NARN v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 778

FEDERAL COURT OF AUSTRALIA

NARN v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCA 778

NARN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 687 OF 2003

TAMBERLIN J
SYDNEY
25 JULY 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N687 OF 2003

BETWEEN:	NARN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	25 JULY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application to set aside the order made on 27 June 2003 is dismissed.

2.        The applicant pay the respondent’s costs of this application.

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	N687 OF 2003

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

JUDGE:	TAMBERLIN J
DATE:	25 JULY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application to vary or set aside an order made by the Court in the absence of the applicant who did not appear when the matter was called on for hearing on 27 June 2003.  The application is brought pursuant to O 35 r 7 of the Federal Court Rules.  The ground on which the application is brought is set out in the applicant’s affidavit of 17 July 2003 where she states that she failed to attend the hearing at 9.30 am on 27 June because she misread June for July and she has poor English and difficulties with reading handwritten English.  She states that she only realised her error when she received a judgment from the Court on 10 July 2003 and had it translated into Mandarin.  She has been assisted this morning by an interpreter.

2. The application before the Court for review of the decision by the Refugee Review Tribunal (“the Tribunal”) was filed on 10 June 2003.  The application records in large lettering, which is perfectly clear, that the time and date for hearing of the directions hearing was 9.30 am on 27 June 2003.  Nevertheless, if the applicant were able to show that she had any arguable case I would be inclined to consider setting aside the earlier order which I have made.  The applicant says that she would like to have the matter made the subject of further directions in order to obtain legal advice.

3. The application to the Court does not specify any particular ground of review apart from generalised formula grounds and there is no evidence supporting the claims made before the Tribunal.  At the hearing before the Tribunal the applicant did not appear and the Tribunal proceeded to make a decision in her absence but gave reasons for that decision.  The decision of the Tribunal was made on 23 April 2003 and it notes that the application for a protection visa was lodged on 13 May 2002.

4. There is no evidence of any attempt to obtain any legal advice over the past fourteen months apart from the fact that it appears some documents were prepared by an agent.  It is not clear whether the agent had legal qualifications or not.  When I asked the applicant as to what her grounds were for contending that there were errors in the decision of the Tribunal she made no attempt to set out in any way or describe the basis on which she wished to contend that the decision of the Tribunal was erroneous.

5. On a reading of the decision there is nothing which discloses any error, having regard to the limited material which is presently before me.  In these circumstances I am not satisfied that the applicant has any arguable case which can be raised in relation to granting judicial review in respect of the decision of the Tribunal.  Therefore, even if I accept the material in the affidavit, which I am inclined to accept, I do not propose to reopen or vary the orders which I have previously made, particularly having regard to the failure on the part of the applicant to attend before the Tribunal or present any documentary evidence of any significance before that Tribunal.

6. Accordingly, I dismiss the application to reopen the proceedings or set aside the earlier judgment or vary it in any way and I order that the applicant pay the costs of the respondent of this application.

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

Associate:

Dated:             5 August 2003

Applicant appeared in person.
Solicitor-Advocate for the Respondent:	R White
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	25 July 2003
Date of Judgment:	25 July 2003