NARN v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCAFC 241

FEDERAL COURT OF AUSTRALIA

NARN v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 241

NARN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 947 OF 2003

LINDGREN, EMMETT AND STONE JJ
3 NOVEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 947 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NARN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	LINDGREN, EMMETT AND STONE JJ
DATE OF ORDER:	3 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for leave to appeal be dismissed. 

2.        The appellant (applicant for leave to appeal) 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	N 947 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

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

JUDGES:	LINDGREN, EMMETT AND STONE JJ
DATE:	3 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 10 June 2003 the appellant filed an application in this Court seeking review of a decision of the Refugee Review Tribunal (‘Tribunal’) affirming a decision of a delegate of the respondent Minister not to grant the appellant a protection visa under the Migration Act 1958 (Cth). The application was made returnable on 27 June 2003. The appellant did not appear at that time and the primary judge dismissed her application and ordered that she pay the respondent’s costs.

2. The appellant filed a notice of motion under O 35 r 7 of the Federal Court Rules seeking that the order of dismissal be set aside.  In her supporting affidavit the appellant explained that she failed to attend the directions hearing on 27 June 2003 because she misread the date.  Her English is poor and, in particular, she has difficulty in reading handwritten English and thought the scheduled date was 27 July 2003. 

3. The learned primary judge noted that the return date on the application was in large lettering and ‘perfectly clear’.  Nevertheless his Honour said ‘if the applicant were able to show that she had any arguable case’ he would have been inclined to consider setting aside the earlier order however, as he was not satisfied the appellant had any arguable case he declined to do so.

4. The appellant based her application for a protection visa on a fear of persecution stemming from her active involvement with the Falun Gong movement in China.  The Tribunal was not satisfied that the appellant was an adherent of Falun Gong or that the incidents of harassment by the Chinese authorities to which she referred in her visa application had taken place.  The Tribunal noted that the appellant did not attend the hearing before the Tribunal which had been scheduled for her and that consequently there was no opportunity to explore her claims with her or to obtain additional information about her knowledge of and commitment to Falun Gong.

5. We agree with his Honour’s assessment of the appellant’s application to this Court.  In any event the refusal to set aside the dismissal order was properly within his Honour’s discretion; House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.

6. The respondent objects to the competency of the appeal on the basis that the judgment appealed from is interlocutory and that the requisite leave to appeal, under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) has been neither sought nor granted. It is sufficient to note that, treating the ‘notice of appeal’ as an application for leave to appeal, the appeal must fail. Counsel for the respondent has accepted that it is appropriate to deal with the matter in this way. We would therefore deny leave to appeal and order that the appellant pay the respondent’s costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             3 November 2003

Counsel for the appellant:	The appellant appeared in person with the assistance of an interpreter.
Counsel for the respondent:	A J McInerney
Solicitor for the respondent:	Sparke Helmore
Date of hearing:	3 November 2003
Date of judgment:	3 November 2003