NAGT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 149 (7 February 2003)

Last Updated: 10 March 2003

FEDERAL COURT OF AUSTRALIA

NAGT v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 149

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

Migration Act 1958 (Cth) s 91R

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

NAGT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1406 OF 2002

EMMETT J

7 FEBRUARY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1406 OF 2002

BETWEEN:	NAGT 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 O10 r 3(2);

(2) the Applicant pay the Respondent's costs;

(3) the Respondent inform the Applicant in writing as soon as practicable of the terms of these 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	N1406 OF 2002

BETWEEN:	NAGT 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, having arrived in Australia with her husband and two daughters on 29 August 2001. On 31 August 2001, they lodged an application for protection (class XA) visas. On 6 November 2001, a delegate of the Respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), refused to grant protection visas. On 10 December 2001, applications were lodged for a review of that decision by the Refugee Review Tribunal ("the Tribunal"). On 31 October 2002, the Tribunal affirmed the decision not to grant protection visas.

2 On 23 December 2002, the Applicant lodged an application in this Court seeking review of the decision of the Tribunal. The application asserts that the decision involved an error of law and that the Tribunal acted outside its jurisdiction. The application also says that more information would be provided at a later stage. An affidavit filed in support of the application discloses no further grounds of review.

3 When the matter was called on for directions this morning there was no appearance for the Applicant. The Minister, therefore, sought an order for dismissal of the application pursuant to O 10 r 3(2) of the Federal Court Rules which provides that if no applicant appears before the Court on a directions hearing the Court may dismiss the application.

4 I have considered the reasons of the Tribunal. The Applicant, her husband and two daughters are ethnic Fijians, the daughters having been born in 1991 and 1999 respectively. Only the Applicant made claims under the Refugees Convention, the rest of the family relying on their membership of her family. The Applicant claimed that when she and her family left Fiji there was tension due to the election at that time. She and her family claimed that there was political upheaval and instability in Fiji and that they feared for their lives. In answer to a question in the application for visa form, "Who do you think may harm or mistreat you if you go back?", the Applicant said:

"Members of my own community and also from the indigenous community."

She said that that would happen because there is a lot of distrust among the people.

5 The reasons of the Tribunal record that the Applicant was asked what threats she had received and that she responded that she had received threats because she used to work in the DPP's office. She said that the threats were phone threats. The Applicant also said that, because her husband is a schoolteacher, parents of students used to threaten him. No other details as to the nature of the threats were provided. The Tribunal in its findings noted that the phone calls taken by the Applicant and her husband were the extent of any intimidation or harm alleged. The Tribunal recorded that the Applicant had provided no details as to the nature of the phone threats and that there was no claim relating to physical abuse.

6 The Tribunal also referred to independent evidence which the Tribunal considered showed that the present law and order situation in Fiji is stable except for some isolated, minor harassment. The Tribunal found that the threats, including phone calls, did not constitute a harm amounting to persecution. The Tribunal accepted the Applicant's claims concerning animosity, distrust, ridicule, jealousy and ill-will by some members of the indigenous community and that her family may be excluded from a form of inheritance. However, the Tribunal found that those claims did not support a finding of persecution, as they did not involve serious harm to the person as required by s 91R of the Migration Act 1958 (Cth).

7 The Tribunal ultimately was not satisfied from the evidence before it that there was a real chance, in the future, of the Applicant being selected or targeted for persecution for reasons of race, religion or any other Convention reason. There is nothing on the face of the reasons to suggest any error on the part of the Tribunal. There is no evidence to suggest that there was any impropriety in the conduct of the hearing or the making of the decision.

8 In the circumstances I consider that it is appropriate to make an order under O 10 r 3. I will also order the Respondent to inform the applicant in writing as soon as practicable of the terms of these orders and of the terms of O 35 r 7(2)(a).

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:	Blake Dawson Waldron
Date of Hearing:	7 February 2003
Date of Judgment:	7 February 2003