Nasl v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1488

FEDERAL COURT OF AUSTRALIA

NASL v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1488

NASL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 764 of 2003

BRANSON J
5 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 764 of 2003

BETWEEN:	NASL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	5 DECEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 764 of 2003

BETWEEN:	NASL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	5 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) by which a decision of a delegate of the Minister not to grant the applicant a protection visa was upheld. 

2. The application itself discloses no ground upon which the decision of the Tribunal could be set aside.  The purported grounds of review are constituted by un-particularised complaints concerning the decision of the Tribunal.  The applicant has not attended this hearing today.  He has this morning faxed to the Court a partly illegible document which appears to be a medical certificate certifying that he is unfit for work on 4-5 December 2003, (that is, he was unfit for work yesterday and is unfit for work today).  Written submissions accompany the medical certificate.  They do not seek an adjournment of today’s hearing.  They refer to the applicant’s inability, for financial reasons, to engage a solicitor or counsel to represent him.  Otherwise they largely repeat the un-particularised complaints concerning the decision of the Tribunal that are contained in the application itself.

3. The inability of the applicant to articulate proper grounds of review is probably not surprising.  First, although he has had access to the pilot legal advice scheme he is not represented by a lawyer on this application.  Secondly, and for present purposes more significantly, the applicant did not attend the hearing to which the Tribunal invited him when it advised him that it was unable to make a decision in his favour on the papers relating to his application.  Nor, as the reasons for the decision record indicate, did the applicant contact the Tribunal to explain his failure to attend the scheduled hearing.

4. The Tribunal at [27]-[29] of its reasons said:

   ‘Notwithstanding that the applicant has claimed that he was the subject of persecution because of his political activities in Bangladesh he did not provide any specific details of his claims at all, merely making general assertions about what he did and what might happen to him if he returns to Bangladesh.  Consequently, his claims were vague and generalised, and appeared to be generic, and I am unable to establish the relevant facts of the matter.  His claims were also essentially in the same terms as another applicant [reference is given to the other applicant] who jumped ship at the same time and place as the applicant.  I would have questioned the applicant about the specific details about his claims at the hearing if he had attended.  Accordingly, I am unable to accept that the applicant’s claims have any credibility or veracity.

   The applicant’s claims of his political activity were almost completely lacking in detail.  His claims were general in nature avoiding any of the where, why, who, when and how.  He did not produce any supporting evidence of his membership of the political party he claimed to have belonged to, nor of his specific responsibilities within that organisation despite claiming to have been an active member and important leader of the JP in his local area.  He did not provide any details at all of any of his activities in supporting candidates in local elections, when the elections might have occurred or the violence and attacks he claimed to have suffered or feared at the hands of opposition political workers. 

   In light of this evidence, I am not satisfied that the applicant was a subject of persecution for his political activities in Bangladesh or that there is a real chance of him being the subject of persecution if he returns to India.’

5. The Tribunal recorded that it was not satisfied that the applicant has a well‑founded fear of persecution by reason of a political opinion or for any other convention reason in Bangladesh. 

6. I can identify no basis upon which the decision of the Tribunal is subject to review in this Court or at all.  The decision of the Tribunal was the almost inevitable outcome of the applicant’s failure to attend the hearing to which the Tribunal had invited him and his subsequent failure to explain his non‑attendance.  In the circumstances I consider it appropriate to proceed and to determine the application in the absence of the applicant (O 32 r 2(1)(d)).

7. The application is dismissed with costs.

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

Associate:

Dated:            15 December 2003

Counsel for the Applicant:	The Applicant did not appear
Counsel for the Respondent:	M Wigney
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	5 December 2003
Date of Judgment:	5 December 2003