NAET of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 304

FEDERAL COURT OF AUSTRALIA

NAET of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 304

NAET OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N562 of 2002 SACKVILLE, ALLSOP and JACOBSON JJ SYDNEY 27 SEPTEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 562 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: NAET OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: SACKVILLE, ALLSOP and JACOBSON JJ

DATE OF ORDER: 27 SEPTEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The notice of appeal be treated as an application for leave to appeal. 2. The application for leave to appeal be dismissed. 3. The appellant pay the respondent's costs of the purported appeal and the application for leave to appeal on an indemnity basis. 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 562 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: NAET OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: SACKVILLE, ALLSOP and JACOBSON JJ

DATE: 27 SEPTEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT THE COURT 1 This purports to be an appeal from a judgment of Conti J, delivered on 28 May 2002. His Honour dismissed an application made by the appellant, as we shall describe him, for a review of a decision of the Refugee Review Tribunal ("the RRT") dated 12 March 2002. The RRT affirmed the decision of a Delegate of the Minister made on 20 December 2000 to refuse the appellant a protection (class XA) visa. 2 The appellant did not appear before his Honour when the matter was called on for hearing. His Honour dismissed the application pursuant to O 32 r 2(1)(c) of the Federal Court Rules ("FCR"). It is clear enough that the dismissal of the application was an interlocutory judgment. The appellant therefore requires leave to appeal: Federal Court of Australia Act 1976, s 24(1A). 3 When the matter was called today the appellant did not appear in Court. The appellant had sent a letter, both to the Court and to those instructing Mr Smith who appears for the Minister, indicating that he wished to discontinue the appeal. Mr Smith has invited the Court to hear the appeal, or more accurately to treat the appeal as an application for leave to appeal. We are content to adopt that course. 4 The dismissal of the application by the primary Judge was an exercise of his Honour's discretion: Pham v University of Queensland [2002] FCA 203; FCAFC 40 ("Pham") at [22]; Bondartchouk v Minister for Immigration and Multicultural Affairs [2001] FCA 599 at [6]. 5 In order for the appellant to obtain leave to appeal it is necessary for him to satisfy us that there are reasonable prospects that if leave is granted we would hold that his Honour's discretion miscarried under the well-known principles stated by the High Court in House v The King (1936) 55 CLR 499 at 504-505. The primary Judge was satisfied that the appellant had been given a proper opportunity to appear at the hearing of his application in this Court. His Honour observed that the appellant had been on notice of the hearing for a considerable time and had been present at a directions hearing conducted by the Registrar on 18 April 2002 when the matter was listed for hearing. 6 The material before us suggests that the appellant failed to appear before the Court at first instance because he did not remember the date of the final hearing. This contention does not meet his Honour's finding that the appellant had had adequate notice of that hearing. Indeed if anything it serves to confirm the correctness of that finding. 7 His Honour drew attention to the provisions of FCR O 35 r 7, under which a party against whom a decision has been made in his or her absence may apply to the Court to have the judgment set aside. The appellant has made no such application. Indeed, it appears that the legal representatives of the Minister wrote to the appellant on 26 July 2002, reinforcing the point that the procedure under O 35 r 7 was open to him and inviting him to pursue that path rather than invoking the appellate jurisdiction of the Court. Despite this, the appellant has made no application to have the judgment set aside. 8 In exercising his discretion under FCR, O 32 r 2(1)(c) his Honour was not necessarily required to consider whether the appellant's application had any prospects of success: Pham at [26]. Nevertheless, his Honour reviewed the decision of the RRT and formed the prima facie view that no error had been disclosed. 9 As his Honour noted the appellant is an Indian citizen who was born in Gujarat State in 1966. He is a Muslim who arrived in Australia on 8 April 1995. He has been resident in Australia since that time, except for a period of three months between 24 April 1997 and 22 July 1997 when he returned to India. 10 His Honour also noted that the appellant's claim was that he had a well-founded fear of persecution by reason of his religion. The appellant's written submissions were to the effect that he feared persecution at the hands of Hindu extremists in Gujarat State. 11 Although his Honour was not required to embark upon the merits of the application, there was no error in him doing so. We have read the decision of the RRT. It is plain that the decision was based upon adverse findings as to the credibility of the appellant's claims. Those findings were clearly open to the RRT. Accordingly, the prima facie finding made by his Honour that the decision of the RRT was sound, was itself a proper finding. Indeed, we have been unable to discern any error in the RRT's reasons that might give rise to a claim for relief pursuant to s 39B of the Judiciary Act 1903 (Cth). 12 In our opinion, not only was there no error in the exercise of his Honour's discretion, but we agree with the orders that he made and the reasons that he gave. 13 The grounds of appeal that have been filed in this Court do not deal with the exercise of his Honour's discretion; they merely seek to impugn findings of fact that were not made by his Honour. In written submissions that were supplied by the appellant he seeks to attack the merits of the RRT's decision, but neither the grounds of appeal nor the written submissions disclose any error in the exercise of his Honour's discretion. 14 The only other ground of appeal that is set out in the notice of appeal is that his Honour and the RRT failed to accord the appellant natural justice apparently upon the basis that he was not given an opportunity to be heard. These grounds are entirely without merit. It is plain from his Honour's reasons that the appellant was given a proper opportunity to appear at first instance. To the extent that it is relevant the materials before the primary Judge demonstrate that there were a number of communications between the RRT and the appellant concerning the date of the hearing before the RRT. Those materials indicate that the appellant was aware of the RRT hearing in advance but did not attend. 15 In the circumstances we consider that the appropriate orders to make are as follows: 1. Direct that the notice of appeal be treated as an application for leave to appeal. 2. The application for leave to appeal be dismissed. 16 Mr Smith has made an application for the award of indemnity costs. It is necessary of course for there to be something unusual about the circumstances of the case in order to justify an award of indemnity costs as distinct from the usual award of party/party costs. 17 In this case the Minister's representatives wrote to the appellant on 26 July 2002 drawing his attention to the appropriate course to adopt. The fact that the appellant was put on notice that the course with which he was proceeding was very likely doomed to failure and that he chose not to pursue the alternative path pointed out to him, in our view constitutes sufficient reason to make an award of indemnity costs. 18 Accordingly, the Court orders that the appellant pay the respondent's costs of the purported appeal and the application for leave to appeal on an indemnity basis. Those then are the orders of the court. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.