NADI v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 649

FEDERAL COURT OF AUSTRALIA

NADI v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 649

NADI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 154 of 2002 SACKVILLE J SYDNEY 23 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 154 OF 2002

BETWEEN: APPLICANT NADI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 23 MAY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay fifty per cent of 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 154 OF 2002

BETWEEN: APPLICANT NADI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE: 23 MAY 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application seeking review of a decision of the Refugee Review Tribunal ("RRT") handed down on 5 February 2002. The RRT affirmed a decision of a delegate of the respondent ("the Minister") made on 20 October 1999 not to grant the applicant a protection (class AZ) visa.

BACKGROUND 2 The applicant is a citizen of Bangladesh. He arrived in Australia on 24 April 1999, on a student visa. On 9 August 1999, he lodged an application for a protection (class AZ) visa. On 20 October 1999, a delegate of the respondent ("the Minister") refused to grant the applicant a protection visa. On 17 November 1999, the applicant lodged an application for review of the delegate's decision by the RRT. 3 The course of events before the RRT is of some importance. After a delay of nearly two years, the RRT wrote to the applicant on 10 October 2001, at his home address, inviting him to attend a hearing at the RRT on 15 November 2001. A copy of the letter was sent to the applicant's migration agent. 4 There is no dispute that the applicant received the letter and that he completed a form advising the RRT that he wished to give oral evidence and that his adviser would be in attendance. The applicant, however, neither attended at the appointed time nor communicated with the RRT to explain his absence. Nor did his representative appear or proffer any explanation for the applicant's non-appearance. In these circumstances, the RRT decided that, pursuant to s 426A of the Migration Act 1958 (Cth) ("Migration Act"), it would make a decision on the review without taking any further action to allow or enable the applicant to appear before it. 5 The applicant's written claims, in summary, were as follows: * he had joined the student wing of the Bangladesh Nationalist Party (BNP) while still in secondary school, and had been an active campaigner for that party ever since; * he had held office as general secretary of the student wing of the BNP; * his activities had aroused antagonism among student supporters of the other main party in Bangladesh, the Awami League (AL); * in 1995, soon after the AL had won the election, his house had been ransacked; * in 1998, he had been bashed by AL supporters and had complained to the police, but had not obtained a "result"; * the AL had filed a false charge against him; and * in December 1998, he had been bashed again. The applicant claimed that the last event was the precipitating factor in his decision to leave Bangladesh.