QAAM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 211

FEDERAL COURT OF AUSTRALIA

QAAM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 211

MIGRATION – judicial review – detention following failed application for protection visas and judicial review in respect thereof – appeal against dismissal of application for judicial review – no appearance at appeal hearing – stated intention not to attend appeal hearing – appeal heard and determined and dismissed on merits – Order 52 rule 38A(1)(d) Migration Act 1958 (Cth) Federal Court Rules O 52 r 38A(1)(d) QAAM OF 2002 and QAAP of 2002 v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Q119 OF 2004 FRENCH, FINN and MANSFIELD JJ 6 AUGUST 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q119 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

BETWEEN: QAAM OF 2002 (a minor)

QAAP of 2002

APPELLANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: FRENCH, FINN AND MANSFIELD JJ

DATE OF ORDER: 6 AUGUST 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants pay the respondent's costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q119 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

BETWEEN: QAAM OF 2002 (a minor)

QAAP OF 2002

APPELLANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: FRENCH, FINN AND MANSFIELD JJ

DATE: 6 AUGUST 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT THE COURT: The History of Events Leading to the Present Appeal 1 The appellants, father and daughter, are German nationals. They visited Australia for one month in November and December 1996 and for seven months between December 1997 and July 1998. They came back to Australia on 23 November 1998 when they were granted UD 976 visas valid to 23 February 1999. 2 On 15 February 1999, the father lodged an application for a protection visa including his daughter as a dependant. That application was refused on 15 July 1999. An application for review to the Refugee Review Tribunal ('the Tribunal') was lodged on 9 August 1999. The Tribunal affirmed the delegate's decision refusing the visa on 2 February 2001. A bridging visa which had been issued to the appellants ceased on 9 March 2001. 3 The father then lodged an application for judicial review with the Federal Court on 7 March 2001. That application was dismissed on 4 September 2001. On 9 October 2001, the father was granted a Bridging Visa D valid to 16 October 2001. 4 An application for a protection visa was lodged on behalf of the daughter on 3 October 2001 naming the father as a dependant applicant. The daughter was granted a Bridging Visa C on 9 October 2001. The father's dependant application was determined to be invalid by operation of s 48A of the Migration Act 1958 (Cth) ('the Act') and was assessed as a request under s 48B of the Act. However that request was not referred. 5 On 12 March 2002, the daughter's application for a protection visa was refused. An application for review by the Tribunal was lodged. On 11 June 2002, a s 417 request was lodged with the Minister and finalised on the basis that the Minister had no power to intervene. That was done on 3 July 2002. 6 On 27 September 2002, an application for review of the decision to refuse the daughter's application was lodged with the Administrative Appeals Tribunal ('the AAT'). On 25 October 2002, the Tribunal affirmed the decision to refuse the daughter's protection visa. The AAT determined, on 26 November 2002 that it had no jurisdiction to deal with the application for review lodged with it. 7 On 21 November 2002, an application for review of the decision to refuse to grant the daughter a protection visa was lodged with the Federal Court. Her Bridging Visa C ceased on 25 December 2002. 8 The father lodged a further protection visa application on 26 November 2002 including the daughter as a dependant. As both appellants were barred by the operation of s 48A of the Act the application was treated as a request under s 48B and that was finalised as 'not referred' on 28 November 2002. 9 The appellants were taken into immigration detention on 14 January 2003. Following claims made by the father that an appeal had been lodged with the Federal Court and that a hearing was scheduled for 14 March 2003, it was confirmed that an appeal had been lodged on 21 November 2002. That was in fact an application for review of the decision to refuse the daughter's protection visa. The appellants were then granted Bridging Visa Es and released from immigration detention. The Federal Court dismissed the application for judicial review of the Tribunal's decision affirming the refusal of a protection visa to the daughter. That decision was made on 20 August 2003. 10 On 11 September 2003, a further application for judicial review was filed in the High Court. That was withdrawn on 16 December 2003. The bridging visas ceased on 13 January 2004. 11 On the afternoon of 28 June 2004, the appellants attended the Department's office in Cairns requesting advice on their current visas and response to faxes which the father had sent to the Minister's office on 25 May and 14 June 2004. The father was advised, at the Department's office in Cairns, of their unlawful non-citizen status and they were detained. They were transferred to Brisbane on 29 June 2004 for removal action. The Judicial Review Application of July 2004 12 On 2 July 2004, an application was lodged in the name of both appellants in the Queensland District Registry of the Federal Court. The application sought orders in the following terms: '1. The above Applicants should be released within 24 hours from detention. 2. The applicants have a right to leave (sic) on their property with the residential address of Dimbulah Q 4872 until all court cases are final and conclusive decided (sic). 3. The Registrar serve this application & affidavit to Respondent. (sic)' 13 There was an affidavit in support of the application sworn by the father. He said in that affidavit that he and his daughter had been illegally detained on 28 June 2004 at the office of the Department at Cairns. He said that at the time of their detention nobody told them the reason for it. He also claimed he was refused contact with the German Embassy and also refused the opportunity to make a phone call to an attorney or to have a lawyer or interpreter. He said he had never received any correspondence from the Department that any visa had expired or had been cancelled or was invalid or that he had to leave Australia. He said that at the time there were still valid applications and appeals before the Federal Court in Brisbane and the High Court in Canberra. One of the appeals was said to be from a decision made by Cooper J. He also said there was a pending application for a humanitarian visa for his daughter which had been made on 2 July 2003. A further application had been made on 18 November 2002 to the Department and that application had not been determined. The nature of that application was not specified in the affidavit. He then referred to another application made to the High Court for prohibition, to prohibit the Minister from deporting the appellants or from taking any legal action in connection with their arrest, detention or deportation. 14 He referred to two Federal Court files Q51/2001 and Q183/2002 in which he said no decision had been made in respect of their appeals to decide 'the main question of the applicants are refugees or not, or to affirm the previous appellate decision, or to accept or to deny our staying in Australia' (sic). He then went on to refer to conversations with departmental officers. He asserted that he was entitled to call the German Embassy, have access to a lawyer and a judge or a court of law and to have in writing the reasons for his detention. 15 The matter came on before Kiefel J on 5 July 2004 for directions. A transcript of the exchanges between her Honour and the father is set out in the appeal book. In the event, her Honour, after hearing from counsel for the Minister, said she was satisfied on the material that had been put before her that he did not have any current outstanding applications or appeals before the Court. She said that there was no jurisdictional basis for his application and that the application would be dismissed with costs. The Appeal to this Court 16 The appellants have appealed against Kiefel J's decision. The notice of appeal sets out extensive grounds. None of the grounds discloses any basis for interfering with her Honour's decision which we take to have been a decision to dismiss the application under O 20 as showing no reasonable cause of action. 17 The Court was sent a notice dated 3 August 2004 from the appellants, signed by both of them, entitled 'NOTICE OF ADJOURNMENT'. That notice said, inter alia: Take Notice that the Applicants cannot appear before FULL COURT on 6 August 2004. The oral hearing will be adjourned to a later date in September....' Various grounds for adjournment were then set out. They included the following: 1. The daughter is a minor, not legally represented and intends to find a barrister to represent her. 2. The appellants have not received copies of the relevant court file as requested so that they could give them to lawyers to prepare their case. 3. 'The Appeal Book of the applicants was not made and no agreement hereof is made or signed because of our denial of access to the above File. The registrars were always and since three weeks inactive for us.' 4. 'The Registrars Bill Bow and Tom Morgan of the Federal Court refused to perform duty according to the Rules of the Federal Court, deny our access to Information's, Court file, to give applications and forms, like for exemption of fees, forms for witnesses and so on.' (sic) The notice went on to say that an oral hearing to give evidence and to have evidence with witnesses and cross examination of witnesses 'must be reserved' prior to the final hearing. The Notice of Adjournment which, in effect, asserts a right to adjournment, shows no basis for an adjournment and the appellants have not appeared. 18 On the hearing of the appeal, the appellants' names were called outside the Court. There was no appearance. Counsel for the respondent then tendered an affidavit. The affidavit was sworn by a solicitor for the respondent who indicated that he had sent a draft appeal book index to the father and that he had subsequently had a telephone conversation on 5 August 2004 with an Immigration Detention Officer at the Villawood Immigration Detention Centre. In the course of that conversation he pointed out to the Detention Officer that the matter was listed for hearing for today. He was informed that the father had said he would not be going to the appeal hearing when it came on. 19 Order 52 r 38A provides that if a party is absent when an appeal is called on for hearing, the Court may do a number of things. One of the things it can do, under O 52 r 38A(1)(d), is to proceed with the hearing either generally or in relation to any claim for relief in the appeal. In our opinion, the appropriate course is to deal with the matter on that basis and on its merits. On the basis that the appeal is manifestly hopeless and there is no appearance for the appellants, it should be dismissed with costs. 20 In our opinion the appeal is completely without merit. No adjournment should be allowed in the circumstances and the Court proceeds under O 52 r 38A(1)(d) to dismiss the appeal on the merits. The appellants must pay the costs of the appeal. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.