NBCI v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 280

FEDERAL COURT OF AUSTRALIA

NBCI v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCAFC 280

NBCI  -v-  MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1117 of 2004

RYAN, MERKEL & CONTI JJ

3 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1117 of 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NBCI Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGES:	RYAN, MERKEL & CONTI JJ
DATE OF ORDER:	3 NOVEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The appellant pay the respondent’s costs of the appeal, to be taxed in default of agreement.

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	NSD 1117 of 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NBCI Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent

JUDGES	RYAN, MERKEL & CONTI JJ
DATE:	3 NOVEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. There is before the Court an appeal from a judgment of a single Judge dismissing an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision of a delegate of the respondent Minister refusing the appellant a protection visa.  The learned primary Judge’s reasons were succinct and recited:

   ‘When the matter came before me, counsel for the respondent appeared, as did the applicant, with the assistance of an interpreter.  When asked what matters he wished to raise in relation to the proceedings, the applicant was unable to specify anything, and seemed to have elected not to speak, beyond asking me whether he could appeal from this decision.

   In these circumstances, I do not think that any grounds have been made out for granting any application for review of the decision of the Tribunal.  I have read the written submissions prepared on behalf of the Minister, and I rely on those, together with a reading of the relevant documents, which have been handed to me.  There appears to be no substance whatsoever in the applicant's case, and no grounds have been made out.

   Accordingly, I dismiss the application, and order that the applicant pay the respondent's costs.’

2. The appellant has failed to appear on the hearing of the appeal or to advance anything in support of it.  He has failed to comply with an order of the Registrar for filing and service of an appeal book by 24 August 2004.  As well, the appellant disregarded an order of Sackville J of 31 August 2004 requiring him to file and serve by 21 September 2004 an amended notice of appeal setting out particularised grounds of appeal.  The same order directed the appellant to file his outline of submissions by 20 October 2004.  That direction, too, has been disregarded.

3. These successive and cavalier omissions by the appellant have prompted the respondent Minister to move under O 52 r 38(1)(a) of the Rules of this Court for the appeal to be dismissed for want of prosecution.  In the alternative the respondent Minister submitted that the appeal should be dismissed on the merits. 

4. We are satisfied that the Minister is entitled to have the appeal dismissed on both of the grounds upon which she has relied.  We have carefully considered the decision of the Tribunal and of the primary Judge and are not satisfied that any reviewable or appealable error has been demonstrated.

5. The orders of the Court are that the appeal be dismissed and the appellant pay the respondent’s costs of the appeal.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

Associate:

Dated:            3 November 2004

The appellant did not appear
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 November 2004
Date of Judgment:	3 November 2004