FEDERAL COURT OF AUSTRALIA NACA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 659 MIGRATION – leave to appeal interlocutory judgment of Federal Magistrate – where appellant's application dismissed under Order 32 rule 2 of the Federal Court Rules due to non-attendance at hearing can be appealed out of time – whether appellant should be granted an extension of time and granted leave to appeal. OBJECTION TO COMPETENCY – whether orders are interlocutory or final. LEAVE TO APPEAL – with extension of time. Judiciary Act 1903 (Cth) s 39B Federal Court Rules Order 32 rule 2, Order 52 rule 10, Order 52 rule 18(1) Federal Court of Australia Act 1976 (Cth) s 24(1A), 25(1A) Carr v Finance Corporation of Australia Ltd (No. 1) (1981) 147 CLR 246 Dai v Telecommunications Industry Ombudsman [2000] FCA 717 NAJC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 608 NACA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 630 OF 2003 HELY J 26 JUNE 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 630 OF 2003 BETWEEN: NACA APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: HELY J DATE OF ORDER: 26 JUNE 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appellant's motion for leave to appeal be dismissed. 2. The appeal be dismissed as incompetent. 3. The appellant pay the respondent's costs of the motion. 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 630 OF 2003 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: NACA APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: HELY J DATE: 26 JUNE 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellant is a citizen of India who arrived in Australia on 21 October 1998 travelling on a student visa. On 24 September 2002 the Refugee Review Tribunal ('the RRT') affirmed a decision of the Minister's delegate not to grant a protection visa to the appellant. The appellant claimed to fear persecution if returned to India by reason of his involvement in the People's War Group and some associated activities. He made a number of claims which, if believed, might amount to persecution, but the RRT did not believe any of these claims. The RRT concluded, for reasons which it gave, that the appellant had fabricated his claims and his history. 2 One of the claims which the appellant made to the RRT was that a priest, Father Daniels, could confirm his history. The RRT contacted Father Daniels, who was unable to give the confirmation of the appellant's claims which the appellant had foreshadowed. This was one of the number of factors which the RRT took into account in coming to the conclusion which it did. 3 On 11 October 2002 the appellant sought a review of that decision in the Federal Court under s 39B of the Judiciary Act 1903 (Cth). On 7 November 2002 the matter was listed for directions before a Registrar. The appellant appeared in person. A number of directions were given by the Registrar in the expectation that an order would be made for the transfer of the matter to the Federal Magistrates Court, including a direction that the matter be listed for hearing at 10 am on 4 April 2003 before a Federal Magistrate. 4 On 18 November 2002 Madgwick J made an order that the proceedings be transferred to the Federal Magistrates Court. On 5 December 2002 the Federal Magistrates Court wrote a letter to the appellant advising him that the matter had been transferred to the Federal Magistrates Court and that the matter had been set down for a final hearing on Friday 4 April 2003 before a Federal Magistrate on Level 18, Law Courts Building, Queens Square, Sydney. 5 On 4 April 2003 the matter was called on for hearing before Federal Magistrate Raphael. The appellant failed to appear. An attempt by the staff of the Federal Magistrate to contact him by telephone proved unsuccessful. The Federal Magistrate considered whether or not to adjourn the application, even though the appellant had not appeared but came to the conclusion that it was not appropriate to do so. The application was formally dismissed with costs under Order 32 rule 2. 6 On 23 April 2003 the appellant filed a Notice of Motion seeking to set aside the orders which had been made by Federal Magistrate Raphael on 4 April 2003. The appellant filed an affidavit explaining why he was not in attendance before the Federal Magistrate on 4 April 2003. The reason which was given in that affidavit was: 'The reasons for my absence are I wrongly noted in my form on the directions date it was 9 April 2003 at 10 am. I was prepared to go to court on 9 April. I was mentally and financially upset due to my present circumstances. I did not go through the letters properly when Federal Court sent me the letters. This is my mistake and I urge the Registrar and the Federal Magistrate to give me a chance for another hearing date.' 7 On 6 May 2003 the Federal Magistrate dismissed the application to set aside the order made on 4 April 2003. The Federal Magistrate correctly concluded that before those orders could properly be set aside there must be a reasonable excuse for the appellant's original non-attendance and there must be some purpose in re-hearing the case. The Federal Magistrate was not satisfied as to either of those matters. In particular, the Federal Magistrate was not satisfied that the appellant had an arguable case that the decision of the RRT was infected by jurisdictional error. This is because having considered the appellant's claims, the RRT rejected them for reasons which it gave and which were open to it. 8 At a directions hearing held on 18 June 2003 an issue arose as to whether the Notice of Appeal which was filed on 27 May 2003 was competent. The Minister filed a Notice of Motion on 20 June 2003 seeking an order pursuant to Order 52 rule 18(1) of the Federal Court Rules that the appeal be dismissed as incompetent. The appellant also filed a Notice of Motion which I am prepared to treat as being a motion seeking leave to appeal from the Federal Magistrate's decision, as well as an application for an extension of time within which to do so. 9 The questions which I have to decide are whether the judgment of Federal Magistrate Raphael given on 6 May 2003 is interlocutory, and if so whether leave to appeal should be granted from that decision, even though the application for leave to appeal is out of time. 10 Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) ('the Act') gives the Court jurisdiction to hear and determine appeals from judgments of the Federal Magistrates Court. Section 24(1A) has the effect that if the judgment sought to be appealed from is interlocutory, an appeal shall not be brought unless a judge gives leave to appeal. Pursuant to section 25(1A) of the Act, the Chief Justice has directed that the appeal from the decision of Federal Magistrate Raphael be heard before a single judge. Hence it is clear that I have power to deal both with the appellant's motion and the Minister's motion. Order 52 rule 10 of the Federal Court Rules provides that a motion for leave to appeal should be filed within seven days. 11 In my opinion, leave to appeal from the decision of the Federal Magistrate should not be given. If the only problem was the failure to seek leave within seven days, that failure could be readily excused given the appellant's ignorance of the workings of the Court system. But the appellant has not established that the Federal Magistrate made any error in refusing on 6 May 2003 to set aside the order which he made on 4 April 2003. 12 In my view, the decision to which the Federal Magistrate came was the correct decision in all the circumstances. It was incumbent upon the appellant to show that if he wanted the Federal Magistrate to reopen the case that there was some purpose in doing so. In other words he had to show an arguable case that the RRT's decision should be quashed on the grounds of jurisdictional error. The appellant did not do so. 13 When the matter came on for hearing before me I invited the appellant to put before me any reasons why the RRT's decision should be set aside. The only matter that the appellant pointed to is that the RRT based its decision on what Father Daniels had told it and he wanted to obtain more information from India to put before the RRT. There are at least two problems with this. The first is that the appellant wants to set aside the RRT's decision because it based that decision in part on evidence which the appellant asked it to consider. The RRT made no error in proceeding in the way in which it did. The second is that the appellant seeks in effect to reopen the factual questions before the RRT by introducing new evidence. That is not something which he is entitled to do. 14 For these reasons it seems to me that the appellant has not established any basis on which I could properly grant leave to appeal from the decision of the Federal Magistrate and I would not do so. 15 The decision of the Federal Magistrate is interlocutory in character notwithstanding that in practice it might be extremely difficult for the appellant to successfully mount a second application to reopen the case. The decision of the High Court in Carr v Finance Corporation of Australia Ltd ( No. 1) (1981) 147 CLR 246 establishes that decisions of this type are interlocutory in character. Further support for that proposition comes from the decision of the Full Court of this Court in Dai v Telecommunications Industry Ombudsman [2000] FCA 717. In NAJC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 608 Jacobson J assumed that leave to appeal against a decision refusing to set aside an earlier judgment dismissing proceedings under Order 32 rule 2 was required. 16 For these reasons I will dismiss the motion seeking leave to appeal. I uphold the Minister's application that the appeal be dismissed as incompetent. I dismiss the appeal for that reason. 17 The Minister seeks an order for costs. The usual order in cases such as this is that the appellant should pay the Minister's costs. The appellant says he has no money with which to pay any costs order and I am content to assume that that is so but that does not provide a sufficient reason for departing from the ordinary practice. Hence the order that I make is that the appeal be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate: Dated: 1 July 2003 The appellant appeared in person Counsel for the Respondent: Mr Patrick Reynolds Solicitor for the Respondent: Clayton Utz Date of Hearing: 26 June 2003 Date of Judgment: 26 June 2003