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MIGRATION - Protection visa - application to set aside decision of the RRT - no appearance by applicant - application dismissed.

NAOO v Minister for Immigration [2002] FMCA 276 (1 November 2002)

NAOO v Minister for Immigration [2002] FMCA 276 (1 November 2002)
Last Updated: 11 November 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAOO v MINISTER FOR IMMIGRATION
[2002] FMCA 276



MIGRATION - Protection visa - application to set aside decision of the RRT - no appearance by applicant - application dismissed.



NALG v Minister for Immigration [2002] FCMA 258

NAAV v Minister for Immigration [2002] FCAFC 228

Migration Act (Cth) 1958, s.474

Applicant:
NAOO



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ764 of 2002



Delivered on:


1st November 2002



Delivered at:


Sydney



Hearing Date:


1st November 2002



Judgment of:


Raphael FM



REPRESENTATION

Solicitors for the Applicant:


Mr Ejaz Khan of Ward Maxwell & Co Solicitors ceased to act 29th October 2002



Counsel for the Respondent:


Mr J Smith



Solicitors for the Respondent:


Mr Michael Snell of Sparke Helmore Solicitors



ORDERS

(1) Application dismissed pursuant to Federal Court Rules, order 32,

rule 2(1)(c).

(2) Applicant to pay the respondent's costs assessed in accordance with Part 2, rule 21.02(2)(a) of the Federal Magistrates Court Rules in the sum of $4000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ764 of 2002

NAOO


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 16 September 2000. On 13 October 2000, he lodged an application for a protection (class XA) visa with the Department of Immigration. As he was immigration cleared, he was entitled to consideration for a visa under subclass 866 (protection). On

6 December 2000, the delegate of the Minister refused to grant a protection visa, and on 3 January 2001 the applicant applied for review of that decision. The review was completed by the Refugee Review Tribunal on 28 May 2002 and the decision was handed down on

19 June 2002. The applicant then sought review of that decision, originally in the Federal Court of Australia. On the 26 August 2002, Stone J referred the matter to this court.

2. The applicant's originating application asked that the decision of the Tribunal be set aside, but it did not provide any grounds for such an order. In the affidavit accompanying the document the applicant said that he was aggrieved by the Tribunal's decision and that the Tribunal had failed to act on proper principles of fairness and natural justice, failed to take into consideration the merits of the case and the Tribunal did not act in good faith to make the decision.

3. The first two grounds of appeal are no longer available to the applicant since the insertion into the Migration Act of s.474 and the decision of the Full Bench of the Federal Court in NAAV v The Minister of Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228. Although the third ground is still available, there is considerable authority to the effect that such an allegation must be clearly made and properly proved. No documentation that would assist in this endeavour has found its way to the file.

4. The applicant was originally represented by a solicitor, Mr Khan, of Messrs Ward Maxwell and Co. On 29 October 2002, Mr Khan filed a notice of ceasing to act and the appropriate affidavit in support thereof. Mr Khan not only did that, but he had the courtesy to attend the court this morning and inform me that the applicant had attended his office at approximately 5pm on 31 October 2002, collected his papers and advised Mr Khan that someone would represent him this morning. No one has attended this morning and the applicant's name was called outside the court without him appearing.

5. I have considered the decision of the Tribunal and submissions made by the solicitors for the respondent and it is my view that the contentions made by the applicant in the only documents which are before me would indicate that he is seeking to have the court substitute its view as to the material before the Tribunal for that of the Tribunal itself. This, of course, the court cannot do.

6. In NALG v The Minister for Immigration [2002] FCMA 258, I dealt with a case in which the applicant did not appear, I noted the deficiency in the Federal Magistrates Court Rules and made orders dismissing the proceedings pursuant to Federal Court Rules, order 32, rule 2(1)(c). I propose to take the same course in this case, I dismiss the application.

7. I order that the applicant pay the respondent's costs which I assess in accordance with Part 21, rule 21.02(2)(a) of the Federal Magistrates Courts Rules in the sum of $4000.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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