NAFU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 147 (7 February 2003)

Last Updated: 7 March 2003

FEDERAL COURT OF AUSTRALIA

NAFU v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 147

MIGRATION - application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa - no appearance by Applicant at directions hearing - application dismissed

Federal Court Rules O 10 r 3, O 35 r 7

NAFU v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1340 OF 2002

EMMETT J

7 FEBRUARY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1340 OF 2002

BETWEEN:	NAFU APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	7 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. the application be dismissed pursuant to O 10 r 3(2);

2. the Applicant pay the Respondents costs;

3. the Respondent inform the Applicant in writing as soon as practicable of the terms of the orders and of the terms of O 35 r 7(2)(a).

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	N1340 OF 2002

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

JUDGE:	EMMETT J
DATE:	7 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The Applicant claims to be a citizen of Fiji. He arrived in Australia on 17 May 2000. In November 2001, he lodged an application for a protection (class XA) visa. On 11 February 2002, a delegate of the Respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), refused to grant a protection visa and, on 25 February 2002, the Applicant applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. On 8 November 2002, the Tribunal affirmed the decision not to grant a protection visa.

2 On 13 December 2002, the Applicant filed an application to this Court for review of the decision of the Tribunal. When the matter was called on for directions today there was no appearance for the Applicant. The Minister, accordingly, moves for dismissal of the proceeding pursuant to O 10 r 3(2) which provides:

"If no applicant appears before the Court on a directions hearing the Court may dismiss the application or make any other order which it thinks proper."

3 I have considered the decision and reasons for decision of the Tribunal. On 19 September 2002, the Tribunal wrote to the Applicant advising him that it had considered the material before it in relation to his application but that it was unable to make a favourable decision on that information. That letter was sent to the Applicant and to his authorised recipient.

4 On 7 November 2002, the Applicant advised the Tribunal in writing that he wanted the Tribunal to proceed to make a decision without taking any further action to allow or enable him to appear before it. The matter was therefore determined on the material then available to the Tribunal.

5 The Applicant claimed, in the papers considered by the Tribunal, that he came from a family of Fiji Labour Party supporters and that his father had been arrested during the coup in May 1987. He claimed that he campaigned for the Fiji Labour Party in the 1999 election and was detained briefly by ethnic Fijians before the May 2000 coup. He claimed that he was mistreated and accused of betraying his race. He said he fled to Australia fearing that, in the light of the murder of John Scott and his partner, he too could be killed if he returned to Fiji.

6 The Tribunal characterised the Applicant's claims about persecution as being "vague and long on rhetoric". The Tribunal considered that the incident alleged by the Applicant was likely to have been entirely fabricated. The Tribunal concluded that the Applicant was not, and is not, a prominent supporter of the Fiji Labour Party and did not believe that he would attract any adverse attention from the authorities.

7 The inadequacies and internal inconsistencies of the Applicant's claims when compared with country information available to the Tribunal led it to conclude that the Applicant had no well-founded fear of persecution. There is no reason, from my reading of the Tribunal's reasons, to consider that there has been any impropriety in relation to the conduct of the hearing before the Tribunal and there does not appear to be any substance in the Applicant's claim for review.

8 In the circumstances, I consider that it is appropriate to order that the application be dismissed summarily pursuant to O 10 r 3(2). However, I also propose to order the Minister to inform the Applicant in writing as soon as practicable of the terms of O 35 r 7(2)(a), which provides that the Court may, if it thinks fit, set aside an order where the order has been made in the absence of a party.

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

Associate:

Dated: 5 March 2003

Counsel for the Applicant:
Solicitor for the Applicant:
Counsel for the Respondent:
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	7 February 2003
Date of Judgment:	7 February 2003