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MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether the applicant has a well-founded fear of persecution - no appearance at hearing - refusal of adjournment.

NACA v Minister for Immigration [2003] FMCA 125 (4 April 2003)

NACA v Minister for Immigration [2003] FMCA 125 (4 April 2003)
Last Updated: 17 April 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NACA v MINISTER FOR IMMIGRATION
[2003] FMCA 125



MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether the applicant has a well-founded fear of persecution - no appearance at hearing - refusal of adjournment.



Applicant:
NACA



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1233 of 2002



Delivered on:


4 April 2003



Delivered at:


Sydney



Hearing date:


4 April 2003



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


No appearance



Counsel for the Respondent:


Mr J Smith



Solicitors for the Respondent:


Clayton Utz



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $3,500.00 pursuant to the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1233 of 2002

NACA


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This application by a national of India was originally made to the Federal Court on 11 October 2002. The application form says under the details of the claim, "see attached claims" and everything else in the form is crossed out. So far as I am aware from the papers that are filed in the court there is no attached claim. On the other hand there is an affidavit advising that the applicant did not accept the reasons given by the RRT and making a number of other comments of a factual nature. In accordance with the usual practice of the Federal Court the matter was called on for directions and the applicant attended. Consent orders were signed. The applicant did not comply with those orders which required him to file and serve any amended application and any evidence upon which he proposed to rely on or before 12 December 2002.

2. The applicant was granted legal assistance pursuant to the Minister's scheme. The matter was then referred to this court by Madgwick J and the applicant was advised by letter of the date of the hearing. He has not attended. A telephone call has been made to him. He did not respond but a person answered the telephone and advised my associate that the applicant had gone out and that as far as she was aware he believed that the hearing was to take place on 9 April 2003. The applicant was advised at the directions hearing of the hearing date even though, at that time, the matter had not officially been transferred to this Court.

3. The respondent resists any adjournment of the matter. He argues that it is the applicant's responsibility to attend at the appointed time and to comply with the orders of the Court. He further argues that I should take into consideration the merits of the case. I accept all these matters are appropriate for consideration by me when considering whether to force upon the respondent an adjournment that the applicant has not requested personally, and upon the date to which the matter may be adjourned, there is no guarantee he will attend.

4. I have read the reasons for the decision of the Refugee Review Tribunal. They are contained in 11 pages. They indicate that the Tribunal did not believe the applicant's story which he put forward as supporting his well-founded fear of persecution for convention reasons. In particular, the Tribunal did not believe the applicant's story concerning him being shot in the arm, nor his story concerning his activities whilst working for an organisation known as the LITDS, which was being run by the Jesuits in India at the time. But this is not the usual case where the Tribunal's disbelief comes from consideration of country information or documents.

5. In relation to the injury to the applicant's arm, there is evidence from doctors that it was an injury caused to the applicant in childhood. In relation to the situation at LITDS, the Tribunal sought evidence from Father Peter Daniel SJ, which did not corroborate the applicant's story.

6. The applicant has provided no grounds of review. It would appear that he is merely suggesting that the Tribunal was wrong to disbelieve him. This, of course, is not a jurisdictional error.

7. In all the circumstances, I do not believe it is appropriate to grant the applicant an adjournment. The best course of action to take is to dismiss this matter pursuant to Order 32 rule 2 of the Federal Court Rules. The applicant will have an opportunity, if he wishes, to make an application to restore the matter. He will have to file an affidavit explaining why he was not in attendance, and I would order him to comply with the original orders of the Registrar concerning the filing of an amended application, and an affidavit upon which he intends to rely, so that all those things can be considered if the application under Order 32 is made.

8. I order that the applicant pay the respondent's costs, which I assess in the sum of $3,500.00 pursuant to Part 21 Rule 21.O2 (2)(a) of the Federal Magistrate Court Rules.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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