NABV v Minister for Immigration & Multicultural Affairs [2002] FCAFC 167

FEDERAL COURT OF AUSTRALIA

NABV v Minister for Immigration & Multicultural Affairs [2002] FCAFC 167

NABV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N1532 of 2001 MADGWICK, DOWSETT & STONE JJ 23 MAY 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1532 of 2001

ON APPEAL FROM A JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN: NABV

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MADGWICK, DOWSETT & STONE JJ

DATE OF ORDER: 23 MAY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for leave to appeal be dismissed. 2. The applicant pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1532 of 2001

ON APPEAL FROM A JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN: NABV

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MADGWICK, DOWSETT & STONE JJ

DATE: 23 MAY 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT (revised from transcript) MADGWICK J: 1 In this matter the applicant has purported to appeal "from the whole of the judgment of J. Tamberlin" given on 26 October 2001 at 2.15pm. The grounds of appeal are what might perhaps be expected if this were an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). However, the judgment of Tamberlin J referred to was one in which his Honour made an order pursuant to O 32 r 2 of the Federal Court Rules ("the Rules") dismissing the proceeding in the absence of the present applicant. 2 The circumstances were that when the matter was originally called on before his Honour the applicant did not appear. A message was received by the Court purporting to come from the applicant, which was to the effect that his car had broken down. His Honour then adjourned the proceedings until later that day. Five minutes after that later appointed time, the matter was again called and there was no appearance by or on behalf of the applicant. His Honour said: "I have considered the decision below and I have considered the grounds which have been put forward to support the application for review. On the material which is presently before me, the case does not appear to be a strong case in any sense and I have not found any error to have been disclosed. I therefore dismiss the proceeding and I order that the applicant pay the costs of the respondent of the application for review." 3 Earlier in his judgment, his Honour had specifically drawn attention to the provisions of O 35 r 7 and pointed out that it enables a party against whom a decision, such as his Honour was making, has been made in absentia to make an application to the Court to have the judgment or orders set aside. There are proper grounds for making such an application. 4 The applicant in fact made such an application. It was dealt with by his Honour in a judgment of 2 May 2002. On the hearing of that application to set aside the orders with which we are presently concerned the applicant provided his Honour with an explanation for his further absence on 26 October 2001, namely that he had come to the Court building but had not managed to find his way to the Court room itself. In his judgment, his Honour explained that he had indicated to the applicant, at an earlier directions hearing, that it would be necessary for him to inform the Court what substantive grounds, if any, he had in relation to the application to review the decision of the Tribunal. The applicant had declined to make any submissions in relation to that matter in any detail contending, as his Honour put it, "that he had understood that the matter was only before the Court today in relation to the motion to set aside the judgment". As his Honour observed, however, a motion to set aside the judgment involved the exercise of discretion and the taking into account of whether there were any real prospects of success on the application, having regard to the material before the Court. His Honour found that there was no arguable basis to suggest any error of law or principle by the Tribunal which might be reviewable in this Court. In particular his Honour was: "not satisfied that there has been any failure [by the Tribunal] to give proper consideration or the full opportunity of a proper hearing to the applicant in the circumstances of the case." His Honour concluded: "Accordingly, in the exercise of my discretion in this matter and having regard particularly to the detailed history of events which have taken place, both in relation to the original hearing and in relation to the present hearing, I consider the application for leave to re-open the judgment pursuant to O 35 r 7 should be dismissed with costs." 5 The applicant appeared in person before us and was, until a moment or two ago, unassisted by an interpreter. However, his English appears to the Court to have been entirely equal to the task of representing himself. I am satisfied that the applicant fully and sufficiently understood the nature of the proceedings and the question to which the Court invited him to try to turn his attention, namely the necessity to show error on the part of Tamberlin J in his judgment of 26 October 2001. 6 The applicant more or less sternly resisted this invitation and adhered to explanations of why the Tribunal had, in his submission, behaved unlawfully and unjustly in declining to adjourn consideration of the matter before it. The applicant informed the Court that everything he wanted to say was contained in a written submission which he had forwarded to the Registrar. This is a letter of 21 May 2002, written in English and signed by the applicant, which I have initialled and which will be placed with the papers. Those submissions again entirely canvass only whether the Tribunal had erred by not further deferring its consideration of the matter. 7 It is possible that these submissions may have some relevance to an aspect of the case. His Honour decided however, in the exercise of his discretion, to dismiss the proceedings because of the applicant's non-appearance. His Honour justified that decision on the basis that, on the material which was before him, the applicant's case did not appear to be a strong one. 8 Insofar as that matter does arise for decision it must be said, in my opinion, that his Honour spoke with some restraint. The circumstances of the applicant's claim were that he originally claimed to be a refugee upon the basis that, as a Hindu in predominantly Muslim Bangladesh, he had been persecuted for religious and/or political reasons and forced to flee to India. He later made the claim that he was a refugee because, having converted from Hinduism to Christianity whilst in India, he was persecuted on religious grounds by militant Hindus there and had to leave India. There were also serious questions about whether he and his wife were Bangladeshis at all. They had travelled on Indian travel documents, and at least in his own case, these were issued at a point before, on his first account, he was ever in India. 9 In relation to the question of the Tribunal's failure to adjourn the matter, the applicant at a very late stage, furnished material to the Tribunal suggesting that his wife was receiving medical care for a miscarriage. The Tribunal caused inquiries to be made of the wife's treating doctor who volunteered to the Tribunal that there was no reason why the wife could not appear before the Tribunal. The Tribunal asked the applicant to answer particular questions about what he and his wife had done on the day the matter had originally been listed for hearing and gave him an opportunity to give evidence and state his case. The applicant declined to provide an answer to the Tribunal's request. In those circumstances the Tribunal, one might think inescapably, came to the conclusion that the applicant had had a very fair opportunity to present his case and that there was no further reason for delay in the matter. To say that the substance of the applicant's case as to his credit appears unpromising is sufficient. Likewise, as to the suggestion that the Tribunal failed to give him every reasonable opportunity to be heard and to give evidence also appears, to say the least of it, unpromising. 10 No error, indeed no trace of error, is apparent on the part of Tamberlin J. Leaving all other matters aside, such as whether the applicant should be permitted to pursue the dual remedies of having asked his Honour to set aside the judgment now sought to be appealed and at the same time to appeal against that very judgment, the applicant's case as to what might be the ultimate merits of his attack on the Tribunal's decision is so weak that, in my opinion, his Honour was entirely correct in taking the course that he did. 11 The matter should be treated as an application for leave to appeal and the application should be dismissed with costs. DOWSETT J: 12 I agree. STONE J: 13 I agree. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court.