NANG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1288

FEDERAL COURT OF AUSTRALIA

NANG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1288 NANG OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 649 OF 2002 EMMETT J 22 OCTOBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N649 OF 2002

BETWEEN: NANG OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 22 OCTOBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the stay granted by order 3 of the orders of Emmett J made on 6 September 2002 cease to operate forthwith. 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 N649 OF 2002

BETWEEN: NANG OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 22 OCTOBER 2002

PLACE: SYDNEY

REASONS FOR DECISION 1 On 6 September 2002 I ordered that the application be dismissed and that the applicant pay the respondent's costs. However, I stayed those orders until 7 October 2002 and gave leave to the applicant to file and serve prior to 5 pm on that day any written submissions outlining any further material that would justify reconsideration of the matter. I ordered that, if the applicant filed any such submissions, the stay be extended until further order of the Court. I also gave the Minister leave to file submissions in response. 2 7 October 2002 was a public holiday in New South Wales. On 8 October 2002, the applicant filed further submissions. I have now considered those further submissions, together with submissions filed on behalf of the Minister. The Minister's submissions, in short, contend that the stay should cease to operate since there is no substance in any of the matters raised in further submissions filed on behalf of the applicant. 3 I indicated on 6 September 2000 that, on the material then before me, the application had no prospects of success and I gave my reasons for reaching that conclusion. Nevertheless, because there appeared to be some prospect of the applicant being able to obtain legal advice, I granted the stay to which I have referred. The further written submissions that were filed on 8 October 2002 were in fact prepared by Gilbert and Tobin, Solicitors and run to some thirty pages. They canvas a number of issues. 4 In the additional submissions, the applicant seeks to rely on an affidavit of Jane Louise Laity sworn 8 October 2002. The Minister opposes the reading of the affidavit. The affidavit deals with two subjects, being the transcription of recordings of the proceeding before the Tribunal and the preparation of a draft amended application which the applicant now seeks leave to file. 5 The Minister opposes the filing of an amended application on the grounds that no satisfactory explanation for the delay in seeking leave to file it has been given and that, in any event, there would be no utility in filing the amended application because the proceeding would still be doomed to failure. 6 On 26 July 2002, I had directed the applicant to file and serve any amended application on or by 15 August 2002. No amended application was filed and no leave was sought at the hearing on 6 September 2002 to file an amended application at that stage. The only basis now advanced on behalf of the applicant for the grant of leave is an assertion in Ms Laity's affidavit that, at some unspecified time, the applicant received assistance from a Mr Ignatius Assuzu in drafting an amended application and that he incorrectly assumed that the amended application had been filed. 7 The proposed amended application seeks the following relief: "A DECLARATION that the Federal Court of Australia has jurisdiction to review "privative clause decisions", as provided by s. 474 of the Migration Act 1958, for jurisdictional error and/or including denial of natural justice. A DECLARATION that s.474 of the Migration Act 1958, is invalid for being inconsistent with s. 75(v) of the Constitution to the extent that s. 474 precludes review of "privative clause decisions', by the Federal Court, for jurisdictional error and/or including denial of natural justice. A WRIT OF MANDAMUS directed to the Respondent ordering the Respondent, by himself or by other Member of the Refugee Review Tribunal, other than the Officer having made the decision under review, being a decision to refuse the Applicant on 25 June 2002 a protection visa and to determine the same according to law. A WRIT OF CERTIORARI directed to the Respondent and ordering the Respondent to reconsider the Applicant's protection visa, with regards to the said decision to refuse him on 25 June 2002." 8 The grounds stated in the document are as follows: "1. the decision-maker failed to make "a bona fide attempt to exercise its power". Particulars In the alternative, failed to recognise that the applicant continues to harbour protection fears in respect of the persecution he experienced in his native country. 2. The decision-maker was not acting in good faith in making the decision to refuse the applicant a protection visa on 25 June 2002. Particulars Having recognised and accepted the possibility that the applicant "was subjected to a degree of discrimination because of his cousin's activities". 3. Due to an administrative decision made by a Commonwealth officer where the ground for review is: (a) lack of reasonableness as to it's decision ("reasonableness review") (b) failure or constructive failure to comply with Migration Act 1958; or (c) denial of natural justice in respect of legislative procedure. Particulars As above." 9 In the absence of any satisfactory evidence of an explanation concerning the failure to file the document, I would be disposed to refuse leave. In any event, while grounds 1 and 2 appear to be an attempt to specify grounds that might fall within the principles as set by Dixon J in The King v Hickman ex parte Fox and Clinton (1945) 70 CLR 598, the particulars furnished do not indicate circumstances that could bring the case within those principles. Accordingly, I would refuse leave. 10 The applicant seeks to rely on the transcription of the recording of the proceeding before the Tribunal in support of his contentions that a reconsideration of the matter is justified. The applicant contends that the transcript demonstrates that: · no enquiry was undertaken of the applicant in respect of a claimed interview with an officer from a national security agency, · there was a failure to take into account the applicant's sur place claim on cumulative grounds; and · there was a failure by the Tribunal to ask relevant questions and undertake adequate inquiry.