NAHY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 766

FEDERAL COURT OF AUSTRALIA

NAHY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 766 NAHY v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N1052 of 2002 MADGWICK J 24 MARCH 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1052 of 2002

BETWEEN: NAHY

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE OF ORDER: 24 MARCH 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. There is no basis for the Court to restrain the Minister from taking further steps to remove the applicants from Australia. 2. The applicants are to pay to the Minister's costs of the application. 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 N1052 of 2002

BETWEEN: NAHY

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE: 24 MARCH 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT HIS HONOUR: 1 This is an application by two people, who at this moment, are about to be placed on a plane for return to Indonesia, for interlocutory orders preventing their removal from Australia. The applicants are citizens of Indonesia who came to Australia on 8 October 2001 each on a tourist visa. 2 On 29 January 2002, they applied for protection visas and were refused by a delegate of the respondent Minister. The applicants approached the Refugee Review Tribunal ('the Tribunal') for a review of the delegate's decision and on 16 April 2002 the Tribunal affirmed the decision of the delegate. 3 On 8 May 2002, the applicants applied to the Federal Magistrate's Court for judicial review of the Tribunal's decision and on 27 September 2002 Driver FM dismissed their applications with costs. It appears from his judgment that the Tribunal had not accepted many of the claims made by the applicants. Their case was based upon a fear of discrimination in Indonesia because of their Chinese ethnicity. The Tribunal however apparently considered that, contrary to the claims of the applicants, they would be able to obtain effective state protection in Indonesia. The learned Federal Magistrate held that there was no jurisdictional error and dismissed the application for judicial review. 4 The applicants then appealed to this Court and their appeal was heard by Moore J on 5 December 2002. The applicants failed to appear and his Honour dismissed the appeal with costs. 5 The applicants do not deny that they knew of the hearing listed before Moore J, but rather, they say that they chose not to appear. They say that they had little English at the time and it was difficult for them to explain their case whereas, now that their English has improved, they feel they could present the matter better. However, what the applicants wish to present is a better account of the facts in Indonesia and to show that the Tribunal was factually wrong. 6 There has been no appeal or attempt to appeal to the High Court from the judgment of Moore J. His Honour was exercising the appellate jurisdiction of the Court. His Honour acted under O 52, r 38A which provides: '(1) If a party is absent when an appeal is called on for hearing, the Court may: … (c) if the absent party is an appellant or cross-appellant, dismiss the appeal or cross-appeal…' Subrule 2 provides: 'If an order is made under paragraph (1)(c) to dismiss an appeal … the Court may [on motion by the party against whom the order is made]: (a) set aside or vary the order ...' 7 However, no case has been made out for the Court so to act and, assuming that the applicants might be excused, on account of the urgency of the matter, from their failure to enunciate any such actual request in the initiating process, there is no prospect of any such application succeeding. 8 In these circumstances, there is no basis for the Court to restrain the Minister from taking further steps to remove the applicants from Australia.