Nari v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1112

FEDERAL COURT OF AUSTRALIA

NARI v Minister for Immigration & Multicultural & Indigenous Affairs
[2003 ] FCA 1112

NARI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N758 of 2003

WILCOX J
SYDNEY
29 SEPTEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N758 of 2003

BETWEEN:	NARI APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	29 SEPTEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application to set aside the order made on 16 July 2003 be dismissed.

2.        The appellant pay the costs of today.

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	N758 of 2003

BETWEEN:	NARI APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	29 SEPTEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. On 16 July 2003, this matter came before me for directions.  It is an appeal against a decision of Federal Magistrate Scarlett which was given on 4 June 2003.  The Magistrate dismissed an application for review of a decision by the Refugee Review Tribunal upholding a decision by a delegate of the Minister to refuse a protection visa.  The Magistrate went through the points that had been raised by the applicant in a document handed to the Magistrate and found no substance in any of those points. 

2. When the matter came before me for directions, the appellant did not appear.  Accordingly, I acceded to an application to dismiss the appeal under Order 52 rule 38(1)(a) for want of prosecution.  I ordered the appellant to pay the respondent’s costs of and incidental to the appeal.  Because of the course that I took, it was not necessary for me to refer the matter to the Chief Justice for determination of the question whether the appeal should be heard by a Full Court or a single Judge.

3. On 14 August 2003, the appellant filed an affidavit, as a result of which the matter has been returned to me today.  The appellant wishes me to set aside the order of dismissal and allow the appeal to proceed to hearing. 

4. The affidavit does not deal in any detail with the Magistrate's decision.  No doubt the reason is that, as the appellant told me today, he has not read the decision.  The decision was of course written in the English language.  The appellant does not read English.  Apparently he has not taken any steps to have the decision read to him by somebody who speaks Bengali and also reads English.

5. Only two matters are set out in the affidavit which go to the merits of the decision of the Magistrate: 

   (i)       Paragraph 7 says:
   ‘The decision of the Federal Magistrate's Court is wrong. The Honourable Federal Magistrate overlook [sic] the issues of the Tribunal decision, that is I am a minority Hindu in Bangladesh.’

   (ii)      Paragraph 10 says:
   ‘Honourable Federal Magistrate did not hear my audio tape of my RRT interview.’

6. In relation to the first of those matters, it is clear that the Tribunal understood that a person who is a Buddhist, as the appellant claims to be, is a member of a minority religion in Bangladesh.  The same statement applies to an orthodox Hindu. The Magistrate understood this.  I do not think it can be argued that he was under any misconception about the fact that the appellant was a member of a religious minority.  The question was whether he had sustained persecution on that ground, and therefore faced a real prospect of similar persecution if he returned to Bangladesh.  Unfortunately for the appellant, the Tribunal was not prepared to accept the truthfulness of what he said in regard to alleged past persecution. 

7. As to the second ground, that the Magistrate did not hear the audio tape of the Tribunal’s interview, this may be true.  However, there is nothing to suggest the Magistrate was asked to do this, or even that the tape was available.  Under those circumstances, it does not appear to be reasonably arguable that the Magistrate fell into any error in that regard. 

8. I understand that the appellant is deeply unhappy about the Tribunal's decision and the fact that his application for review was dismissed by the Magistrate.  However, as I have endeavoured to explain to him, neither the Magistrate nor the Court has power to review the Tribunal's decisions on matters of fact.  This means that there is no power to review the finding of the Tribunal that the appellant is not to be believed in relation to critical assertions made by him on factual matters.  It seems to me that the case that the appellant seeks to make is not one that is fairly arguable.

9. The appellant produced a document today dealing with his absence from Court on 16 July.  It is an unsatisfactory document.  It is addressed ‘to whom it may concern’ and is a statement by a person called ‘John’ who is identified as Site Manager, Cleaning, Westfield Shopping Town, Burwood.  The document certifies that the appellant is an:

   ‘employee of this shopping town cleaning service.  He was sick on 16^th and 17^th July 2003.  He ring [sic] me on those days and told me that he had stomach pain as well as left hand pain.  So, he was absent on [sic] his work on those days.’

10. I do not understand why the appellant could not have telephoned the Court, as well as John, to report his illness.  The appellant produced no medical evidence to substantiate his claim of illness.  Nor is it readily apparent to me that the degree of disability that he suffered would have prevented him attending the Court for a directions hearing.  However, be those matters as they may, for me the critical point is whether there is any utility in my setting aside the order of dismissal under Order 52 rule 38(1)(a).  I am not satisfied there is.  Nothing has been raised by the appellant to suggest an arguable case of error by the Magistrate.  Under those circumstances, it would be a futility to allow the appeal to proceed to a hearing.  I am not prepared to set aside the order that I made on 16 July 2003.  I dismiss the application to set aside that order.   I order that the appellant pay the costs of today.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:            29 September 2003

The appellant appeared in person.
Solicitors for the Respondent:	Blake Dawson Waldron
Date of Hearing:	29 September 2003