NAEJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1356

FEDERAL COURT OF AUSTRALIA

NAEJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1356

NAEJ OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL

AND INDIGENOUS AFFAIRS

N 687 OF 2002 LINDGREN J 31 OCTOBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 687 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NAEJ OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 31 OCTOBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant 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 687 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NAEJ OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE: 31 OCTOBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 Upon this appeal from the Federal Magistrates Court (NAEJ v Minister for Immigration [2002] FMCA 113) being called on for hearing, the appellant has not appeared. For more than one reason the appeal should be dismissed. 2 On 3 February 2000 a delegate of the respondent ("the Minister") decided to refuse to grant a Protection Visa to the appellant. On 2 March 2000 the appellant applied to the Refugee Review Tribunal ("RRT") for review of that decision. On 21 January 2002 the RRT made a decision affirming the decision not to grant a Protection Visa, the RRT's decision being handed down on 13 February 2002. On 13 March 2002 the appellant lodged in this Court an application for judicial review of the RRT's decision. On 2 May 2002 the proceeding was transferred to the Federal Magistrates Court of Australia. After a hearing on 13 June 2002, Federal Magistrate Raphael dismissed the application with costs on 21 June 2002, at the same time providing reasons for judgment. 3 On 11 July 2002 the appellant filed in this Court a notice of appeal. The first ground in the notice was that his Honour "failed to find error of law, actual bias and relief under Section 39B of the Judiciary Act 1903 [sic]". The second ground of appeal was as follows: "The applicant is a genuine refugee under the UN Convention and sub-class 866 of the Migration Act 1958, but the authority has not considered applicant's claims and he has been refused to remain in Australia permanently [sic]." 4 On 7 August 2002 I fixed the proceeding for hearing before me on Tuesday, 29 October 2002 and directed the appellant to file any amended notice of appeal by 22 August 2002 and written submissions five days prior to the hearing date. He filed neither. 5 On 24 October 2002 the appellant sent by facsimile to the Registrar of the Court a letter and accompanying medical certificate. In the letter he stated that he was "unable to attend the interview" on 29 October and had attended St Vincent's Hospital the preceding week for a "full check up" and had been referred to a doctor. He requested another date for his "interview". The accompanying doctor's certificate dated 23 October 2002 stated that the appellant was suffering from "food poisoning and general weakness" and was unable to work from 23 October 2002 to 30 October 2002. The certificate did not specify the kind of work the appellant was unable to do. A medical certificate that a person is unable to work is not illuminating as to whether the person is able to attend court and to participate in a hearing. Nonetheless, I vacated the hearing date and fixed the proceeding for hearing today, being the first day after the period covered by the medical certificate. 6 Yesterday, 30 October, the appellant sent by facsimile a further letter to the Registrar of the Court asserting that he was "very sick for general weakness, food poisoning [sic]", had an eye infection, and could not attend Court today. His letter was accompanied by two medical certificates. One letter dated 29 October 2002, from the Sydney Eye Hospital, was to the effect that he was unfit to work from 29 October 2002 to 31 October 2002 due to "decrease vision LC". The second medical certificate enclosed stated that he would be unfit for "duty" from 30 October 2002 to 15 November 2002 and was suffering from "(L) eye vision disorder". The "duty" for which the appellant is unfit is not identified. Nor do I know the nature or effect of the left eye vision disorder. 7 Pursuant to my instructions, my Associate informed the appellant yesterday that I was not prepared to adjourn the hearing again on the basis of these certificates and the appellant informed my Associate that he would not attend Court today. 8 The matter should proceed to hearing. The medical evidence does not persuade me that the appellant cannot attend Court and participate in the hearing. In the exercise of my discretion given by Order 52 rule 38A(1)(c) of the Federal Court Rules, I will dismiss the appeal for non-appearance of the appellant. But I will indicate additional considerations which lead me to exercise the discretion in that way. 9 First, on the face of the reasons for decision of Federal Magistrate Raphael, I do not think there is any substance in the suggestion that his Honour erred by failing to find error of law or actual bias on the part of the RRT. 10 Secondly, the RRT's decision is a "privative clause decision" within the meaning of subs 474(2) of the Migration Act 1958 (Cth) ("the Act") and the jurisdiction of this Court to interfere is confined to that given by s 39B of the Judiciary Act 1903 ("Cth"). The only basis on which a privative clause decision can be successfully attacked under s 39B is "jurisdictional error". There will be jurisdictional error if any one of the three conditions identified by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616 is not satisfied. Those conditions are that: (a) the decision maker made a "bona fide attempt to exercise its power"; (b) the decision "relates to the subject matter of the legislation"; and (c) the decision is reasonably capable of reference to the power given to the decision-maker. (See NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 ("NAAV"). See too NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294 and Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1108.) 11 A privative clause decision will also not be protected from judicial review if it contravenes an "inviolable limitation or constraint" on the decision-maker (NAAV at [12] per Black CJ, at [619] per von Doussa J). 12 There is nothing before the Court to suggest that the three Hickman conditions were not satisfied or that there was a contravention of the kind mentioned, in the case of the present decision of the RRT. Accordingly, the learned Federal Magistrate was correct to dismiss the application before him in reliance on s 474 of the Act. 13 For the above reasons the Court orders that: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.