NAZJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1383

FEDERAL COURT OF AUSTRALIA

NAZJ v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1383

NAZJ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N2559 OF 2003

EMMETT J
5 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N2559 OF 2003

BETWEEN:	NAZJ APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	5 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the proceeding.

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	N2559 OF 2003

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

JUDGE:	EMMETT J
DATE:	5 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant in this matter is a citizen of India who arrived in Australia on 11 September 2002.  On 14 October 2002 he lodged an application for a protection class XA visa under the Migration Act 1958 (Cth) (‘the Act’). On 28 November 2002 a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, (‘the Minister’) refused to grant a protection visa. On 30 December 2002 the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 20 October 2003 the Tribunal affirmed the decision not to grant a protection visa.

2. On 30 December 2003 the applicant filed an application under the Judiciary Act 1903 (Cth) and the Act for relief in the form of constitutional writs pursuant to s 39B of the Judiciary Act. On 11 February 2004 the Minister filed notice of objection to competency on the basis that contrary to the provisions of s 477(1) of the Act, the application was not, on its face, made within 28 days of the notification of the Tribunal decision. The form of the application contains a statement that the applicant was notified of the decision on 12 November 2003.

3. When the matter was called on for hearing for directions today there was no appearance for the applicant.  The Minister therefore sought an order that the proceeding be dismissed pursuant to O 10 r 3(2).  I have considered the reasons of the Tribunal for affirming the delegate’s decision.  The Tribunal accepted certain of the applicant’s claims, but the applicant’s evidence regarding certain matters led the Tribunal to conclude that his other claims lacked credibility.  The Tribunal found that the applicant did not present a truthful account of his circumstances in India and found that his description of those circumstances and the difficulties he allegedly had were both vague and unconvincing.

4. Since on its face the application is incompetent and in any event there is nothing in the reasons of the Tribunal to indicate any error on the part of the Tribunal, I consider that it is appropriate to accede to the Minister’s application.  Accordingly, I order that the application be dismissed and that the applicant pay the respondent’s costs of the proceedings.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             28 October 2004

No appearance by the applicant
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	5 March 2004
Date of Judgment:	5 March 2004