NAFP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 360

FEDERAL COURT OF AUSTRALIA

NAFP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 360

MIGRATION – application by Bangladeshi national for review of decision of RRT to refuse protection visa – judge at first instance summarily dismissed application for review pursuant to O 10 r 3(1) due to non-attendance at directions hearing – appeal to Full Court – appeal treated as application for leave – leave to appeal refused – no ground for review of RRT decision available in any event.

Migration Act 1958 (Cth) s 474 Judiciary Act 1903 (Cth) s 39B Federal Court Rules O 10 r 3(1), O 32 r 2(1)(c), O 35 r 7

NAET of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 304 followed NAFP OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 607 OF 2002 MADGWICK, EMMETT & CONTI JJ 6 NOVEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 607 OF 2002

BETWEEN: NAFP OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK, EMMETT & CONTI JJ

DATE OF ORDER: 6 NOVEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The notice of appeal be treated as an application for leave to appeal. 2. The application for leave to appeal be dismissed. 3. The applicant 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

NEW SOUTH WALES DISTRICT REGISTRY N 607 OF 2002

BETWEEN: NAFP OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK, EMMETT & CONTI JJ

DATE: 6 NOVEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT MADGWICK J: 1 I agree with the order proposed by Conti J and generally with his Honour's reasons. It seems to me too that, even taking the most expansive view of any legal error that one might be able to conjure up in the approach of the Refugee Review Tribunal ("the Tribunal"), there is nothing which could surmount the very high hurdle constituted by s 474 of the Migration Act 1958 (Cth). 2 I should also record that the applicant chose, after many opportunities had been extended to him, not to put any evidence before the Court as to why he had failed to attend the directions hearing before Whitlam J on 7 June 2002. 3 I observe from the papers in the appeal book that the applicant filed his original application to the Court himself on 15 April 2002 and succeeded in persuading the Registrar that the fee for such application should be waived. A Court Officer inscribed in the application at the relevant place that the time and date for hearing was: "9.30 am, Friday 7th June 2002." 4 It is the practice of officers of the Federal Court Registry to bring such dates firmly to the attention of litigants in person. If that were not enough, the solicitor for the respondent, took the wise precaution on 14 May 2002 of writing to the applicant and having posted on 15 May 2002 a letter which advised him: "Your case is before the Court on 7 June 2002 at 9.30 am and it is important that you go to Court at that time." 5 Finally, on 11 June 2002 a solicitor in the employ of the solicitors for the respondent advised the applicant orally, in answer to his claim that he was confused about the date and had not realised he had needed to be before the Court on 7 June 2002, that he should: "contact the Court to discuss as the [Court] has the power to set aside orders in certain circumstances, but that he needs to discuss this [with the Court]." 6 In my opinion nothing has been shown to indicate that Whitlam J erred nor has any other acceptable circumstance been suggested which would indicate that there is any injustice in permitting the order made by Whitlam J to stand. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.