NAUH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 77

FEDERAL COURT OF AUSTRALIA

NAUH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 77 NAUH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1701 of 2004 WILCOX J 2 FEBRUARY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1701 of 2004

BETWEEN: NAUH

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WILCOX J

DATE OF ORDER: 2 FEBRUARY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for leave to appeal be dismissed. 2. The applicant pay the respondent's costs of the application. 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 NSD 1701 of 2004

BETWEEN: NAUH

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WILCOX J

DATE: 2 FEBRUARY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT WILCOX J: 1 The document that brings this matter before me today was filed on 19 November 2004. In form it is a notice of appeal, but I think it is clear that the applicant needs leave to appeal to this Court. The decision under challenge was an interlocutory order made by Federal Magistrate Barnes in the Federal Magistrates Court of Australia on 10 November 2004. 2 The applicant is a national of Bangladesh. He came to Australia in 2001. Some six months after his arrival, he lodged an application for a protection class XA visa on the basis that he was a refugee within the meaning of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. His application was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs and he applied to the Refugee Review Tribunal ('the Tribunal') for review of the delegate's decision. After an oral hearing, a member of the Tribunal announced a decision on 16 June 2003 to affirm the delegate's decision not to grant a protection visa to the applicant. 3 The applicant sought review of the Tribunal's decision by filing an application in this Court on 30 July 2003. The matter was remitted to the Federal Magistrates Court. 4 On 5 September 2003 the Federal Magistrates Court wrote to the applicant notifying him of a hearing date, namely Wednesday, 18 August 2004. On that day, the matter was listed before Barnes FM, but the applicant did not attend. A Court officer contacted the applicant by telephone. He stated he would be at the court within half an hour but he did not arrive within that time. Thereupon, Barnes FM made an order dismissing the application pursuant to rule 13.03AC of the Federal Magistrates Court Rules. The magistrate directed the solicitor for the Minister, who was in attendance, to send a letter to the applicant advising him of the order and the effect of rule 16.05 of the Federal Magistrates Court Rules in relation to setting aside an order of dismissal. She instructed the solicitor that the letter should indicate the necessity for the applicant to make any application within 28 days of that day. Apparently, such a letter was sent; but no application was made until 29 October 2004, after the applicant had been detained by officers of the Department of Immigration and Multicultural Affairs. 5 The application of 29 October 2004 asked the Federal Magistrates Court to make an order setting aside the dismissal order that had been made on 18 August 2004. That application came before Barnes FM on 10 November 2004. The applicant attended on that day. 6 In dismissing the application heard on 10 November 2004, her Honour gave attention to two issues. The first issue was the reason why the applicant failed to attend court on 18 August 2004. The applicant did not suggest he had been unaware of the hearing date. He said he was ill on that day. However, he provided no other evidence of an illness and her Honour noted no such claim had been made when he had been contacted by telephone on 18 August 2004. 7 The applicant told me today that he came to the court on 18 August 2004, but he arrived later than he had expected because the bus was late. It is not clear to me that the magistrate was ever given that version of the events of 18 August 2004. Whether or not she was, her Honour was not impressed by the applicant's explanation of his failure to attend on 18 August 2004. Her Honour was also unimpressed by the fact that the applicant had failed to make his application under rule 16.05 of the Federal Magistrates Court Rules within the 28 day period; and in particular only after he had been detained by officers of the Department. 8 The second matter taken into account by the magistrate was the prospects of any application for judicial review being successful. Her Honour noted the applicant had not put anything before her to establish he had any prospect of establishing any ground for review of the Tribunal decision. 9 This morning I asked the applicant whether he wished to indicate any error in the approach taken by the learned Federal Magistrate. He put nothing, in response to that question, by way of criticism of the magistrate's decision. When I asked him about his case for judicial review of the Tribunal's decision, I explained to him that this Court could not review the Tribunal's findings of fact. I explained the Court could intervene only if it was satisfied that the Tribunal fell into some error of law or had failed to follow the required procedures. I asked the applicant whether he wished to make any criticism of the law or the procedure the Tribunal had applied. 10 In response to that invitation, the applicant told me that he thought the Tribunal was wrong in thinking his papers were faked. He also said that the Tribunal asked him a lot of questions - I gather he thought too many questions - and at the end the Tribunal did not clearly indicate what would be done. He said the Tribunal subsequently dismissed his case. 11 It seems to be the fact that the decision of the Tribunal was given on a date later than the oral hearing. It is also apparent, from the Tribunal's reasons, that the Tribunal member did ask the applicant a considerable number of questions. However, there is nothing in the Tribunal's reasons to indicate the questioning went beyond what was reasonable and necessary in order to test the accuracy of the applicant's claims. The questioning does not appear to have gone beyond proper limits of relevance and no complaint is made of the manner or tone of the questioning. 12 I see nothing in the reasons to cause disquiet about the conduct of the oral hearing. Nor do I see anything in the reasons that suggests the Tribunal fell into any error of law or failed to follow the proper procedures. In short, I see no basis for an argument that the Tribunal fell into jurisdictional error. I agree with the view of the magistrate, set out at para 10 of her reasons: 'There is nothing to indicate that he has any prospect of establishing any ground of review.' 13 Like the magistrate, I am unimpressed by the manner in which the applicant handled his case in the Federal Magistrates Court. If I felt there was an arguable case, in favour of jurisdictional error, I might be inclined to feel the applicant's deficiencies in prosecuting the case should have been overlooked. However, it seems to me there would be no useful purpose in the magistrate deciding to permit the application to be reinstated. Accordingly, I am of the opinion that the discretion exercised by the magistrate on 10 November 2004 did not miscarry. It follows that I should reject the application for leave to appeal. 14 I dismiss the application for leave to appeal and order that the applicant pay the respondent's costs of that application. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.