NBJG v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 243

FEDERAL COURT OF AUSTRALIA

NBJG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 243

NBJG V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1500 OF 2004

NBJH V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1501 OF 2004

MADGWICK J
24 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	1500 OF 2004

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	1501 OF 2004

BETWEEN:	NBJH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	24 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Each application be dismissed.

2.The applicants pay the costs of the respondent assessed in the sum of $3,900 in each case.

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	1500 OF 2004

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	1501 OF 2004

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

JUDGE:	MADGWICK J
DATE:	24 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MADGWICK J:

1. I refer to my remarks in transcript which I set out below:

   ‘There is no appearance for either of the applicants.  It is now 25 past 10.00 am.  When the applicants were not present at 10.15 am my associate, in accordance with the practice of this Court and its officers, which goes way beyond what is necessary, rang each of the applicants (with the aid of the interpreter who was present, at no small expense to the Court).  Each of them indicated that he was too busy to attend today, despite being aware of the fact that the matters were listed for hearing, and proffered the information that they may be going back to Sri Lanka anyway.’

2. It is appropriate that the cases be dealt with together.  Each applicant is a citizen of Sri Lanka who arrived in Australia on 28 March 2004.  Each fairly promptly claimed to have a well-founded fear of persecution in his home country at the hands of the Sri Lankan authorities for reasons of imputed political opinion, namely that he would be perceived to be a supporter of the LTTE (the Tamil Tigers).

3. Additionally and alternatively, each claims to have a well-founded fear of persecution from the LTTE because, in the case of applicant NBJH, the applicant said he had travelled in the area and inhabited the area occupied by the LTTE and had knowledge about that area and, in the case of the applicant NBJG, because the LTTE were aware that the applicant had told the police that he had supplied goods to the LTTE.

4. Each applicant raises identical grounds for review.  There is no particularisation of any of the grounds and there is little to be gained by reciting them.  In each case, the Refugee Review Tribunal (‘the Tribunal’) did not accept that the applicant had been imputed by the Sri Lankan governmental authorities with a political opinion as claimed, nor did the Tribunal accept that the LTTE would seek to harm either applicant on his return to Sri Lanka.

5. In each case, for reasons given, the Tribunal did not accept that the applicant was a credible witness and the Tribunal considered that it was quite implausible that a Sri Lankan of Sinhalese ethnicity would support the LTTE or by inference would be regarded as a supporter of the LTTE.  In any event, at the time the Tribunal was considering the matter, a cease-fire was in effect in Sri Lanka, the LTTE was no longer banned and people were no longer subject to arrest for being members of it. 

6. There is no basis that I can see for according any substance to any of the particularised grounds of judicial review asserted and in each case the application should be dismissed.

7. The clear inference is that these proceedings have been instituted, like so many others, simply with a view to prolonging the applicants’ stay in Australia although each of their cases lacks legal merit.  In my opinion, the Court ought mark its displeasure at their contumelious treatment of the respondent and the Court by an order for costs on an indemnity basis.

8. In each case such costs are assessed at $3,900.

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

Associate:

Dated:             March 2005

Solicitor for Applicant NBJG:	No appearance by the applicant
Solicitor for Applicant NBJH:	No appearance by the applicant
Counsel for the Respondent:	Ms S Kaur-Bains
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	24 February 2005
Date of Judgment:	24 February 2005