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MIGRATION - Protection visa - no appearance by applicant - dismissal of proceedings under Federal Court Rules.

NAQC v Minister for Immigration [2002] FMCA 302 (18 November 2002)

NAQC v Minister for Immigration [2002] FMCA 302 (18 November 2002)
Last Updated: 28 November 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAQC v MINISTER FOR IMMIGRATION
[2002] FMCA 302



MIGRATION - Protection visa - no appearance by applicant - dismissal of proceedings under Federal Court Rules.



Migration Act 1958 (Cth)

Federal Magistrate's Court Rules Part 1 r 1.05(2)

Federal Court Rules O 32 R 2(i)(c)

NALG v Minister for Immigration [2002] FMCA 258

Applicant:
NAQC



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 768 of 2002



Delivered on:


18 November 2002



Delivered at:


Sydney



Hearing Date:


18 November 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


No appearance



Counsel for the Respondent:


Mr T Reilly



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 768 of 2002

NAQC


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter is a citizen of Fiji of Indian descent and Muslim religion. He arrived in Australia on 11 August 2001 and on 5 September 2001 he lodged an application for a Protection (Class XA) visa with the Department of Immigration & Multicultural Affairs under the Migration Act 1958.

2. On 25 October 2001 a delegate of the Minister refused to grant a protection visa and on 20 November 2001 the applicant applied for a review of that decision. The review was carried out and concluded on 11 June 2002 when a decision was made. It was handed down on 5 July 2002. It is against that decision that this application for review has been made.

3. In its very short decision the Tribunal accepted the evidence given by the applicant and her witness that she had subjectively a genuine fear of persecution for reasons of her Indian ethnicity and her adherence to the Muslim faith. The Tribunal accepted that the applicant had been threatened with rape on occasions in the past. There was also an incident with the police concerning complaints made to them about crimes allegedly committed by indigenous Fijians against her approximately two years ago.

4. The Tribunal in its decision considered the relevant country information as at the date of the hearing and came to the view that security in Fiji was capable of providing protection for Indo-Fijians such as the applicant. The Tribunal found that the applicant did not have a real chance of being persecuted by indigenous Fijians because of her Indian ethnicity or her adherence to the Muslim faith. It found that the applicant did not have a well-founded fear of being persecuted by indigenous Fijians for reasons of race or religion.

5. I do note that in the court book and the papers before me there does not appear to have been any consideration by the Tribunal as to whether the applicant fell into a slightly different category than that considered. ie a young single woman of Indian ethnicity and Muslim religion, but as the applicant is not here today and the matter was not raised specifically at the Tribunal, or in the notice of appeal, this is not a matter which I should comment upon further.

6. The application for review before me was set down for hearing at 10.15 am on 18 November 2002. The applicant had not arrived by 10.30 am. Her name was then called outside the court and she has not appeared.

7. In NALG v Minister for Immigration, [2002] FMCA 258, I noted that the Federal Magistrates Court rules in relation to the dismissal of cases where no applicant appears are deficient. Part 1 rule 1.05(2) of the Federal Magistrates Court rules allows the court, where it considers that the rules are insufficient or inappropriate, to apply the Federal Court Rules. In that case and in this I propose to apply Federal Court rule Order 32 rule 2(i)(c) and dismiss the application.

8. The respondent has asked for its costs. These should be given to it, however, I am not prepared to assess the costs in the figure of $4600 claimed by the applicant. I believe appropriate costs in this case, which involves a court book of only 71 pages and essentially a very simple point, should be limited to $3,500.00.

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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