Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
NAIO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1383
NAIO v MINISTER FOR IMMIGRATION & MULTICULTURAL &
INDIGENOUS AFFAIRS
N 1304 OF 2003
LINDGREN J
25 NOVEMBER 2003 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 1304 OF 2003
AN APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: NAIO
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE: LINDGREN J
DATE OF ORDER: 25 NOVEMBER 2003
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent's costs of the appeal.
3. Orders 1 and 2 not be entered until 10 December 2003.
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 1304 OF 2003
AN APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: NAIO
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE: LINDGREN J
DATE: 25 NOVEMBER 2003
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 The appellant is a citizen of Bangladesh. He arrived in Australia on 27 November 2000. On 28 December 2000 he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 16 February 2001 a delegate of the respondent (respectively, 'the Delegate' and 'the Minister') refused to grant a protection visa. 2 On 7 March 2001 the appellant applied to the Refugee Review Tribunal ('the Tribunal') for review of the Delegate's decision. On 6 December 2002, the Tribunal decided to affirm the Delegate's decision. 3 The appellant applied to the Federal Magistrates Court of Australia for relief in respect of the Tribunal's decision, apparently under s 39B of the Judiciary Act 1903 (Cth). On 15 August 2003 that Court dismissed the application and ordered the appellant to pay the Minister's costs, which were assessed at $4,250 ([2003] FMCA 360). It is from that judgement that the appellant now appeals to this Court. 4 The grounds of appeal relied on are set out in an amended notice of appeal filed on 24 September 2003 as follows (the appellant is unrepresented and I have not corrected the form of his statement of grounds): '1. A number of errors were occurred by the Tribunal, which was not considered by the Honourable judge. 2. The Tribunal misunderstood the applicant's claim and the decision by the Tribunal was not reflected the true picture of the claim. Honourable judge did not consider this. 3. The Tribunal did not provide the applicant's an opportunity to comment on the information, which the Tribunal relied on its decision. Where the applicant was deprived of receiving natural justice, Honourable judge also did not consider this. 4. S474 of the Migration Act is ineffective as per the recent two decision of the High Court of Australia. Honourable trial judge did not consider this in favour of the applicant. 5. The applicant will face persecution if he returns to his country of origin as there is a significant level of violation human rights, this was not considered by honourable judge.' 5 On the hearing this morning, the appellant has handed up a document headed 'Applicant's Written Argument' in support of his appeal. The terms of this document are in many respects identical to the terms of the grounds on which, according to the reasons for judgement of the learned Federal Magistrate, the appellant relied on before his Honour. 6 Although invited to attend an oral hearing before the Tribunal, the appellant did not avail himself of that opportunity. Indeed, the migration agent who was assisting him responded to the invitation by writing to the Tribunal on 5 December 2002 as follows: 'I act for Mr [name]. The applicant has instructed me to inform the Tribunal that he will not appear at the hearing today. He wishes to receive the decision on the basis of documents containing [sic – contained] in the file.'
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