NATR v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 53

FEDERAL COURT OF AUSTRALIA

NATR v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 53

MIGRATION – review of Refugee Review Tribunal decision – applicant failed to appear – application dismissed

Migration Act 1958 (Cth)

NATR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 849 of 2003

HILL J
4 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 849 OF 2003

BETWEEN:	NATR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	4 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant 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 849 OF 2003

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

JUDGE:	HILL J
DATE:	4 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HILL J:

1. Before the court is an application filed on 16 July 2003 seeking judicial review of a decision of the Refugee Review Tribunal, affirming the decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, refusing the grant to the applicant of a protection class XA visa.  The application in essence complains that the Tribunal did not consider the case which the application had raised for its decision.  Emphasis is placed upon a statement in the relatively brief judgment of the Tribunal in which the Tribunal said:

The applicant's other claims are not supported by any other evidence.  I do not accept that the applicant's other claims are true.

1. In fact, the applicant did not attend at the hearing before the Tribunal, despite having been advised by the Tribunal that on the material before it, the application would be unlikely to be successful.  When the matter was called on for hearing before me this morning there was no appearance on behalf of the applicant.  It is not as if the applicant was unaware of the date of hearing. 

1. Indeed, on February 2 the applicant wrote a letter to the Registry enclosing an amended application and indicating in the letter that the hearing was today.  Counsel for the respondent has requested that, in accordance with Order 32 Rule 2, I order that the application be dismissed on the basis that the applicant is not present in court.  I propose to accede to the Minister's application and make an order accordingly.

1. I should say however that it is difficult to see how the applicant could succeed in his application.  No doubt it is true that the reasons of the Tribunal are perhaps elliptical, but I take the Tribunal member as having said that he has read the claims that were made by the applicant which are summarised in the Tribunal's reasons and that in the absence of the applicant appearing at the Tribunal hearing, the Tribunal did not have the opportunity of questioning the applicant on matters of interest to the Tribunal and accordingly that the Tribunal could not accept the claims of the applicant at least without further evidence from other persons or the applicant himself.

1. Certainly on the face of the matter there would not seem to be any jurisdictional error that has been committed by the Tribunal.

1. I accordingly dismiss the application and order the applicant to pay the respondent minister's costs.

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

Associate:

Dated:             12 February 2004

Counsel for the Applicant:	no appearance
Solicitor for the Applicant:
Counsel for the Respondent:	G R Kennett
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	4 February 2004
Date of Judgment:	4 February 2004