NAQZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1324

FEDERAL COURT OF AUSTRALIA

NAQZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1324 NAQZ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1997 of 2003 BRANSON J 30 JULY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1997 of 2003

BETWEEN: NAQZ

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 30 JULY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application to the Court to set aside the judgment of the Full Court given on 4 May 2004 be dismissed. 2. The applicant pay the costs of the respondent.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1997 of 2003

BETWEEN: NAQZ

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE: 30 JULY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT (revised from transcript) 1 I have before me a notice of motion to set aside the whole of a judgment of the Full Court given on 4 May 2004. By that judgment the Full Court dismissed an appeal to it brought by the present applicant. The reasons for judgment of the Court reveal that the Court had received a facsimile from the present applicant, the then appellant, seeking an adjournment of the hearing of the appeal on the basis of his ill health. The Court noted that the then appellant had been sent a letter stating that he should not presume that the Court would be prepared to adjourn the hearing of his appeal, but that, nonetheless, he had not been present when the appeal was called on for hearing. 2 An application was made to the Full Court to dismiss the appeal pursuant to O 52 r 38A of the Federal Court Rules because of the appellant's non-attendance. The Full Court considered it appropriate to allow the application and dismiss the appeal with costs. It noted that it could have more confidence in doing so because it found that no basis for upholding the appeal was identified. 3 Mr Ek, who appeared on behalf of the applicant, has said all that could have been said on behalf of the applicant. However, I am not satisfied that any proper explanation has been given for the non-attendance of the applicant when his appeal was called on 4 May 2004 before the Full Court. Nor am I persuaded that the appeal that the applicant would be in a position to run, were I to set aside the judgment of the Full Court, would have any merit. 4 The Refugee Review Tribunal ('the Tribunal') did not believe the claims of the applicant, finding him a wholly incredible witness. The Tribunal found that he had not suffered harm in Nigeria and did not have a well-founded fear of harm were he to return to Nigeria. I am not satisfied that the applicant ran a case before the Tribunal that he had a well-founded fear of persecution in Nigeria merely because he was a member of the Ibu Tribe. His claims to fear persecution in Nigeria were based upon his involvement, as a member of the Movement for the Sovereign State of Biafra (MASSOB), in a flag-raising incident in Nigeria. The Tribunal did not believe his assertion that he had been involved in that incident. 5 The order of the Court today is that the application to the Court to set aside the judgment of the Full Court delivered on 4 May 2004 be dismissed with costs. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.