NAER of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 382 (27 November 2002)

Last Updated: 9 December 2002

FEDERAL COURT OF AUSTRALIA

NAER of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 382

APPLICANT NAER of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 646 OF 2002

WHITLAM, SACKVILLE & CONTI JJ

SYDNEY

27 NOVEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 646 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NAER OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	WHITLAM, SACKVILLE & CONTI JJ
DATE OF ORDER:	27 NOVEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The notice of appeal be treated as an application for leave to appeal.

2. The application for leave to appeal be dismissed.

3. The appellant pay the respondent's costs of the application for leave to 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 646 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NAER OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	WHITLAM, SACKVILLE & CONTI JJ
DATE:	27 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WHITLAM J:

1 I will ask Sackville J to give the reasons of the Court.

SACKVILLE J:

2 This purports to be an appeal from a judgment of a Judge of this Court given on 14 June 2002. On that day his Honour made an order pursuant to Federal Court Rules, O 32 r 2(1)(c) ("FCR") dismissing an application seeking judicial review of the decision of the Refugee Review Tribunal ("RRT") given on 28 February 2002.

3 The RRT had affirmed a decision of a delegate of the respondent ("the Minister") to refuse the appellant, as I shall describe him, a protection visa. The primary Judge seems not to have delivered any recorded reasons for judgment. However, it is evident from the Court file that the appellant did not appear at the time his application was set down for hearing.

4 Since the orders made by the primary Judge are interlocutory, leave is required to appeal from the decision. This follows from s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth). Mr Smith, who appeared on behalf of the Minister, made no objection to the purported notice of appeal being treated as an application for leave to appeal.

5 The power of the Court under FCR, O 32 r 2(1)(c) to dismiss proceedings by reason of the non-appearance of an applicant is discretionary. In order for the appellant to succeed on the appeal, should leave be granted, it would be necessary for him to show that the primary Judge erred in the exercise of his discretion. The appellant's notice of appeal does not identify any such error. Indeed the sole ground of appeal is said to be that the appellant is waiting for documents from Pakistan to support his application for a visa.

6 The appellant today declined the presiding Judge's invitation to make oral submissions in support of the appeal. Accordingly no explanation for the appellant's failure to appear at the hearing has been provided.

7 I should add that there is nothing in the material before the Court today, or that was before the primary Judge, to indicate that the appellant had any basis upon which to seek judicial review of the RRT's decision. The appellant's case was that he had fled Pakistan in fear of his life because of his political role as a supporter of the Pakistan People's Party ("PPP").

8 The RRT found that the appellant had been, "vague and evasive" when asked about the aims and philosophies of the PPP. It concluded that the appellant was not a credible witness. The RRT rejected his claim that he had been involved with the PPP in Pakistan, and also rejected his claim to be at risk of persecution if he were to return to that country. The RRT further found that even if it had accepted the appellant's account, "normal" PPP members were not at risk of persecution in Pakistan by reason of their political beliefs or activities.

9 The appellant has not applied pursuant to FCR O 32 r 2(2) to set aside the orders that were made in his absence. That course is still open, although we have not seen anything to suggest that any such application would be successful.

10 The appellant has not shown that he has reasonable prospects of success should leave to appeal be granted. Nor has he given any acceptable explanation for his failure to appear at the hearing. In these circumstances, treating his notice of appeal as an application for leave to appeal, his application for leave to appeal should be refused.

WHITLAM J:

11 I agree with the reasons given by Sackville J.

CONTI J:

12 I also agree.

WHITLAM J:

13 Accordingly, the orders of the Court are that the notice of appeal be treated as an application for leave to appeal, the application for leave to appeal be dismissed and the appellant pay the Minister's costs of the application for leave to appeal.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Whitlam, Sackville & Conti JJ.

Associate:

Dated: 27 November 2002

The Appellant appeared in person.
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	27 November 2002
Date of Judgment:	27 November 2002