIMIA [2003] FCA 576; Re Batuwantudawa [2003] FCA 684; Mudiyanselage v MIMIA [2003] FCA 823; Applicant M29/2001 v MIMIA [2003] FCA 1266; Applicant VUAD/2003 v MIMIA [2003] FCA 1331 at [16]–[20].”
This seems to me to put an end to the application. There is no merit in it, and there is no merit in the applicant's claim that he wishes to have legal representation. He has, at all times, been represented except in his application today. He was represented in the Tribunal by an experienced migration agent whose qualifications the Tribunal referred to glowingly. He was represented at the directions hearing by counsel, and by the same counsel in his decision to abandon the proceedings in December 2002. I order that the application be dismissed and that the applicant pay the respondent’s costs which I assess in the sum of $1,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 22 March 2005
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