NARH v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 402

FEDERAL COURT OF AUSTRALIA

NARH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 402

NARH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1351 of 2002

MOORE J
SYDNEY
16 APRIL 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1351 OF 2002

BETWEEN:	NARH APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	16 APRIL 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed pursuant to Order 52 Rule 38A of the Federal Court Rules.
2. The applicant pay the respondent’s 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	N1351 OF 2002

BETWEEN:	NARH APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE:	16 APRIL 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of a Federal Magistrate of 25 November 2002.  The Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 18 July 2002.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs refusing to grant the appellant a protection visa. 

2. The decision of the Tribunal was essentially based on its fairly emphatic rejection of the account given by the appellant of his experiences in Bangladesh.  Central to his claims was that he had been a Buddhist Monk and had been the subject of mistreatment constituting persecution.

3. The appellant has not appeared to prosecute his appeal.  The appeal was fixed for hearing today at a directions hearing held on 4 February 2003, when the appellant appeared for himself.  Indeed, it is clear that the appellant has continued to be aware of the hearing date of the appeal because on or about 10 April 2003 he wrote to the Registrar of this Court seeking that the hearing of the appeal be postponed.  That letter was responded to by letter on 11 April 2003 sent to the appellant at his address for service.  The letter to the appellant said that any application to postpone the hearing would be dealt with on 16 April 2003 and that if the application to postpone were unsuccessful, the appeal would be heard on 16 April 2003. 

4. While there is no direct evidence before me that that letter of 11 April 2003 was received by the appellant, it remains the position that the appellant knew the appeal had been fixed to be heard on 16 April 2003, and would not have known that the request to postpone had been acceded to, because it had not been.  In those circumstances there is no basis of substance, in my view, for the appellant failing to appear.  The Minister has applied for the appeal to be dismissed on the grounds of want of appearance.  The Court has power to do so under Order 52, Rule 38A and I propose to accede to that request.

5. I should add that the appellant now seeks to raise a point in the appeal that could have been argued before the Federal Magistrate and which would, or at least may, have depended on evidence being addressed at the hearing before the Federal Magistrate.  In those circumstances the appellant, were the appeal to proceed to hearing today, would be confronted with the difficulty of persuading the Court to entertain this ground and, further, admit any evidence sought to be relied upon in support of that ground.

6. The issues raised before the Federal Magistrate did not persuade him that there was any legal error attending the decision of the Tribunal and his Honour noted that the Tribunal’s decision was based, in substantial part, on its wholesale rejection of the account of the appellant of his experiences prior to arriving in Australia.

7. Accordingly, I will order that the appeal be dismissed and the appellant pay the respondent’s costs.

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

Associate:

Dated:             24 April 2003

There was no appearance by the appellant.
Counsel for the Respondent:	Mr G Kennett
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	16 April 2003
Date of Judgment:	16 April 2003