SPLB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 198

FEDERAL COURT OF AUSTRALIA

SPLB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 198 MIGRATION – appeal from summary dismissal for failure to comply with orders, and on basis amended application cannot possibly succeed – failure of appellant to appear Federal Court Rules O 52 r 38(1)(a), (c) and (d) SPLB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No S 23 of 2004 SPENDER, STONE AND BENNETT JJ ADELAIDE 3 AUGUST 2004

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 23 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SPLB

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: SPENDER, STONE AND BENNETT JJ

DATE OF ORDER: 3 AUGUST 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs, to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 23 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SPLB

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: SPENDER, STONE AND BENNETT JJ

DATE: 3 AUGUST 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT SPENDER J: 1 On 21 January 2004, Selway J dismissed the appellant's application for primary relief in relation to a decision of the Refugee Review Tribunal ("the RRT") given on 24 May 2001. 2 His Honour dismissed the application on two bases. 3 The background to the making of the orders by his Honour is summarised by him as follows: '(a) The applicant is an Indian citizen. He applied for a protection visa on the grounds that he feared persecution from the Indian government because of his involvement in anti-nuclear protests in the early 1990s. (b) A delegate of the Minister rejected his application for a protection visa. The applicant sought a review of that decision by the Refugee Review Tribunal ('the Tribunal'). As is set out in the Tribunal's reasons, the Tribunal made a number of attempts to obtain information from the applicant and to afford him an opportunity to give evidence. This included rescheduling hearing dates because of last minute contact from the applicant advising that he was unable to attend on the scheduled occasion. Eventually the Tribunal proceeded in the absence of the applicant. The Tribunal was not satisfied that the events described by the applicant in his written material did in fact occur. The Tribunal concluded: "On the basis of the country information and the limited and vague evidence provided by the applicant, the Tribunal is unable to be satisfied that the applicant faces a real chance of persecution from Indian authorities due to his opposition to its nuclear policies." The Tribunal confirmed the decision of the delegate. (c) Although not previously revealed in these proceedings, the affidavit of Ms White tendered on 13 January 2004, reveals that the applicant instituted proceedings in the High Court seeking judicial review of the Tribunal's decision (S 254 of 2002). The applicant accepted that he had done so. As the applicant also accepted, those proceedings were remitted to the Sydney Registry of the Federal Court on 6 February 2003 (N 262 of 2003). Ms White deposes that Emmett J summarily dismissed those proceedings on 6 June 2003, for failure of the applicant to attend a directions hearing (see [2003] FCA 1197). The applicant says that he does not know whether the application was dismissed - indeed, he suggested that the proceedings before me are a continuation of those proceedings. Nevertheless, I am satisfied that Emmett J did dismiss the proceedings and that they involve not only the same decision of the Tribunal, but the same issue of whether that decision was affected by jurisdictional error. (d) Fresh proceedings were instituted in this Court on 27 May 2003. The application sought certiorari, mandamus, prohibition and injunctions. Various jurisdictional errors were alleged. As seems to be common in proceedings of this nature there is no hint in either the application or the accompanying affidavit as to the relationship between those alleged errors and anything that the Tribunal actually did. On 21 October 2003, Mansfield J ordered that various steps be taken by the applicant by 18 November 2003 to remedy these deficiencies and get the matter ready for hearing, including the filing and serving of an amended application specifying precisely the error or errors complained of, an outline of submissions and various other matters. On 19 December 2003, the matter was adjourned to 6 January 2004, on the basis that the applicant's solicitor was yet to receive instructions from the applicant. On 5 January 2004 (the day before the matter was next due to come before the Court) the applicant informed the Court by facsimile that he was not aware of the orders made by Mansfield J on 21 October 2003 (it is noted that his solicitors informed the Court that they had forwarded a copy of the orders to him, but whether or not he received them is not presently a matter that I need to consider). The applicant also informed the Court that he was no longer represented and that he wished to have the matter transferred to the Victorian Registry of the Federal Magistrates Court. On 6 January 2004, when the matter came before the Court, his (former) solicitors attended, although they still had no instructions. Apparently they had not been informed that they were no longer acting. The applicant appeared by telephone and requested an interpreter. As none was available the matter was adjourned again to 13 January 2004, for the applicant to attend in Sydney so that the proceedings could be heard by video-link. In the meantime the Court sent to the applicant a copy of the orders made by Mansfield J. The Court also notified the applicant that the orders made by Mansfield J had not been complied with and, unless they were, the proceedings might be dismissed on the next occasion. On 8 January 2004, the respondent filed its Notice of Motion seeking to have the proceedings summarily dismissed pursuant to O 20 r 2 of the Federal Court Rules. On 12 January 2004, the applicant filed an amended application and informed the Court that he could not attend in Sydney. The terms of that amended application are discussed below. On 13 January 2004, the directions hearing finally proceeded. The applicant appeared by telephone. He was assisted by an interpreter.' 4 His Honour examined the amended application filed by the appellant on 12 January 2004 and referred to information given by the applicant by telephone about his application on 13 January 2004. The applicant at that time was assisted by an interpreter. 5 In written reasons given on 21 January 2004, his Honour set out the grounds of the appeal to the Federal Court in its original jurisdiction: '(1) The Tribunal denied procedural fairness and natural justice as in Muin. (2) The Tribunal's failure to consider relevant matters and consideration of irrelevant matters constitutes an error of law. (3) The Tribunal did not consider relevant information: Yusuf. (4) The Tribunal's decision was affected by an 'error of law'. (5) The Tribunal breached the requirements of s 424A of the Migration Act 1958 (Cth).' 6 His Honour commented in respect of those grounds at pars 4-5 of the reasons: 'There is nothing that connects any of these grounds with what the Tribunal in fact did or decided. The applicant explained that his complaint was that he could not return to India because of his fear as a result of his actions to oppose the testing of bombs. He said he had not been treated fairly by the Tribunal, but was unable to specify in what way he had been unfairly treated, other than that the Tribunal had not permitted him to stay in Australia. He could not identify any particular manner in which he had been misled by the Tribunal, other than his claim that he did not receive a letter (presumably from the Tribunal).' The applicant has failed to identify any jurisdictional error in the reasons, processes or decision of the Tribunal. It is clear that the applicant cannot succeed on the amended application. In these circumstances it is appropriate that the application be summarily dismissed both for failure to comply with the orders made by Mansfield J and on the basis that the amended application cannot possibly succeed. 7 His Honour also commented that it might have been possible to dismiss the application on the basis that it was an abuse of process for the proceedings to be continued after the same proceedings were dismissed by Emmett J. His Honour commented, however, that given that the application should be dismissed for the reasons he had already given, it was unnecessary to explore that question any further. 8 The notice of appeal filed by the appellant on 4 February 2004 asserted grounds of appeal as follows: '2. The learned judge erred in his judgement handed down on 21 January 2004 in not considering the relevant matters and infact had considered the irrelevant matters. – Denial of Natural Justice. 3. The learned Judge erred in not finding that the Refugee Review tribunal made errors in regards to the material facts of the case. 4. The learned Judge erred in not finding that the Refugee Review tribunal was in breach of a procedure that was required by the Migration Act 1958 to be observed in connection with the making of the decision of the tribunal. 5. The Tribunal was in breach of the requirements of s424A of the Migration Act 1958. 6. In a letter from the RRT the RRT invited me for a hearing. The RRT stated in that letter that it "has looked at all the material relating to your application". In fact, the RRT had not looked all the material relating to my application, giving rise to a denial of natural justice. Denial of natural justice is jurisdictional error of a type for which relief can be granted under Part 8A of the Migration Act as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 and the Migration Legislation Amendment Act (No1) 2001. 7. Refugee Review Tribunal's decision involved an error of law, being an error involving incorrect interpretation of the applicable law to the facts as found by the department. 8. The learned Judge erred in finding that "it is clear that the applicant cannot succeed on the amended application".' 9 The first four grounds, and the ground numbered seven, are formulistic and devoid of any meaningful particularisation. The ground numbered six is mere assertion without any supporting factual basis in the material, and no particulars are given of the bald assertion of error on the part of the primary judge in the ground numbered eight as a "ground of appeal". 10 The outline of submissions filed by the appellant on 2 August 2004 asserts five ways in which the RRT is said to have erred. Nothing is said in those written submissions as to why the primary judge erred, let alone identifying in any respect that there was such error. The submissions are concerned exclusively with the proceedings in the RRT. 11 There is no material which suggests, and no basis for thinking, that the exercise of discretion by the primary judge miscarried in any way. 12 The appellant did not appear when the appeal was called on, either personally, or by telephone as had been arranged. In a facsimile which bears time 11.25 am of 3 August 2004, the appellant sent a message addressed to Federal Court of Australia, Level 8, 25 Grenfell Street, Adelaide, South Australia, 5000. It referred to this hearing at 2.45 pm on Tuesday, 3 August 2004. The 2.45 pm is the Victorian time at which this appeal was to be called on at 2.15 pm South Australian time. The body of that communication is as follows: 'I will not be able to conduct the hearing scheduled for Tuesday, 03 August 2004 at 2.45pm. I am medically sick and unfit. I hereby fax my medical certificate for your consideration. I kindly seek the indulgence of the Federal Court that another hearing date be facilitated. This hearing is extremely crucial and I wish to be present at the hearing. Your cooperation and kind consideration regarding this matter is highly appreciated.' The facsimile medical certificate attached to the original facsimile is under the letterhead of the Fawkner Family Medical Centre at an address in Fawkner, Victoria, and two doctors are referred to - Dr Jagjit S Rattan and Dr John Haddad. The certificate which bears a stamp, Dr J S Rattan, says: 'I certify that on 2/8/04 I examined [the appellant] He/She was, in my opinion, suffering from "a med condition" I conclude by the reason of this condition and/or patient's statement he/she will be/has been unfit for work/school on … from 2/8/04 to 3/8/04 inclusive.' 13 Nothing in that unhelpful and almost contemptuous medical certificate indicates a reason why SPLB would be unable to answer the telephone at 2.15 pm on today's date as had been arranged. 14 Subsequent to the receipt of the facsimile transmission from the appellant, the Registrar has made more than thirty attempts by telephone to contact him to indicate that the matter would be called on at 2.15 pm, and he would be contacted by telephone then. After the court convened to hear the hearing, a further telephone call was made. That call appeared to have been received, but was peremptorily terminated without any response by the person who answered the call. That simply confirms that, in my view, the appellant has been seeking to avoid the inevitable, a view reflected in the absence of any material, even of the slimmest kind, to support any suggestion of error in the primary judge's reasons for judgment. 15 The material at first instance on the application before the primary judge, in the notice of appeal, and in the written statements by the appellant on behalf of his appeal indicates that the history of this matter has been one of bald and unparticularised assertion without the slightest scintilla of material to support any of the complaints. In particular, nothing in the material - including the appellant's written submissions - suggests any error on the part of the primary judge. 16 Having regard to the history of the matter and in particular to O52 r 38(1)(a), (c) and (d) of the Federal Court Rules, it is in my opinion appropriate that the appeal be dismissed with costs. STONE J: 17 I agree with the orders proposed by Spender J for the reasons his Honour has given.