NAUX v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1450

FEDERAL COURT OF AUSTRALIA

NAUX v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1450

NAUX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 981 of 2003

STONE J
9 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 981 OF 2003

BETWEEN:	NAUX & ORS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	9 DECEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the 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 981 OF 2003

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

JUDGE:	STONE J
DATE:	9 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application under s 39B of the Judiciary Act 1903 (Cth) filed on 14 August 2003 seeking a review of a decision of the Refugee Review Tribunal (‘Tribunal’) affirming a decision of a delegate of the respondent Minister to refuse protection visas under the Migration Act 1958 (Cth) (‘the Act’).

2. The four applicants are a husband, his wife and their two children.  The husband arrived in Australia from Sri Lanka on 16 April 1995, his wife, also from Sri Lanka, arrived later the same month.  Their two children were born in Australia.  On 30 June 1997 the applicants lodged an application for a protection visa.  That application contained no claims and was refused by a delegate of the Minister on 18 July 1997.  Subsequently the applicants’ claims, in the form of statutory declarations by the husband, were put before the Tribunal which affirmed the delegate’s decision.  It later transpired that the original application was invalid because of the absence of claims in it.  Thus the applicants were not precluded from filing a new application (‘second application’), which they did on 17 April 2001.  The second application was also dismissed by the Minister’s delegate and the applicants again sought review in the Tribunal.

3. On 26 November 2002 the Tribunal wrote to the applicants advising them that it was unable to make a favourable decision on the material before it and inviting them to appear in person before it on 5 February 2003.  Subsequently, at the request of the applicants, the date of the hearing was postponed twice; first to 24 March 2003 and then to 2 June 2003.  The applicants did not attend the hearing on 2 June nor did they contact the Tribunal to explain their failure to attend.  On 20 June 2003 the Tribunal affirmed the delegate’s decision and handed down its decision on 16 July 2003.

4. At the hearing today the male applicant spoke for himself and his wife and for his children as their next friend.  He explained that the applicants failed to attend the hearing before the Tribunal because of a medical emergency involving his wife, complicated by the need for him to care for their infant children.  He explained that they did not contact the Tribunal to explain their failure to attend because of their inadequate resources.

5. One cannot but feel for the applicants in the predicament in which they find themselves.  Nevertheless this Court has limited jurisdiction and can only interfere with the Tribunal’s decision if a reviewable error can be identified.  The Tribunal made a decision on the material it had before it almost three weeks after the applicants failed to attend the scheduled hearing and handed down that decision after another three weeks.  In all that time there was no communication from the applicants.  In the circumstances it was not unfair for the Tribunal to proceed as it did and there is no ground for a finding of jurisdictional error. 

6. The grounds as set out in the present application are said to be that the Tribunal’s decision was an improper exercise of the powers conferred by the Act, that the decision involved an error of law in not accepting the applicant (presumably the male applicant) as a refugee and that the word ‘refugee’ was wrongly interpreted. The application elaborates only on the first ground claiming that relevant considerations were not taken into account and that the decision was unreasonable in failing to accept the applicant’s claims.

7. All of these grounds focus on the merits of the application and this Court has no jurisdiction to review the Tribunal’s conclusions as to the merits.  I will only add that, as the applicants are self-represented, I have perused the Tribunal’s reasons in case there was any ground of review obvious on the face of the reasons.  There is not.  The Tribunal rejected the applicants’ claims because it found the accounts given by the husband and the wife ‘implausible’.  It held that any fear of persecution they might have was not well-founded.   

8. Accordingly the application must be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone .

Associate:

Dated:             9 December 2003

Counsel for the Applicant:	The applicant appeared for himself.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	9 December 2003
Date of Judgment:	9 December 2003