NACJ of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCA 1290

FEDERAL COURT OF AUSTRALIA

NACJ of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCA 1290 NACJ OF 2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 1558 of 2001 STONE J 2 OCTOBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1558 OF 2001

BETWEEN: NACJ OF 2001

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 2 OCTOBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The notice of motion be dismissed. 2. 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 N1558 OF 2001

BETWEEN: NACJ OF 2001

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE: 2 OCTOBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 I have before me a notice of motion and supporting affidavit filed by the applicant seeking to set aside orders made by Lindgren J on 3 April 2002. It is necessary for me to give some background to the orders made by Lindgren J and the circumstances surrounding the filing of the notice of motion. 2 The applicant arrived in Australia on 25 December 1998 and applied for a protection visa on 30 December 1998. A delegate of the respondent refused the application on 24 February 1999. The applicant lodged an application for review of this decision with the Refugee Review Tribunal ("Tribunal") on 17 March 1999. There were a number of hearings before the Tribunal which handed down its decision, affirming the delegate's decision, on 25 October 2001. The applicant lodged his application for a review of the Tribunal's decision in this Court on 26 November 2001. The matter was fixed for hearing on 3 April 2002 however, on that date the applicant did not appear. For this reason Lindgren J acceded to a request made by the respondent's counsel that the application for a review of the Tribunal's decision be dismissed pursuant to O 32 r 2(1)(c) of the Federal Court Rules. 3 On 23 April 2002, the applicant filed a notice of appeal against the decision of Lindgren J. The appeal came on for hearing before a Full Court on 28 August 2002. On that date, the Court adjourned the hearing of the appeal to the next Full Court callover on condition that the applicant file and serve: (a) a notice of motion to set aside the orders made by Lindgren J within 14 days; and (b) an affidavit in support of the notice of motion as soon as reasonably practicable. The notice of motion, and affidavit in support, which are the documents before the Court, were both filed, within the period stipulated by the Full Court, on 10 September 2002. 4 Order 35 rule 7(2)(a) entitles the Court to set aside orders made in circumstances such as these. The rule, however, clearly puts the exercise of this power at the discretion of the Court. In exercising this discretion the Court will not indulge in an exercise of futility; the Court will not set aside orders dismissing an application in the absence of the applicant if it is clear from the material before the Court that the same outcome would result from another hearing. 5 In this case, although entitled to dismiss the application without any consideration of its merits, Lindgren J stated that he had read the papers and did not think there was any injustice in dismissing the application. His Honour set out the claims made by the applicant in his application for review of the Tribunal's decision. These claims largely consisted of a restatement of the claims made before the Tribunal. His Honour commented: "The Tribunal did not accept many of the claims made by the applicant and gave reasons for not doing so. In fact the Tribunal described the applicant as a "grossly unreliable witness". The Tribunal declared itself not satisfied that the applicant faced a real chance of Convention-related persecution in Bangladesh. No ground of review suggests itself." 6 His Honour went on to note that the Tribunal's decision was given on 25 October 2001 and that the Minister contended that s 474 of the Migration Act 1958 (Cth) ("the Act"), pursuant to which the Tribunal's decision is a privative clause decision, precludes this Court from having jurisdiction to review the Tribunal's decision.