NAHM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 412

FEDERAL COURT OF AUSTRALIA

NAHM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 412 APPLICANT NAHM of 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 369 of 2002 WHITLAM, SACKVILLE and CONTI JJ SYDNEY 28 NOVEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 369 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: APPLICANT NAHM of 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: WHITLAM, SACKVILLE and CONTI JJ

DATE OF ORDER: 28 NOVEMBER 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 is refused. 3. The applicant is to pay the respondent's costs. 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 369 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: APPLICANT NAHM of 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: WHITLAM, SACKVILLE and CONTI JJ

DATE: 28 NOVEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT WHITLAM J 1 Before the Court is an application which purports to be an appeal from orders made by Hill J ([2002] FCA 494) on 11 April 2002, dismissing with costs an application in respect of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 26 July 2001. The Tribunal affirmed the decision of a delegate of the respondent refusing to grant the applicant a protection visa. 2 The order made by Hill J dismissing the application was made pursuant to O 32 r 2(1)(c) of the Federal Court Rules ("the Rules"). An order made pursuant to that provision of the Rules is an interlocutory decision. Accordingly, leave is required to appeal from such a decision. Strictly speaking, the process instituting the present proceeding may involve an appeal that is incompetent. However, the applicant has the misfortune to be acting for himself and the respondent does not oppose the course of treating his notice of appeal as if it were an application for leave to appeal. We approach the matter on that basis. 3 The power of the Court under O 32 r 2(1)(c) is discretionary. It is necessary, therefore, for persons seeking leave to appeal to show that there is an arguable case the primary judge erred in the exercise of his or her discretion. No ground is raised in the notice of appeal in respect of this issue. The condition precedent to the exercise of the primary judge's discretion was, of course, that the applicant be absent at the time and place at which the proceeding was called on for hearing. There is no doubt that that condition was met. Furthermore, it appears there was evidence before his Honour that the applicant had been notified of the hearing date by correspondence sent to his address for service. It should also be observed that that hearing date was set at a further directions hearing, the date of which was fixed at the first directions hearing in the presence of the applicant, but at which he also failed to attend. Nothing that has been said by the applicant suggests any error of principle in his Honour's approach nor did his Honour misapprehend any of the facts relevant to his exercise of discretion. 4 For my own part, in relation to the question of leave, it would be desirable to show that there was an arguable case in respect of the substantive proceeding. There is nothing in the grounds of review, either in the proceeding instituting the initiating process, or in the notice of appeal before us, nor has anything been said by the applicant, to suggest that he has an arguable case. This also was a question Hill J had regard to, notwithstanding the absence of the applicant on the hearing date. 5 Accordingly, in my opinion, application for leave to appeal should be refused with costs.