NATG v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 911

FEDERAL COURT OF AUSTRALIA

NATG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 911

NATG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 821 of 2003

ALLSOP J
19 JULY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 821 of 2003

BETWEEN:	NATG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	19 JULY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application to set aside the orders of 11 March 2004 be dismissed.

2.The applicant pay the respondent’s costs of such 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	N 821 of 2003

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

JUDGE:	ALLSOP J
DATE:	19 JULY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 11 March 2004, I made orders dismissing the application made under s 39B of the Judiciary Act 1903 (Cth). On 11 March 2004, the matter had been set down for hearing and there was no appearance for the applicant.

2. Orders were entered on 1 April 2004.  On 30 April 2004, a notice of motion was filed in which the applicant sought an order that the orders made on 11 March 2004 in the absence of the applicant be set aside. 

3. The explanation for the non-appearance of the applicant was set out in an affidavit sworn by him.  He said that he did not receive the mail which informed of the hearing date.

4. The applicant had been ordered in 2003 by the Deputy Registrar to file written submissions five working days prior to hearing date.  No such submissions were filed prior to 11 March.

5. The matter came before me on 14 May 2004.  On that day the applicant appeared in person with the assistance of an interpreter.  I made orders as follows:

   1.that the applicant file with the Court on or before 18 June 2004 submissions as to the errors of the Tribunal, that is what the applicant says is wrong with the Tribunal’s reasons.

   2.the matter be stood over to Friday 25 June 2004 at 3.00 pm.

6. On 25 June 2004, the matter came before me again.  No submissions had been filed by the applicant.  Over the objection of the solicitor for the Minister I made further orders providing for written submissions.  The orders made on this day were as follows:

   1.on or before midday, 9 July 2004 the applicant file and serve written submissions as to why the orders made on 11 March 2004 should be set aside, those submissions should contain whatever submissions there are to be made as to the errors of the Tribunal.

   2.stand the matter over for further argument or judgment on a date to be fixed.

7. On this day I made it clear to the applicant that it was very important for him to file written submissions to indicate what the errors of the Tribunal were.  I indicated that unless I was persuaded by the written submissions that I would not set aside my previous order.

8. No submissions have been filed.  On 7 July 2004 an amended application under the Judiciary Act was filed, without leave.  The amended application seeks to have the decision of the Tribunal set aside.  I will treat the particulars identified in the amended application as a submission. It states as follows:

   1.the Tribunal did not put to me independent evidence including

   (a)DFAT report of 27 March 2000

   (b)CISNET documents CX 41735

   (c)CUSSDCR on Human Rights Practice 2001

   (d)CISNET document CX 276585

   2.the Tribunal misunderstood the term “persecution” as defined in the Convention.

9. I will take the first of the above matters as an assertion that there was a denial of natural justice.

10. No submissions have been placed before me to found any argument that the procedure undertaken was in anyway unfair.  It is the task of the applicant to bring forward his claims about his position in relation to his country of origin.  The material used by the Tribunal was not of a kind, which in order for there to be fairness, needed to be specifically put to the applicant.  In any event, as the submissions of Mr Smith of 8 March 2004 make plain the Tribunal did not find the applicant a reliable witness.  The applicant, according to the Tribunal, was unable to provide any coherent reasons why the groups mentioned by him had any adverse interest in him apart from a vague assertion that during protests he had sworn against various groups.  However, the Tribunal accepted that the applicant, and his family were supporters of the Lebanese Forces but found that he had not ever been involved, except in a very minor way, in any political activities on behalf of that group.  It rejected the claim that the applicant had been stabbed in the arm during the protest.  I see no basis to conclude that Tribunal failed to afford the applicant natural justice.

11. I see no basis to conclude that the Tribunal misunderstood the word “persecution” as defined in the Convention.

12. In any event, the applicant has put forward no coherent submission in support of either the underlying application under s 39B or as to why I should set aside my previous orders.

13. In all the circumstances, I dismiss the application to set aside my orders made on 11 March 2004.

14. The Orders of the Court will be:

    1.        The application to set aside the orders on 11 March 2004 be dismissed.

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

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            19 July 2004

Applicant appeared in person with the assistance of an interpreter.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	25 June 2004
Date of Judgment:	19 July 2004