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MIGRATION - judicial review - appeal - no appearance of appellant at hearing of appeal - appeal heard and determined in absentia - no merit in appeal

AAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

AAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 212 (4 August 2004)
Last Updated: 20 August 2004

FEDERAL COURT OF AUSTRALIA


AAAD v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 212



MIGRATION - judicial review - appeal - no appearance of appellant at hearing of appeal - appeal heard and determined in absentia - no merit in appeal



Migration Act 1958 (Cth)



Federal Court Rules O 52 r 38A(2)




AAAD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
ACD5 of 2004







FRENCH, SACKVILLE and CONTI JJ
4 AUGUST 2004
CANBERRA



IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY ACD5 OF 2004


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: AAAD
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: FRENCH, SACKVILLE and CONTI JJ
DATE OF ORDER: 4 AUGUST 2004
WHERE MADE: CANBERRA


THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent�s costs.


Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.



IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY ACD5 OF 2004


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: AAAD
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: FRENCH, SACKVILLE and CONTI JJ
DATE: 4 AUGUST 2004
PLACE: CANBERRA


REASONS FOR JUDGMENT

THE COURT:

1 This is the hearing of an appeal against a judgment of Gyles J given on 17 February 2004 � Applicant AAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 194. In that judgment his Honour dismissed an application by the appellant for prerogative relief in relation to a decision of the Refugee Review Tribunal (�the Tribunal�) made on 30 May 2003 affirming a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant a protection visa. The appeal came on for hearing today but the appellant did not appear.

2 The appellant is a citizen of Pakistan who arrived in Australia on 9 April 2002 and who lodged an application for a protection visa on 23 May 2002. That application was refused on 6 August 2002 and on 29 August 2002 the appellant applied to the Tribunal for review of that decision. In its findings, the Tribunal summarised the appellant's claims by saying that he claimed to fear arrest and torture by authorities on his return to Pakistan because of his political opinion, that is, his former involvement in the Muslim League of that country.

3 The Tribunal did not accept that the appellant was an active or significant member of the Muslim League or that as a consequence he faced harm from Pakistani authorities on his return to Pakistan. It based that finding in part upon the appellant's vagueness, uncertainty and lack of information about the Muslim League, and it said:

�The Applicant's scant knowledge of the Muslim League and his vagueness and ambiguity as to what role he played in the party lead the Tribunal to reject the Applicant's claim that he was an active member in the Muslim League.�

The Tribunal also referred to country information in relation to the current political situation in Pakistan and the fact that various factions of the Muslim League had contested the October 2002 election and gained seats in the newly formed Parliament. It did not accept that he faced arrest, torture or death on the strength of sympathy for, or membership of, the Muslim League.

4 In the application to this Court at first instance for judicial review, the appellant set out a number of broadly stated grounds, which did not descend into particulars. Gyles J said (at [5]):

�In the present case the reasons of the Tribunal make clear that it simply rejected the account given by the applicant in support of his claim to protection. What is more, the Tribunal member explained why that view was taken in some detail. That judgment as to whether the claims were genuine or not was very much a matter for the Tribunal itself, and absent any failure of natural justice or some other jurisdictional error this Court is not able to intervene and correct any errors it might see in the way in which the Tribunal determined the merits of the case.�

5 The notice of appeal against his Honour's decision contained only one ground, as follows:

�His Honour erred in construing the Migration Act 1958 by upholding the decision of the Refugee Review Tribunal to refuse to grant a Protection Order.�

6 As appears from the recitation already made of the procedural history of this matter, the Tribunal rejected the appellant's claims on their factual merits and on the basis of its view of his credibility. His application for review before Gyles J disclosed no basis by way of jurisdictional error which would justify interference with the Tribunal's decision.

7 The appeal to this Court discloses no basis in the notice of appeal upon which we should interfere with the judgment of Gyles J. The appeal is a hopeless one and should be dismissed. Although it is theoretically open to the appellant under O 52 r 38A(2) of the Federal Court Rules to apply to the Court to set aside or vary an order of dismissal made under r 38A(1)(d), the Court would think that such an application would have very little prospect of success, having regard to the history of this matter, the merits of the appeal that has been brought, and our finding in relation to it. We would therefore dismiss the appeal and order that the appellant pay the costs of the respondent.




I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.



Associate:

Dated: 18 August 2004




The appellant did not appear.



Counsel for the Respondent: Mr R Knowles



Solicitor for the Respondent: Clayton Utz



Date of Hearing: 4 August 2004



Date of Judgment: 4 August 2004
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