Applicant NAGS of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 444 (13 December 2002)

Last Updated: 28 January 2003

FEDERAL COURT OF AUSTRALIA

Applicant NAGS of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 444

MIGRATION - application for protection visa refused - application to obtain review of the decision of the Refugee Review Tribunal dismissed - failure by applicant to appear at hearing before the primary judge - application for leave to appeal - no error of law - application refused

APPLICANT NAGS OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N821 of 2002

BLACK CJ, MADGWICK & ALLSOP JJ

13 DECEMBER 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N821 OF 2002

BETWEEN:	APPLICANT NAGS of 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BLACK CJ, MADGWICK and ALLSOP JJ
DATE OF ORDER:	13 DECEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal is refused with costs to be assessed on an indemnity basis.

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	N821 OF 2002

BETWEEN:	APPLICANT NAGS of 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BLACK CJ, MADGWICK and ALLSOP JJ
DATE:	13 DECEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(revised from transcript)

THE COURT:

1 The Court is in a position to deliver judgment in this matter. This is a purported appeal from a decision of Emmett J given on 19 July 2002 by which his Honour dismissed, pursuant to O 32 r 2(1)(c) of the Federal Court Rules ("the Rules"), an application for review of a decision of the Refugee Review Tribunal ("RRT") adverse to the would be appellant who is not present and, of course, not represented. It is convenient to treat the matter, we think, as an application for leave to appeal.

2 The applicant is a citizen of Bangladesh. He arrived in Australia on 15 September 1999 and lodged an application for a protection visa on 25 October of that year. In his application for a protection visa, the applicant complained that he feared persecution from members of the then ruling party in Bangladesh as he was a supporter of a prominent politician in the Bangladesh National Party ("BNP"). The application was refused by a delegate of the respondent Minister on 26 November 1999, and the decision to refuse to grant the applicant a protection visa was affirmed by the RRT on 5 March 2002.

3 Having filed an application for judicial review in this Court on 23 April 2002, the matter was listed for hearing before the learned primary judge on 19 July 2002. The applicant did not appear at the hearing. The reasons of Emmett J note that counsel for the respondent Minister had indicated to the Court that those instructing him had received a telephone call from a person claiming to be a flatmate of the applicant, who said that the applicant would not be appearing because of illness. There was no actual application to the Court for an adjournment.

4 In the circumstances, counsel for the respondent sought an order dismissing the proceedings under O 32 r 2(1)(c) of the Rules. Emmett J, having considered all of the relevant material, concluded that there was nothing to indicate that there was any substance to the application, and so, it was appropriate to make that order. Accordingly the proceedings were dismissed and the respondent was directed to draw to the attention of the applicant the provisions of O 32 r 2(2) and O 35 r 7(2)(a) of the Rules, which relate to provisions for the setting aside of a judgment in circumstances where the order has been in the absence of a party.

5 The applicant filed a purported notice of appeal on 8 August 2002 seeking to set aside the decision of Emmett J on the following grounds:

"1. The trial judge erred in failing to consider the material facts of the case.

2. The Honourable trial judge erred in considering the natural justice, which the Tribunal failed to consider it. The Honourable trial judge was entitled to considerer (sic) the natural justice and also empowered to consider any error occurred by the Tribunal under 39(B) of the Judiciary Act.

3. The Honourable trial judge also failed to consider the strong possibility of he applicant's persecution upon returning to Bangladesh.

4. The applicant was ill at the date of the hearing, which he informed, to the responded (sic) and the responded (sic) did not informed (sic) the Court.

5. The applicant will face persecution at the hands of his own party men if he returns to his country of origin."

6 The orders sought by the applicant are that the orders of the primary judge be set aside and the matter remitted to the RRT for determination. Counsel for the respondent, in written submissions, has submitted that the applicant ought to have made an application to the primary judge to have the orders set aside pursuant to O 32 r 2(2), and O 35 r 7(2)(a) of the Rules.

7 The question of an adjournment was a discretionary one for the learned primary judge. Whilst there was a communication from a third party on the applicant's behalf to the respondent's solicitors, there was no material such as a medical certificate or any communication, either written or oral, from the applicant seeking an adjournment or explaining the reasons why there should be such an adjournment. Further, his Honour was aware that the applicant had failed to give oral evidence before the RRT. It is not arguable that his Honour erred in the exercise of his discretion in any way relevant to the exercise of the powers of an appellate court. We also note that since that date the applicant has failed to provide any material to explain or establish that he was too ill to attend the hearing.

8 Like the learned primary judge, we have read the reasons of the RRT and discern no remediable legal error in its findings and reasons. The RRT was not satisfied on the evidence before it that the applicant's fear was a well-founded fear of persecution within the meaning of the convention. The RRT had invited the applicant to attend and give oral evidence, as the RRT was "unable to make a favourable decision" on the information provided. The applicant initially indicated he would attend, but later declined this opportunity and requested the RRT to make a decision on the papers.

9 In his findings and reasons, the RRT Member noted that the BNP had won a significant number of seats in the recent elections, and now formed part of the government. The Member was not satisfied that the applicant's claim, that he could not be protected from serious harm, could be sustained following the change in government. Instead, as a member of the BNP, with strong connections to political figures in that party, the RRT Member found that the applicant would enjoy a favoured position in regards to protection from any potential persecutor, and that the State would not condone or be complicit in any harm in regards to him. Nor was the RRT satisfied that the applicant would face harm at the hands of a faction within the BNP, as claimed by the applicant, on the basis that it was an unsupported assertion, and independent material before the RRT indicated that the politician that the applicant supported was in Cabinet, and held a significant position. This led the RRT to conclude that, if there was a division within the party, it was not significant and the RRT Member was not satisfied that he would face any harm as claimed.

10 Thus, there is no substance to the purported appeal, and any leave to appeal would be futile. Accordingly, the application for leave to appeal is refused with costs.

11 As to costs, the respondent has sought costs on an indemnity basis, pointing to all the circumstances of the case, but, particularly, the conduct of the applicant in simply not appearing. Today, the applicant has again failed to appear. It is plain that the applicant is not here. The matter is being heard well past the announced time. This is apparently, therefore, another instance of the applicant's failure to appear, having instituted proceedings that the Court has had to deal with, including to make arrangements for an interpreter, and most relevantly, that the Minister has had to brief counsel for. In these circumstances, the Court proposes to take the unusual course of ordering costs on an indemnity basis.

12 The order of the Court therefore is that the application for leave to appeal be refused with costs to be assessed on an indemnity basis.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court.

Associate:

Dated: 23 January 2003

No appearance by the applicant.
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	13 December 2002
Date of Judgment:	13 December 2002