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MIGRATION - Application for protection visa - applicant not present at hearing - Tribunal decision based on lack of credibility of applicant - application dismissed.

NAJX v Minister for Immigration [2002] FMCA 298 (20 November 2002)

NAJX v Minister for Immigration [2002] FMCA 298 (20 November 2002)
Last Updated: 13 December 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAJX v MINISTER FOR IMMIGRATION
[2002] FMCA 298



MIGRATION - Application for protection visa - applicant not present at hearing - Tribunal decision based on lack of credibility of applicant - application dismissed.



Migration Act 1958 (Cth)

Federal Court Rules, O 32 r1(c)

Minister for Immigration; ex parte Durairajasingham (1999) 168 ALR 407

Applicant:
NAJX



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 729 of 2002



Delivered on:


20 November 2002



Delivered at:


Sydney



Hearing Date:


20 November 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


No appearance



Counsel for the Respondent:


Mr J Smith



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs in the sum of $3,500.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 729 of 2002

NAJX


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter is an Indian citizen who arrived in Australia on 2 October 2000. On 3 October 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958. The delegate of the Minister considered that application and on 24 November 2000 refused to grant a protection visa.

2. On 14 December 2000 the applicant applied for a review of that decision. The review was carried out by the Refugee Review Tribunal. A decision was made on 11 April 2002 and handed down on 7 May 2002. The decision of the tribunal was to uphold the decision of the delegate. It is against that decision that the applicant applies to this court for judicial review.

3. In his application the applicant gave six grounds for proceeding. He alleged that the tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction. The grounds also noted that the applicant was entitled to a protection visa and that he had a well founded fear of persecution in India.

4. The tribunal's findings and reasons for upholding the decision of the delegate were essentially that it did not believe the applicant. It was particularly concerned that a letter provided by the applicant and found at CB [31-32] was identical to a statutory declaration made by the applicant and found at CB [15-17]. As McHugh J said in the Minister for Immigration: ex parte Durairajasingham (1999) 168 ALR 407:

" [67] ... however, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence."

5. When this matter came before me for hearing there was no appearance on the part of the applicant. His name was called outside the court but he did not appear. The respondent has asked that the claim be dismissed pursuant to Order 32 rule 1(c) of the Federal Court rules. This is an approach I have adopted in previous cases and which I will adopt here. I dismiss the application and I assess the costs of the respondent pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court rules in the sum of $3,500.00.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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