FEDERAL COURT OF AUSTRALIA NBGQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1513 NBGQ & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N869 OF 2004 JACOBSON J 18 NOVEMBER 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 869 OF 2004 BETWEEN: NBGQ FIRST APPLICANT NBGS SECOND APPLICANT NBGR THIRD APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: JACOBSON J DATE OF ORDER: 18 NOVEMBER 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant's motion is dismissed. 2. The appellants to pay the respondent's costs, fixed in the sum on $500. 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 869 OF 2004 BETWEEN: NBGQ FIRST APPLICANT NBGS SECOND APPLICANT NBGR THIRD APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: JACOBSON J DATE: 18 NOVEMBER 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application made by a notice of motion filed on 28 October 2004 that orders which I made on 10 September 2004 be set aside. The orders which I made on that day were that the application be dismissed under Order 32 Rule 2(1)(c) of the Federal Court Rules, by reason of the failure of the applicants to appear when the matter was called on for hearing. I also ordered the applicants to pay the costs of the proceedings. 2 The substantive proceedings were brought by an application filed in the court on 26 May 2004 seeking review of a decision of the Refugee Review Tribunal ("the RRT") made on 5 December 2003. On that date the RRT affirmed a decision of the delegate not to grant the applicants protection visas. 3 It is necessary to refer briefly to the reasons given by the RRT. The applicants are three female persons who are citizens of Fiji. They claimed to have a well-founded fear of persecution in Fiji on the ground of their Indian ethnicity and their religion. The claims which the applicants' made were diverse but they were dealt with by the RRT in its findings and reasons. One of the applicants, her sister and their mother, who are the three applicants in the proceedings, were in Australia between August 1996 and November 1996. The sisters came back to Australia from January to June 1997, then one of the sisters returned to Australia in late 1999, and on 4 February 2000, the other sister and her mother also returned to Australia. They lodged an application for a protection visa. On 4 October 2001, a delegate of the Minister refused to grant the protection visas. The decision of the RRT affirming the delegate's decision was made on 5 December 2002. 4 The RRT accepted that all of the applicants were in Australia before the attempted coup by George Speight in 2000. The RRT dealt firstly with a claim that related to a suggested eviction from their land in Fiji. The evidence which was given to the RRT was different from the basis upon which the protection visa had initially been sought. It is unnecessary to deal with it in any detail but it is sufficient to record that the RRT found that the applicants' house had been sold in Fiji without duress prior to the applicants coming to Australia. 5 Accordingly, the RRT did not accept a claim that the house had been unlawfully occupied or that the people who were said to occupy the house were their greatest fear or threat. Nor did the Tribunal accept that the applicant had a well-founded fear of persecution for a Convention reason from the people who had purchased their house. 6 The RRT then referred to a claim by the applicants that they fear for their general safety because they were females without a male member in their household. There was evidence that native Fijians had demanded money from one of the applicants in 1995 however the Tribunal said that the applicant did not claim or provide any evidence that the demands were threats for a Convention related reason. 7 The RRT considered a claim that the Government in Fiji was violating the Fijian Constitution and that there was a lack of stable democracy in Fiji. However, the RRT accepted independent country information to the contrary. That information stated that there was democracy in Fiji. The RRT accepted this over the generalised claims made by the applicants. The RRT said that while there may be some incidents of low level theft, law and order had been restored in Fiji after the Speight coup and that there was not a real chance that the applicants would experience serious harm amounting to persecution for a Convention reason. 8 It is apparent that this country information was put to the applicants. The reasons of the RRT at page 83 of the court book state that the RRT put to the applicants a range of independent country information including the statement that the 1997 Constitution had not been abrogated and an assessment by the Australian Embassy that there was no risk of institutionalised mistreatment of Indo-Fijians by the authorities and also that the assessment of a risk of mistreatment at the communal level was low. 9 It would therefore appear that there can be no suggestion of a denial of procedural fairness in relation to the finding which I have recorded. The RRT was satisfied that, based on the country information, democracy and law and order have been re-established in Fiji, that effective protection is available to Indo-Fijians and that those who instigated the attempted coup have been dealt with by the Fijian Government and the Fijian judicial system. The RRT was also satisfied that the Fijian Government is publicly committed to maintaining and protecting human and equal rights for all its citizens. 10 It therefore found that the chance that the applicants, as Indo-Fijians, would be subject to serious harm amounting to persecution either presently or in the foreseeable future, was remote. I note that although the RRT records that the claim seems to have been made not only on the basis of Indian ethnicity but also on the ground of religion, there is nothing in any of the material recorded in the RRT's reasons to suggest that there was any basis for a claim on the ground of religion. 11 The applicants filed an application for judicial review on 26 May 2004 which stated that the ground of the application was that the decision of the RRT involved: "An error of law being either an incorrect interpretation of the applicable law and/or an incorrect application of the law to the facts as found by the Refugee Review Tribunal." 12 There were nine "particulars" of the stated ground, however, the particulars were set out in very general terms. The particulars included the statement that the RRT had not accorded procedural fairness to the applicants, that the procedures required by law to be observed were not observed, and that the RRT had acted in bias. None of the particulars contain anything more than generalised assertions and do not disclose on their face any arguable case for jurisdictional error on the part of the RRT. 13 As I have said, when the matter was called on for hearing on 10 September 2004, there was no appearance for the applicants. I was satisfied on that occasion that the applicants had been notified of the hearing date. I referred in [3] of my reasons to the fact that the applicants appeared in person at a directions hearing before a Registrar on 21 June 2004, when the matter was listed for hearing. 14 The application to set aside my order was supported by an affidavit of one of the applicants, sworn on 28 October 2004. There is no evidence from any of the other applicants. The affidavit stated that at a date after 4 September 2004, the applicant received correspondence advising her that the matter had been dismissed. She corrected this evidence in the witness box, stating that she received the correspondence after 10 September 2004. The explanation which was given in the affidavit for the deponent's failure to attend the hearing was that she mistakenly assumed that her migration agent would be representing her at the hearing. 15 Ms Rayment, for the Minister, elicited from the deponent of the affidavit in cross-examination that the applicant had received correspondence and notice of the hearing on a number of occasions. Ms Rayment took the deponent of the affidavit through the correspondence. It is unnecessary to set out in detail all of the correspondence. It is sufficient to record that the applicant who swore the affidavit acknowledged that she had been present at the directions hearing on 21 June 2004 when the matter was listed for hearing before me. 16 She also said in cross-examination that on that date, the Registrar had told her that she had to be ready to present her case whether she was legally represented or not. The applicant did not have legal representation and the same position appears to apply to the other applicants who, as I have said, have not filed any evidence in support of the motion. The deponent of the affidavit was taken, amongst other things, to a letter of 22 June 2004 reminding her inter alia of the fact that the hearing date had been listed for 10.15 am on 10 September 2004 before me. 17 There was a further reminder given on 8 September 2004. The applicant acknowledged receiving this letter and indeed all of the correspondence to which she was taken by Ms Rayment. The applicant told me that she was informed after the directions hearing by her migration agent that she need not attend the hearing. She also told me that she had a conversation to the same effect with her migration agent on or shortly after 8 September 2004. 18 She said that she became aware that my judgment was given when she received a letter from the court dated 13 September 2004. She said that she received the letter on or about 14 September 2004 or 15 September 2004. 19 There is power in the court under order 35 rule 7(2)(a) to set aside an order made in the absence of a party. The principles upon which the discretion is to be exercised were referred to by Nicholson J in Registrar of Aboriginal Corporations v Murnkurni Womens Aboriginal Corporation (1995) 58 FCR 125 at 127 - 128. His Honour referred to well known authorities dating back, in Australia, to 1926 and in England to 1937. His Honour referred to a decision of Street CJ in Simpson v Alexander (1926) 26 SR (NSW) 296 at 301 - 302 and to the decision of the House of Lords in Evans v Bartlam [1937] AC 473. 20 The effect of those authorities which considered the exercise of the discretion to set aside a default judgment is that the primary consideration is for a defendant to show a prima facie defence on the merits. The cases to which Nicholson J referred were, of course, cases in which a defendant sought to be let in to defend. However, it seems to me that the same principle applies where, as in the present case, the applicants wish to be able to conduct an application which has been dismissed for a want of an appearance at the hearing. 21 There are authorities on this question dating back for many years and they include a decision of Dixon CJ, as his Honour then was, in Chitty v Mason (1926)32 ALR 328. His Honour pointed to the difference between judgments which are regularly obtained in good faith and judgments which are irregularly obtained or obtained in bad faith. The first class of judgments are not in general to be set aside save upon "an affidavit of merits" (at 329 - 330). That is to say a defendant must show an arguable defence on the merits and an applicant must show that the claim is at least an arguable one. 22 The authorities also point to the need for a person to be able to provide an explanation for their failure to appear in the proceedings. 23 There was no evidence adduced by the applicants to make good the proposition that there is an arguable claim. There was nothing in the deponents affidavit of 28 October 2004 which dealt with that question, nor did counsel who appeared for her today seek to elicit any such evidence from her in her evidence in chief. When I raised this gap with counsel, he asked for an adjournment for a short time to be able to obtain evidence from his client. 24 I put to the applicant's counsel that the application dated 26 May 2004 did not contain on its face any arguable claim of jurisdictional error. Counsel acknowledged that this was so and he referred me to his written submissions. He relied in particular on [17] of his written submissions which were dated 17 September 2004, which stated: "If this Court is of the view that the matter is better considered together with the issues raised by the Respondent as to the competency of the matter, the Applicants ask the Court to have the matter adjourned to a date by which further material could be filed by the Applicants and counsel properly apprised and instructed, addressing the issues raised by the Respondents." 25 It was put to me that counsel did not have sufficient time before the hearing to obtain instructions from his clients to seek to establish an arguable case of jurisdictional error. I considered carefully the claim for an adjournment and I decided to refuse it. I did so for two reasons. 26 Firstly, it seems to me that the reasons for the decision of the RRT are comprehensive. I looked at the reasons not only today but also before I went on to the bench on 10 September 2004 and I therefore have some familiarity with the reasons. I cannot see that there is any jurisdictional error apparent on the face of the reasons. This seems to me to be fatal to the substance of the application but it is also a matter which I have taken into account in the exercise of my discretion to refuse an adjournment. 27 The second reason why I thought it was appropriate to refuse an adjournment was that the matter has a substantial history. The applicants' written submissions refer to the fact that an application had been filed in the High Court for constitutional writs. That application was apparently dismissed by consent in May 2004. It appears that the matter was before Emmett J on or about 26 May 2004 when the application, which was remitted from the High Court was dealt with by his Honour on that date. 28 More importantly, the applicant has been aware since at least 15 September 2004 that the proceedings were dismissed by me on 10 September 2004 yet it was not until 28 October 2004 that the present application was filed. Whatever the difficulties the applicant may have had prior to that date by reason of her reliance on her migration agent, there has been ample opportunity to address the difficulties arising from fact that her claim was dismissed in early September. 29 Notwithstanding this, the question of whether the substantive application has any arguable basis was not addressed in her affidavit nor was it addressed by counsel who appeared for her today. In those circumstances, it seems to me that in the exercise of my discretion, an adjournment had to be refused. Accordingly, the position is that there is nothing to satisfy me there is any arguable claim of jurisdictional error. 30 Moreover, the explanation for the failure to attend before me on 10 September 2004 does seem to have difficulties. While I do not have any basis for rejecting the applicant's explanation that she relied upon her migration agent, the simple fact is that she was told on 21 June 2004 that she had to be ready to present her case on 10 September 2004 whether she was legally represented or not. I do not therefore find convincing her failure to attend before me on that date. 31 I do not accept her reliance upon her migration agent as a satisfactory explanation for her failure to be here personally on 10 September 2004. There is no evidence from any of the other applicants. It follows, in my view, that the application fails to satisfy the two considerations necessary to enliven my discretion to set aside the orders which I made on 10 September 2004. 32 Accordingly the motion is dismissed. I order the applicants to pay the costs of the motion which I note are to be fixed by agreement between the parties at the sum of $500. I certify that the preceding thirty two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 22 November 2004 Counsel for the Applicant: Mr A Kumar Counsel for the Respondent: Ms B Rayment Solicitor for the Respondent: Sparke Helmore Date of Hearing: 18 November 2004 Date of Judgment: 18 November 2004