NAVC v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCA 1592
•26 NOVEMBER 2003
FEDERAL COURT OF AUSTRALIA
NAVC v Minister For Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1592NAVC V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N989 OF 2003
BENNETT J
26 NOVEMBER 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N989 OF 2003
BETWEEN:
NAVC
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
BENNETT J
DATE OF ORDER:
26 NOVEMBER 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. Pursuant to Order 32 rule 2(1)(c) the application is 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
N989 OF 2003
BETWEEN:
NAVC
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
BENNETT J
DATE:
26 NOVEMBER 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant in this matter is a citizen of Bangladesh who first arrived in Australia on 18 February 1999. He departed Australia on 10 March 2000 and re-entered Australia on 11 March 2000. In both instances he entered on a student visa. On 8 November 2001, the applicant's visa was cancelled pursuant to a s 137J of the Migration Act 1958 (Cth) (‘the Act’) for a breach of condition of that visa, being a failure to enrol in an approved course.
On 15 June 2002, the applicant was detained by the Department of Immigration and Multicultural and Indigenous Affairs, not having departed Australia following the cancellation of his student visa. On 3 July 2002, while in detention, he lodged an application for a protection (Class XA) visa. On 19 July 2003, the applicant was released from detention on a bridging visa.
The basis of the applicant's claim for a protection visa was that he asserted a fear of persecution in Bangladesh for reason of his political opinion. The applicant claimed that his father was a leader of the Awami League Party and that when that party was defeated in the elections in 2001 an attempt was made by the opposing Bangladesh National Party (‘BNP’) to kill him.
The applicant further claimed that, as a result of his connection with the Awami League Party, he and his family were threatened with death. He claimed an objectively well-founded fear of persecution if he returned to Bangladesh.
On 28 August 2002, a delegate of the respondent (‘the Delegate’) refused to grant the protection visa and on 25 September 2002 the applicant applied for a review of that decision to the Refugee Review Tribunal (‘the Tribunal’). On 16 April 2003, the Tribunal invited the applicant to attend a hearing on 10 June 2003. On 25 April 2003, the applicant responded affirmatively. The applicant was represented by an adviser at the time of his application for a protection visa and application for review before the Tribunal. However, without explanation, he failed to appear before the Tribunal. Having heard nothing from the applicant, the Tribunal proceeded to make its decision, on 24 June 2003 handing it down on 22 July 2003.
On 18 August 2003, the applicant applied to this court under s 39B of the Judiciary Act 1903 (Cth) for a review of the Tribunal's decision. On 30 October 2003, the matter came before a Registrar of this Court for directions. On that occasion the applicant did appear and directions were made including directions as to the filing of written submissions and any amended application.
No amended application was received by the Court nor were any written submissions filed or served.
When the matter came before me for hearing this morning, the matter was called and there was no appearance by the applicant. I am informed by Mr Markus, solicitor for the respondent, that no contact has been made with the applicant since the directions hearing and no response was received from the applicant to the service of the respondent's outline of submissions, which were served on the applicant on 24 November 2003.
The respondent submits that it is appropriate in the circumstances for the Court to make an order under Order 32 rule 2(1)(c) of the Federal Court Rules, that is, that as the proceeding has been called on for trial and the applicant is absent, the Court may dismiss the action. I note in that regard that under Order 35 rule 7 the applicant may apply to vary or set aside any judgment or order in these circumstances.
As the applicant has not appeared and as the applicant has the opportunity if necessary to apply to set aside this decision, I do not propose to deal with the application in substance and I propose to make an order under Order 32 rule 2(1)(c) dismissing the action.
Accordingly the application is dismissed pursuant to Order 32 rule 2(1)(c), with costs.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate:
Dated: 8 January 2004
No appearance by the Applicant Solicitor Advocate for the Respondent: Andras Markus Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 26 November 2003 Date of Judgment: 26 November 2003
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