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1 I agree with Madgwick J that the appeal should be dismissed and with the orders that his Honour proposes.

2 The grounds of appeal of the appellant incorporate grounds two, four and five which were dealt with by the learned primary judge in his judgment. In addition, however, as Madgwick J points out, the appellant, in the grounds of appeal, says that the learned primary judge ignored the merits of his case, did not act in good faith and deprived him of natural justice. These are all very significant and serious allegations and not to be made lightly, yet they were neither particularised by the appellant in the grounds of appeal nor were they pursued at all when the appellant addressed us.

NARS v Minister for Immigration & Multicultural & Indigenous Affairs [2003]

NARS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 287 (16 December 2003)
Last Updated: 16 December 2003


FEDERAL COURT OF AUSTRALIA
NARS v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 287


NARS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1525 of 2003

HILL, MADGWICK & CONTI JJ

2 DECEMBER 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N1525 of 2003




BETWEEN:
NARS

APPLICANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
HILL, MADGWICK & CONTI JJ


DATE OF ORDER:
2 DECEMBER 2003


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. The appeal be dismissed.

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
N1525 of 2003




BETWEEN:
NARS

APPLICANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
HILL, MADGWICK & CONTI JJ


DATE:
2 DECEMBER 2003


PLACE:
SYDNEY





REASONS FOR JUDGMENT
(revised from transcript)

HILL J:

1 I agree with Madgwick J that the appeal should be dismissed and with the orders that his Honour proposes.

2 The grounds of appeal of the appellant incorporate grounds two, four and five which were dealt with by the learned primary judge in his judgment. In addition, however, as Madgwick J points out, the appellant, in the grounds of appeal, says that the learned primary judge ignored the merits of his case, did not act in good faith and deprived him of natural justice. These are all very significant and serious allegations and not to be made lightly, yet they were neither particularised by the appellant in the grounds of appeal nor were they pursued at all when the appellant addressed us.

3 The orders of the Court will accordingly be that the appeal be dismissed and that the appellant pay the respondent's costs of the appeal.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.




Associate:

Dated: 12 December 2003

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N1525 of 2003




BETWEEN:
NARS

APPLICANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
HILL, MADGWICK & CONTI JJ


DATE:
2 DECEMBER 2003


PLACE:
SYDNEY





REASONS FOR JUDGMENT
(revised from transcript)

MADGWICK J:

4 This is an appeal against a decision of Beaumont J given on 19 September 2003 whereby his Honour dismissed an application for judicial review of a decision of Refugee Review Tribunal ("the Tribunal") which was handed down on 22 May 2003. The Tribunal rejected an application for review by the appellant against a decision by a delegate of the respondent Minister to refuse the appellant's application for a protection visa. The appellant was unrepresented before the learned primary judge and is unrepresented before us.

5 The appellant, it appears, is a national of Bangladesh. He claimed to fear harm there from members of the political party or movement known as the Awami League, for reasons of political opinion on account of his activities as a supporter of the Bangladesh National Party (`BNP'). When the appellant lodged his application for review by the Tribunal he informed the Tribunal that he would at a later time provide a submission to the Tribunal. He never did so. The Tribunal informed the appellant in writing that it could not make a decision in his favour on the papers available to it from the respondent's department and, in accordance with ordinary practice and the requirements of the legislation, invited him in those circumstances to attend. The appellant informed the Tribunal that he wished to attend the hearing, however, he did not appear at the appointed time. He provided the Tribunal with no explanation for this nor, indeed, did the Tribunal receive any further communication from him. In his absence the Tribunal proceeded to deal with his application.

6 The Tribunal rejected his factual claims on the basis that they could not be accepted. Among other things, the Tribunal Member relied on the appellant's failure to provide the promised material or to attend to address the reasons why the Tribunal was unable to decide in his favour on the papers.

7 As a quite independent ground, however, the Tribunal Member considered that, as there had been a change of circumstances in Bangladesh, namely the election of BNP members of parliament as the national government, as a BNP supporter the appellant could expect government protection if he ever had been at risk from the Awami League or supporters of it.

8 The learned primary judge traversed the grounds stated in the application to the Court for judicial review and found that either they could not constitute a basis for judicial review or that there was no substance in them. On their face, the reasons for decision of the Tribunal and his Honour's judgment are unexceptionable, indeed, in the latter case inevitable.

9 The Notice of Appeal makes a number of quasi legal assertions. The primary judge is accused of failing to act in good faith and of denying the appellant natural justice. It is further said that the Tribunal denied the appellant natural justice, that unspecified procedures required by the relevant legislation were not observed and that the decisions of both the primary judge and the Tribunal involved an error of law, unspecified.

10 Before this Court, the presiding judge clearly explained to the appellant with the aid of a competent interpreter that this was an appeal against the decision of the primary judge; the merits of the Tribunal's approach to factual matters were not a matter for this Court, nor had they been a matter for the primary judge and it was for the appellant to indicate to the Court in what way the primary judge was wrong in his conclusions that there had been no relevant error of law by the Tribunal.

11 The appellant contented himself with a few sentences entirely confined to factual matters that might possibly, had he bothered to attend before the Tribunal, have influenced that body. They are quite irrelevant to this appeal.

12 There is no substance in any of the grounds in the Notice of Appeal. The first accusation that the judge failed to act in good faith is a serious one and should never have been made.

13 The entire conduct of the matter, both before the Tribunal and before this Court suggests that the proceedings have been but a solemn farce intended only to secure the appellant's presence in Australia for a longer period than was apparently justified. It is difficult to know what to do about such cases, which are increasingly common. In my view, this Court does no more important work than to deal with the cases of people who genuinely claim to be refugees within the meaning of the relevant Convention. In such cases, to adopt a phrase used by Toohey J, in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 407, "human fate" itself is at stake. The prevalence of worthless appeals, of which this is an example, however, tends to de-value the importance of that other cases, the importance of that kind of work and suggests to the uninformed that the Court is in some way a party to what it is not unfair to call a racket, whereby considerable numbers of people are without warrant, staying in Australia almost certainly for the purpose of obtaining work to which they are not entitled.

14 The importance of the genuine cases, however, operates as a signal barrier against draconian measures being introduced by the Court itself to the extent that it could or at its behest. These matters are presently the subject of consideration by an advisory committee to the relevant Minister and it is inappropriate that I should say more. But I should not let the occasion pass without it being made clear that the Court is aware of the pattern that is emerging and views the matter with concern and displeasure.

15 In my opinion the appeal should be dismissed with costs.


I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.




Associate:

Dated: 12 December 2003

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N1525 of 2003




BETWEEN:
NARS

APPLICANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
HILL, MADGWICK & CONTI JJ


DATE:
2 DECEMBER 2003


PLACE:
SYDNEY





REASONS FOR JUDGMENT
(revised from transcript)

CONTI J:

16 I agree with what has been said by Hill and Madgwick JJ. I also agree with the orders they propose.

I certify that the preceding paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.




Associate:

Dated: 12 December 2003

The applicant appeared in person.







Solicitor for the Respondent:
Sparke Helmore






Date of Hearing:
2 December 2003






Date of Judgment:
2 December 2003


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