NAGR of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 312 (11 October 2002)

Last Updated: 21 October 2002

FEDERAL COURT OF AUSTRALIA

NAGR of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 312

NAGR of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 714 OF 2002

SACKVILLE, ALLSOP & JACOBSON JJ

SYDNEY

11 OCTOBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 714 OF 2002

BETWEEN:	APPLICANT NAGR OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE, ALLSOP AND JACOBSON JJ
DATE OF ORDER:	11 OCTOBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed pursuant to Federal Court Rules, O 52 r 38A(1)(c).

2. The appellant pay the respondent's costs of the appeal

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 714 OF 2002

BETWEEN:	APPLICANT NAGR OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE, ALLSOP AND JACOBSON JJ
DATE:	11 OCTOBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

EX TEMPORE REASONS FOR JUDGMENT REVISED FROM TRANSCRIPT

SACKVILLE J:

1 This matter comes before the Court by way of what purports to be a notice of appeal filed on 17 July 2002. The appellant seeks to appeal from a judgment delivered by a Judge of this Court on 26 June 2002. His Honour dismissed an application challenging a decision of the Refugee Review Tribunal ("RRT") given on 5 March 2002. The RRT's decision affirmed a decision of a delegate of the respondent ("the Minister") to refuse to grant a protection visa to the appellant.

2 The application dealt with by the RRT named as applicants the present appellant and her daughter. It was, however, only the appellant who sought judicial review of the RRT's decision in this Court and who has appealed from the primary Judge's decision. Nevertheless, the name that appears at the point where a signature should be recorded on the notice of appeal is not that of the appellant, but that of the daughter. Moreover, the notice of appeal is in handwriting and it is not clear whose handwriting it is.

3 When the matter was called there was no appearance by the appellant. However, there was an appearance in the Court by her daughter. There was also an appearance by a person who says that he is the appellant's brother-in-law. That person informed the Court that the appellant left Australia on 8 July 2002.

4 In the absence of the appellant, Mr Bromwich, who appears on behalf of the Minister, applied for the proceedings to be dismissed. Federal Court Rules ("FCR"), O 52 r 38A(1)(c) allows the Court to dismiss an appeal if the appellant is absent when an appeal is called on for hearing. In the course of putting the submission that the appeal should be dismissed, Mr Bromwich caused certain inquiries to be made. Those inquiries produced a document which has been admitted into evidence. The document indicates that on 17 June 2002 the appellant sought a bridging visa (class B). At that time she held only a bridging visa (class A). A bridging visa (class A) did not entitle the appellant to re-enter Australia.

5 Although the application for a bridging visa (class B) was refused on 5 July 2002, the appellant nevertheless left Australia on 8 July 2002. Accordingly, the appellant had departed Australia prior to the filing of the notice of appeal.

6 For the reasons we have given, there must be serious doubt as to the validity of the notice of appeal but we are prepared to proceed on the basis that it has regularly invoked the appellate jurisdiction of the Court.

7 There is one other matter that I should mention. It was suggested by the appellant's brother-in-law that the appellant had been kidnapped in Bangladesh. There is no satisfactory evidence that addresses that question. It is clear that the brother-in-law has no personal knowledge of what is said to have been the kidnapping in Bangladesh. The position would appear to be that the appellant has left Australia in circumstances where the only visa she held did not entitle her to return to Australia. It would also seem that any application for a protection visa of the kind she sought could only be made by her if she were in Australia.

8 In these circumstances, I think the appropriate course is that the appeal should be dismissed pursuant to FCR, O 52 r 38A(1)(c). I note that under FCR, O 52 r 38A(2), there are circumstances in which the Court may set aside an order dismissing the appeal. If any such application were to be made to the Court, it would need to be made by the appellant or by somebody duly authorised to act on her behalf and supported by proper evidence.

9 Accordingly the order that I propose is that the appeal be dismissed pursuant to FCR, O 52 r 38A(1)(c) and that the appellant pay the Minister's costs of the appeal.

ALLSOP J:

10 I agree. I only add that for whatever reason it was that the person named as the appellant on the document filed on 17 July 2002 left Australia, by doing so she put it out of her present power to re-enter on the bridging visa (class A) that she held. In these circumstances and for all the reasons identified in the learned presiding Judge's reasons, I would also propose the making of an order pursuant to FCR, O 52 r 38A(1)(c).

JACOBSON J:

11 I agree with the reasons given by the learned presiding Judge and I agree with the orders proposed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sackville, Allsop and Jacobson.

Associate:

Dated: 16 October 2002

The appellant was self-represented.

Counsel for the Respondent:	Mr R Bromwich
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	11 October 2002
Date of Judgment:	16 October 2002