NALZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 29

FEDERAL COURT OF AUSTRALIA

NALZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 29 NALZ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS No N 1523 of 2003 FINN, EMMETT AND SELWAY JJ SYDNEY 17 FEBRUARY 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1523 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

OF AUSTRALIA

BETWEEN: NALZ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: FINN, EMMETT AND SELWAY JJ

DATE OF ORDER: 17 FEBRUARY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be stood over to a date to be fixed.

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 1523 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

OF AUSTRALIA

BETWEEN: NALZ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: FINN, EMMETT AND SELWAY JJ

DATE: 17 FEBRUARY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The Court has ordered that this appeal be stood over to a date to be fixed and has referred the appellant to the Registrar under O 80 of the Federal Court Rules. 2 The reason this course has been taken is that it appeared to us on reading the materials that have been filed in the appeal that there may well be an arguable ground of appeal relating to a matter which was not raised before the primary judge but which is suggested by the reasons of the Refugee Review Tribunal. 3 The appellant, an Indian national, is a Tamil. The Tribunal accepted that he had been arrested on two occasions for selling electrical goods to Sri Lankan nationals. He had previously studied electrical engineering and was later engaged as a salesman in an electronics shop at the time of the arrests. 4 In commenting on the arrests, the Tribunal observed: "I am satisfied that the Applicant can avoid further arrests by not selling electrical goods to Sri Lankan nationals. I am not satisfied that it would be unreasonable for him to avoid arrest by so doing." 5 We were concerned that this observation could raise for consideration the principle stated in the decision of the High Court in Applicant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 112: see [50] per McHugh and Kirby JJ; [82] per Gummow and Hayne JJ. That decision post-dates the judgment under appeal. 6 The appellant has not been legally represented in this proceeding. In light of this and because of the possible significance to his case of the principle stated in Applicant S395/2002, we have considered it appropriate to take the course we have. In so doing we express no view on the likelihood of his being granted leave to amend the notice of appeal to raise a new ground or on whether the Tribunal has actually fallen into error. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Finn, Emmett and Selway.