NATG v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 225

FEDERAL COURT OF AUSTRALIA

NATG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 225

NATG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 821 of 2003

ALLSOP J
11 MARCH 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:	11 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed under O 32 r 2.

2.The applicant pay the respondent's costs.

THE COURT DIRECTS:

3.The respondent, through its solicitors, send a letter to the applicant (at the address provided to the court and the respondent by the applicant on his application) informing him of the orders of the Court; such letter is to refer to the terms of O 35 r 7(2)(a).

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:	11 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the applicant seeks review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 11 December 2002.  The Tribunal affirmed a decision of the delegate of the respondent Minister to refuse to grant the applicant a protection visa.

2. The matter was set down for hearing in December 2003 before me.  Due to other commitments I was obliged to vacate the hearing of that matter in November.  Letters were sent to the parties on 3 and 7 November dealing with the allocation of the fresh hearing date.  The hearing was listed for 10.15 am today.  The matter was called on for hearing this morning.  The applicant has not attended.  The letters of 3 and 7 November 2003 were sent by my associate to the address on the application form.

3. The matter has been called three times outside under the name NATG by reasons of the provisions of s 91X of the Migration Act 1958 (Cth). The court officer examined the floor of the court building for the applicant. No person was apparently present.

4. I have read carefully the decision of the Tribunal and Mr Smith's helpful submissions.  I am not able to discern any error in the legal approach of the Tribunal.

5. The applicant is a Lebanese Christian, who asserted before the Department and the Tribunal that he would suffer persecution on return to Lebanon.  The claims as to the fear of persecution were set out by the Tribunal on pages 4 and following of its reasons.  The applicant complained that if he returned to Lebanon he would be caught and mistreated, persecuted, tortured and perhaps killed.  He says he fears the Syrian Army and extremist Islamist anti-Christian groups.

6. The Tribunal, after dealing with the applicant's evidence and some country information, came to the view, for the apparently rational reasons it expressed, that it had formed an unfavourable view of the applicant's credit and found him to be an unreliable witness.  In significant part it rejected his evidence and found, directing itself to the correct question, that the applicant had no well-founded fear of persecution, or put another way, was not satisfied that the applicant had a well-founded fear of persecution.

7. I do not propose to traverse the submissions of Mr Smith.   I will leave them with the file.  It suffices to say that I accept those submissions.  On this basis, I propose to dismiss the application.

8. Mr Smith requested that I simply move under O 32 r 2(1)(c).  I so make an order under that Order, that is, by reason of the absence of the applicant.   However, it should be noted that on the material that is currently before me, I would otherwise dismiss the application by reason of the absence of any apparent jurisdictional error or other error in approach of the Tribunal.

9. Those matters might be relevant to consider in any application, if it be made, by the applicant under O 35 r 7(2)(a), to set aside these orders.

10. Should the applicant make any application under O 35 r 7(2)(a) it should be noted for the purposes of the application that O 35 r 7(2)(a) that I have examined the reasons of the Tribunal in the submissions of Mr Smith, although I have not had the benefit of any submissions on behalf of the applicant, none having been filed contrary to the directions previously made.

11. The applicant seeks an extension of time to file his application.  The decision of the Tribunal was made on 11 December 2002; the application was filed in this Court on 11 July 2003.  On the basis of the reasons I have given, I would conclude there is no jurisdictional error and the decision of the Tribunal was a privative clause decision.  On that basis, the application was made out of time, and this Court is not authorised by statute to extend time.  For that reason also, I would otherwise have dismissed the application as, in effect, not within the statutory authority of this Court to hear.

12. In any event, in all the circumstances, I make an order dismissing the application under O 32 r 2.  I direct the respondent, through its solicitors, to send a letter to the applicant informing him of that fact at the address provided to the Court and to the respondent by the applicant on his application.  Such letter is to refer to the terms of O 35 r 7(2)(a), and I order that the applicant pay the respondent's costs of the proceedings to date including today.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             18 March 2004

No appearance for or on behalf of the Applicant.
Counsel for the Respondent:	Mr J.  Smith
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	11 March 2004
Date of Judgment:	11 March 2004