Ndiwe v Minister for Immigration and Multicultural Affairs

[2001] FCA 131

FEDERAL COURT OF AUSTRALIA

Ndiwe v Minister for Immigration and Multicultural Affairs [2001] FCA 131

PAUL NDIWE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1473 OF 2000

LINDGREN J
21 FEBRUARY 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1473 OF 2000

BETWEEN:	PAUL NDIWE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	21 FEBRUARY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be 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	N 1473 OF 2000

BETWEEN:	PAUL NDIWE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	21 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant applies for review of a decision of the Refugee Review Tribunal made on 20 December 2000 by which that Tribunal affirmed a decision of a delegate of the respondent (“the Minister”) not to grant him a protection visa.  Upon the proceeding being called on for trial this morning the applicant was absent and I have decided to dismiss the application under Order 32, par 2(1)(c) of the Federal Court Rules.

2. I will, however, say something about the history of the proceeding, the grounds of the present application and the Tribunal's reasons for decision. 

3. The application by which this proceeding was commenced was filed on 29 December 2000 and the form of application appointed 17 January 2001 for the first directions hearing.  On that day, Mr David Ash of counsel appeared for the applicant before Registrar Quinn.  Consent directions were made and the matter was fixed for hearing before me today at 10.15am.  Mr Ash had been retained under the Pilot Migration Scheme.  He wrote to my Associate on 24 January noting that he had completed his role under the Scheme, that an amended application for an order of review had been filed in accordance with directions of Registrar Quinn, and that the applicant was aware of the hearing date and of other possible places he might approach for legal assistance.

4. The form of amended application for an order of review to which Mr Ash referred was in fact filed on 24 January 2001 and bears what I am satisfied is the signature of the applicant.  That form of application specifies today at 10.15am as the time and date for hearing. 

5. I am satisfied that the applicant knows that the proceeding is fixed for hearing today. 

6. The applicant has been in immigration detention.  It might be questioned, therefore, why those responsible have not ensured that he appeared today. There has been filed in Court today and read affidavit evidence showing that the applicant escaped from such detention while at Liverpool Hospital on 17 February.  Of course, this has made it impossible for the personnel at the Villawood Detention Centre to bring him to Court for the hearing this morning but it has not made it impossible for him to appear, although one may readily conceive of reasons why he has chosen not to do so.

7. I turn now to the grounds of the present application and the reasons for decision of the Tribunal.  The form of amended application identifies two grounds of the application.  One is that the decision involved an “error of law” but the amended form of application does not identify the error of law on which the applicant relies.  The second ground is the “no evidence” ground, that is, the ground that there was no evidence or other material to justify the making of the Tribunal's decision.  This ground does contain “particulars”, but they are not in fact particulars of such a ground. 

8. In its reasons for decision, the Tribunal found the applicant's claims and evidence to be inconsistent with country information relating to Nigeria and as well to contain internal discrepancies. The Tribunal pronounced itself as not satisfied on the facts that the applicant had a well founded fear of persecution for a Convention reason. I should say that the applicant's claim was that he was a Christian who had suffered persecution by Muslims, although the nature of his claim did change somewhat during the course of the hearing. The Tribunal questioned the applicant about aspects of his claims and evidence and was not satisfied that they were supported. In these circumstances it is not obvious to me that the grounds relied upon in the amended application or, for that matter, any of the other grounds referred to in subs 476(1) of the Migration Act 1958 (Cth) exist. I mention these matters only to indicate that it seems to me that there is no obvious injustice done in my dismissing the application under the Court’s rules on account of the absence of the applicant from the hearing today.

9. In the result the Court orders that:

   1.The application be dismissed.

   2.The applicant pay the respondent’s costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:            23 February 2001

There was no appearance by or for the Applicant
Counsel for the Respondent:	Mr G R Kennett
Solicitors for the Respondent:	Blake Dawson Waldron
Date of Hearing:	21 February 2001
Date of Judgment:	21 February 2001