FEDERAL COURT OF AUSTRALIA NADM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 376 MIGRATION – hopeless case – Calderbank letter – unsuccessful applicant for leave to appeal ordered to pay subsequent costs of proceedings on indemnity basis NADM OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N513 OF 2002 MADGWICK, EMMETT & CONTI JJ 6 NOVEMBER 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N513 OF 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: NADM OF 2002 APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGES: MADGWICK, EMMETT & CONTI JJ DATE OF ORDER: 6 NOVEMBER 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the applicant's notice of motion of 24 October 2002 be dismissed. 2. any application for leave to appeal from the orders of Wilcox J of 14 May and 3 September 2002 be dismissed. 3. the notice of appeal filed on 3 June 2002 be dismissed as incompetent. 4. the applicant to pay the respondent's costs up to 8 October 2002 on the ordinary basis and all costs thereafter 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 N513 OF 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: NADM OF 2002 APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGES: MADGWICK, EMMETT & CONTI JJ DATE: 6 NOVEMBER 2002 PLACE: SYDNEY REASONS FOR JUDGMENT MADGWICK J: 1 I will ask Emmett J to deliver his reasons first. EMMETT J: 2 The applicant is a citizen of Bangladesh. He arrived in Australia on 2 September 1999. On 22 September 1999 he lodged, with the Department of Immigration and Multicultural Affairs, an application under the Migration Act 1958 (Cth)("the Act") for a protection (class AZ) visa. On 9 November 1999 a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs ("the Minister"), refused to grant a protection visa. On 30 November 1999 the applicant applied for review of that decision to the Refugee Review Tribunal ("the Tribunal"). On 9 January 2002 the Tribunal affirmed the decision not to grant a protection visa. 3 On 1 March 2002 the applicant applied to this Court for orders pursuant to section 39B of the Judiciary Act 1903 (Cth). On 14 May 2002 Wilcox J dismissed the application in the absence of the applicant. On 3 June 2002 the applicant lodged a notice of appeal to the Full Court. The Minister informed the applicant of the provisions of O 35 r 7 of the Federal Court Rules and the applicant applied to Wilcox J for an order setting aside the order dismissing his application. On 3 September 2002 Wilcox J refused the application to set aside the order of dismissal. 4 The notice of appeal was listed for hearing today. The Minister contends, in essence, that the appeal is incompetent because of the absence of leave and that the proceeding should be treated as an application for leave to appeal from the two orders made by Wilcox J. 5 In his reasons of 3 September 2002 Wilcox J summarised the history of the proceeding. When the applicant filed his application on 1 March 2002, he was informed of the pilot scheme administered by the Court for the provision of free legal advice to people in his position. He elected to take advantage of that scheme and completed the necessary application form. A member of the panel was assigned to advise the applicant and on 15 March 2002 the District Registrar of the Court sent a letter to the panel member advising him of the assignment. At the same time the applicant was given contact details for the panel member. 6 There was some communication between the panel member and the applicant but it appears that there was some difficulty in arranging an interpreter. The applicant asserts that the panel member did not subsequently contact him and there has never been a conference at which advice was given. 7 On 12 April 2002 the matter came before Wilcox J for directions. The applicant appeared in person, assisted by an interpreter. His Honour fixed the matter for hearing at 2.15 pm on 14 May 2002 and, in doing so, emphasised to the applicant that the matter would proceed on that day and that he must attend. Wilcox J warned the applicant that if he did not attend and there was no adequate explanation, he could expect that the application for review would be dismissed. The applicant did not appear when the matter was called on for hearing at 2.15pm on 14 May 2002. The Court had received no message from him and was informed by counsel who appeared for the Minister on that occasion that no message had been received by counsel's instructing solicitors. For that reason his Honour dismissed the application. 8 In support of his motion to set aside the order of dismissal the applicant filed an affidavit in which he made the assertion: "I was very sick and unable to attend my Federal Court hearing on 14 May 2002." No details of the sickness were furnished in the affidavit, although two documents apparently emanating from a medical practitioner were attached to the affidavit. The applicant informed Wilcox J that he did not consult a doctor in May 2002. His Honour regarded it as significant that the applicant did not see a doctor at that time and considered that the applicant was not so ill that he could not telephone the Court. His Honour concluded that there was no credible evidence that the applicant was precluded from attending Court on 14 May because of illness. 9 His Honour also took into account the prospects of success of the application had it been heard on the merits. His Honour concluded that there was no discernible relevant error in the Tribunal's decision. 10 The power under O 32 r 2(1)(c) of the Federal Court Rules to dismiss a proceeding in the absence of an applicant is discretionary. So is the power under Order 35 Rule 7 to set aside such an order. Even if leave were granted to appeal from the orders made by Wilcox J, it would be necessary to establish that there was some error made in the exercise of discretion. The notice of appeal does not make any attack on the exercise of discretion but, rather, seeks to impugn findings that were not, in fact, made by his Honour. 11 I have examined the reasons of the Tribunal of 9 January 2002. The Tribunal found that there was a general lack of credibility in the applicant's claims of persecution. It was not satisfied that the applicant left Bangladesh to avoid persecution over his political opinion as he claimed. Rather, the Tribunal was of the firm view that the applicant left Bangladesh because he had been selected to be part of the United Nations Election Monitoring Teams in East Timor in 1999 and that he exploited the travel opportunity granted to him by the United Nations by applying for a protection visa in Australia which was apparently used by the United Nations as a staging post for its personnel in East Timor. Specifically, the Tribunal was not satisfied that the applicant had false charges of murder and weapons possession hanging over his head as he claimed. The Tribunal was therefore not satisfied that such issues pose a danger to him in the future. 12 While the Tribunal was prepared to accept that the applicant was a minor official in the Bangladesh National Party, as he claims to have been, the Tribunal was not satisfied that the applicant faces persecution over his political opinion. Further, the Tribunal was satisfied that, if for any reason, the applicant was threatened with harm in the future over his political opinion as he claimed he would not be denied protection from such threats. 13 The Tribunal had regard to independent evidence that showed that in general the forces of law and order can enforce the anti-crime laws according to their stated non-discriminatory purpose in Bangladesh. The Tribunal was satisfied that the authorities of Bangladesh are willing and capable of protecting the applicant from harm over his political views. 14 In those circumstances the applicant's claims of facing persecution in Bangladesh were not considered by the Tribunal to be credible. The Tribunal was therefore not satisfied that the applicant has a well-founded fear of persecution in Bangladesh over his political opinion or for any other reason under the 1954 United Nations Convention Relating to the Status of Refugees. Those conclusions of the Tribunal are clearly based on conclusions of fact reached by the Tribunal on the material before it. 15 The decision that the Tribunal is clearly a privative clause decision within the meaning of s 474(2) of the Migration Act. Accordingly, under s 474(1) the decision is final and conclusive, must not be challenged, appealed against, reviewed, quashed or called in question in any court and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. Notwithstanding that prohibition, the Court would have jurisdiction to intervene in relation to the decision if it could be established that the Tribunal did not attempt the making of its decision in good faith. 16 There is nothing in the material before us to suggest that the Tribunal approached its task otherwise than in good faith. Even if the Tribunal made a mistake in relation to the findings that it made, that of itself, would not constitute an absence of good faith. The decision of the Tribunal was clearly made under the Act and related to the subject matter of the Act. Accordingly, there appears to me to have been no basis upon which the application could have succeeded before Wilcox J had the matter been dealt with on the merits. In my view the application for leave should be refused. 17 Having indicated to the parties that any application for leave to appeal from the orders of Wilcox J should be refused, counsel for the Minister asked for an order for costs on an indemnity basis. In support of that application counsel tendered a letter of 8 October 2002 addressed to the applicant. In that letter the solicitors for the Minister outlined the history of the matter and suggested that, in light of the judgment and orders of Wilcox J, the continuation of the appeal would be futile. 18 The letter informed the applicant that if he elected to continue with his appeal and the proceedings were ultimately unsuccessful the Minister might seek an order from the Court that the applicant pay the Minister's costs on an indemnity basis. For the reasons that we have indicated, the application to this Court in the first place had no prospect of success and was futile from the beginning. The applicant failed to appear before Wilcox J at the hearing when the matter was first fixed for hearing and no satisfactory explanation was proffered to his Honour to justify setting aside the order for dismissal. 19 Notwithstanding the clear warning of the letter of 8 October 2002 the applicant decided to prosecute the appeal. In my opinion the appropriate orders are that: 1. the notice of motion of 24 October 2002 be dismissed. 2. any application for leave to appeal from the orders of Wilcox J of 14 May and 3 September 2002 be dismissed. 3. the notice of appeal filed on 3 June 2002 be dismissed as incompetent. 4. the applicant to pay the respondent's costs up to 8 October 2002 on the ordinary basis and all costs thereafter on an indemnity basis. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 25 November 2002 MADGWICK J: 20 I agree. I would add that this is not the case of a bewildered applicant, adrift in a foreign country where the lingua franca is not his own first language, unable to obtain legal assistance. On the initiative of a judge of this Court, Wilcox J as it happens, the respondent Minister was, some time ago, persuaded to finance, for cases in New South Wales such as this, a pilot scheme whereby every applicant to the Court, assuming lack of means, might obtain free legal advice as to the prospects of his or her application to the Court for judicial review of the decision of the Refugee Review Tribunal. 21 The applicant was afforded that opportunity. He claimed that arrangements to see the barrister who was assigned to him broke down because of some difficulty in having an interpreter attend. As Wilcox J said, however, it was clear that the applicant did not follow up this opportunity as he should have done. Having thus not availed himself of legal advice that might have been his, he failed, in circumstances for which a lamentably inadequate explanation has been tendered, to attend on the hearing of his application by the Court. His application to set aside the consequent dismissal of his application failed before a judge who, I may say with respect, is well known for his compassion in these matters. 22 The applicant persisted with an attempted appeal against the two orders of Wilcox J after a warning by the respondent that it took the position that his application was hopeless. Finally he made a quite unmeritorious application for an adjournment today. 23 In my view, the respondent has been vexed quite unnecessarily by a hopeless case put forward by the applicant and there has been no justification whatsoever for such conduct by him. I certify that the preceding four-five (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwickt. Associate: Dated: 25 November 2002 CONTI J: 24 I agree. I certify that the preceding paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 25 November 2002 Counsel for the Appellant: The appellant appeared in person with an interpreter Counsel for the Respondent: Mr J. Smith Solicitor for the Respondent: Sparke Helmore Date of Hearing: 6 November 2002 Date of Judgment: 6 November 2002