Alok v Minister for Immigration & Multicultural Affairs [2000] FCA 183 (11 February 2000)

Last Updated: 2 March 2000

FEDERAL COURT OF AUSTRALIA

Alok v Minister for Immigration & Multicultural Affairs [2000] FCA 183

MD ALAUDDIN ALOK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 439 OF 1999

LEHANE J

11 FEBRUARY 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 439 OF 1999

BETWEEN:	MD ALAUDDIN ALOK APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LEHANE J
DATE OF ORDER:	11 FEBRUARY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The applicant's motion pursuant to the notice of motion filed on 24 December 1999 is refused.

2. The applicant pay the respondent's costs of the motion.

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 439 OF 1999

BETWEEN:	MD ALAUDDIN ALOK APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LEHANE J
DATE:	11 FEBRUARY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is a motion by which the applicant seeks to set aside orders made by the Court, under O 32 r 2 of the Federal Court Rules, on 4 August 1999.

2 The case is in many ways a very unfortunate one. The applicant, after apparently unsuccessfully making other applications for visas which would have allowed him to remain in this country, applied for a protection visa on the footing that he claimed to be a refugee within the meaning of the Convention. That application was unsuccessful. The applicant then sought review by the Refugee Review Tribunal. By a decision dated 21 April 1999, the Tribunal affirmed the primary decision not to grant a protection visa.

3 The applicant sought review of the Tribunal's decision by the Court under Part VIII of the Migration Act 1958 (Cth). Directions were made in the usual way for the filing of affidavits and submissions, and the matter was set down for hearing on 4 August 1999. The applicant did not file any affidavits, nor did he file submissions.

4 Two days before the date on which the application to the Court was set down for hearing, the applicant filed, with a letter addressed both to the Minister's solicitor and to the Court, a medical certificate which stated that the applicant was unable to attend to his usual activities from 2 August 1999 to 4 August 1999, due to severe abdominal pain and severe headache. Although the applicant was contacted both by the Minister's solicitor and by the associate of the judge assigned to hear the application, and informed that on the material submitted the Court would not necessarily be persuaded to adjourn the hearing, the applicant did not appear on 4 August 1999, nor was any further evidence tendered, nor did anyone else appear on his behalf.

5 It was in those circumstances that, on the application of the Minister, the Court made orders dismissing the application for judicial review, which the applicant now seeks to have set aside. The motion now before the Court was filed only on 24 December 1999: that is, several months after the order of the Court made on 4 August 1999. The applicant has explained the delay today by referring to his lack of understanding of English, his claim to have been unwell for a considerable period, the fact, as he asserts it, that he has moved on several occasions during the intervening period, and the circumstance that he is substantially without funds and accordingly without any professional assistance. There is no admissible evidence before me as to any of those matters, but I shall proceed on the basis that they are correct.

6 If the position were that the applicant had applied promptly, that is within a short time after the orders of the Court made on 4 August 1999, then very little more might have been required in order to persuade the Court that the orders should be set aside. The delay that has occurred, whatever its reasons, does, I think, make a difference, and in any event two factors must, I think, weigh heavily in considering the present application.

7 One, which I think is the less important, is that the directions of the Court made as to the filing of affidavits and, particularly, of submissions, simply were not complied with in circumstances where the medical evidence tendered by the applicant does not suggest that he was unwell before 2 August 1999: after the time, when, according to the directions, submissions ought to have been filed.

8 Of considerably more importance, I think, is the question whether the applicant has, on the material before the Court, an arguable case for review of the decision of the Refugee Review Tribunal. The applicant, who is not legally represented, has been assisted by an interpreter. I have sought to explain to the applicant - and I appreciate that these matters are difficult for any lay person to understand, let alone one who is not proficient in English - the limited powers of the Court on an application for review of a decision of the Tribunal.

9 The essence of the applicant's claim for review, as it appears from his application, and as it has been further explained to me today, is that the Tribunal treated him unfairly by giving him insufficient opportunity to substantiate his claim to be a refugee by obtaining and producing further documents, and that in those circumstances the Tribunal erred in finding, as it did, that the applicant was not a credible witness and that certain documents which he was able to produce were not authentic.

10 I have considered the reasons given by the Tribunal for its decision of 21 April 1999. It is not apparent that the Tribunal committed any error of law and nothing in the application lodged by the applicant, or in the material before the Court, suggests the existence of any other of the limited grounds upon which such a decision may be reviewed under the Migration Act. Particularly, in this Court it is not a ground of review that the Tribunal failed to accord procedural fairness or natural justice to an applicant. Nor is the mere fact that the Tribunal failed to allow an opportunity for the production of further evidence of itself a ground of review.

11 In the circumstances I cannot hold, on the material before the Court, that there is an arguable case to support an order setting aside the decision of the Tribunal on any of the grounds permitted by the Migration Act. In the light of that, and given the delay that has occurred since 4 August 1999, I think the only proper way to exercise my discretion is by refusing the relief sought in the motion. Accordingly, the applicant's motion pursuant to the notice of motion filed on 24 December 1999 is refused.

[The Minister sought an order for costs].

12 I think I should follow the ordinary practice of the Court and order that the applicant pay the Minister's costs of the motion.

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

Associate:

Dated: 28 February 2000

Counsel for the applicant:	The applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 February 2000
Date of Judgment:	11 February 2000