NAWP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 662

FEDERAL COURT OF AUSTRALIA

NAWP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 662 NAWP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1536 of 2003 BRANSON J 21 MAY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1536 of 2003

BETWEEN: NAWP

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 21 MAY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the costs of the respondent. 3. The above orders not be drawn up for 21 days from today's date.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1536 of 2003

BETWEEN: NAWP

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE: 21 MAY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION 1 The applicant, a Mongolian national, seeks judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') made on 26 August 2003 whereby a decision not to grant the applicant a protection visa was affirmed. The hearing of the application for judicial review has been delayed because of difficulties involved in obtaining the services of an interpreter qualified in Mongolian and English. 2 Regrettably, when this matter was called at 3.00 pm today, the scheduled time for the hearing of which the applicant had been notified both in writing and orally, the applicant was not in Court. The hearing of the application has been delayed for more than half an hour against the possibility that the applicant might arrive, but she has not done so. In the course of the period between 3.00 pm and 3.30 pm the Minister's instructing solicitor, together with the interpreter, searched for the applicant both at the level of the registry and level 18, where she had previously attended, but without success. The applicant's mobile telephone has apparently both yesterday and today been switched to a recorded message. In the circumstances, I have determined that the appropriate course is to have this matter proceed in the absence of the applicant. 3 Before the Tribunal the applicant claimed to have a well‑founded fear of persecution in Mongolia by reason of her political opinion and also by reason of being a member of a particular Mongolian social group, namely, journalists. After the applicant's hearing before the Tribunal the Refugee Advice and Casework Service (Australia) Incorporate ('the RACS') wrote to the Tribunal on her behalf. In its letter the RACS sought to clarify certain aspects of the applicant's claims. The letter explained that the applicant's protection visa application was written by her then adviser, was not properly translated to or discussed with her, and contained inaccuracies. The applicant's experiences in Mongolia and the risks that she claimed to face if required to return there were summarised in the letter. By the letter the applicant requested a further hearing before the Tribunal asserting that a great deal of the previous hearing had involved efforts to resolve confusion caused by the applicant's protection visa application. 4 The Tribunal declined to conduct a further hearing. However, in its reasons for decision the Tribunal records that it: 'is both prepared and able to make its present decision without relying on material found in the Applicant's DIMIA application form ….'