NBAG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 848

FEDERAL COURT OF AUSTRALIA

NBAG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 848 NBAG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD488 OF 2005 BENNETT J 8 JUNE 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD488 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NBAG

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BENNETT J

DATE OF ORDER: 8 JUNE 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 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 NSD488 OF 2005

BETWEEN: NBAG

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BENNETT J

DATE: 8 JUNE 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a citizen of China who arrived in Australia on 8 March 2003 and applied for a protection visa on 18 March 2003. After a delegate of the respondent refused to grant him a visa, the applicant applied to the Refugee Review Tribunal (the 'Tribunal') for review of that decision. The Tribunal affirmed the delegate's decision and the appellant lodged an appeal in the Federal Magistrate's Court. 2 This is an appeal from a decision of a Federal Magistrate of 3 March 2005. 3 In a notice of appeal filed in relation to that decision it is said that the judgment of the Federal Magistrate was 24 March 2005. That was not the case. The appeal was filed on 30 March and it was therefore out of time. 4 Although the time involved was only short, a notice of objection to competency was filed by the respondent. The basis of that objection was not so much the six day delay, but the prospects of success of the appeal. 5 When the matter came before me on 28 April 2005 the solicitor for the respondent sought to proceed with the notice of objection to competency. I declined to proceed on that occasion and made orders for the final hearing of both the application for leave to extend time for filing a notice of appeal and, if granted, the substantive appeal itself. 6 I made directions that the appellant file and serve not only written submissions in support of both an application for leave to extend time and the substantive appeal but also an affidavit in support of the application. No affidavit was filed. A document entitled Applicant's Submissions was filed in time. I have ordered that the notice of appeal be treated as an application to extend time in which to appeal. 7 The appellant appeared before me this morning, assisted by an interpreter. When I asked why he had failed to comply with the orders of the court he said that his migration agent had told him that everything that needed to be done had been done. 8 When I asked him why his appeal had been filed out of time he said that his migration agent had been overseas. When I asked him what was the date, that the migration agent was overseas, he nominated a date in May. When I pointed out that the time I was talking about was March, he said that his migration agent had told him that the appeal could be filed within 28 days of the decision of the Federal Magistrate. 9 It is the case that the appeal was filed within 28 days of the Federal Magistrate's decision but that does not explain why the notice of appeal then contends for a different date of that judgment, which would have made the notice of appeal within 21 days. 10 It is open to me to dismiss the application and the appeal for failure to comply with the direction of the court. Pursuant to section s25(2B)(BB)(i) of the Federal Court of Australia Act 1976 (Cth). 11 Before I do so, however, I will consider the substance of the appeal for the purpose of determining whether there are any prospects of success on the application for leave to appeal out of time. 12 The notice of appeal which refers to the decision of the Federal Magistrate contains five grounds. To the extent that they are comprehensible, those grounds fall into two categories. They either have no relation to the decision of the Federal Magistrate in this case and/or make generalised assertions about what amount to a lack of bona fides on the part of the Tribunal, which are totally unparticularised. 13 When I asked the appellant on what basis he was making those allegations, he said that he could provide no assistance to the court in that regard. The appellant's submission does not provide any further assistance to the court. There is some recitation of the appellant's history, including a factual allegation that he was detained by the Chinese authorities, which is inconsistent with the information that was before the Tribunal. 14 The remaining grounds of the appellant's submission canvass findings of fact and seem to be an attempt to deal with the merits of his case. Another ground again raises what seems to be an attack upon the bona fides of the Tribunal but without any particulars and no support was given by the appellant orally. 15 A third ground alleges a failure to disclose country information. Again, this was not particularised, and it should be noted that the appellant did not attend the hearing before the Tribunal or provide any further information to the Tribunal. 16 When I asked the appellant what else he wished to say in support of his appeal, he commenced to give me a personal history including a history, of his family's involvement for many years with Falun Gong in China. This is either contrary to the factual statement that he gave to the Tribunal as the basis of his claims, or at best, is information that was not before the Tribunal. 17 While the invitation letter sent to the appellant at his residential address was returned to the Tribunal, the invitation sent to the address of his migration agent was not returned. I do not propose to deal with the Tribunal's decision in great detail. The Tribunal set out in its reasons the entirety of the appellant's written submission to it. The Tribunal found that it was not satisfied that the appellants claimed fear of persecution was either subjectively true or was well founded if it were. It goes without saying that the Tribunal was not satisfied that the applicant has a well founded fear of persecution within the meaning of the Convention. 18 The Tribunal noted, in assessing the appellant's subjective fear, that the appellant had declined a number of opportunities to expand on or defend his claims and to answer questions about them. Having come to its conclusion, the Tribunal added what it described as: '...a further fatal blow to the credibility of the applicant' which was the fact that the set of claims which the appellant used were identical to claims in nine other cases before the Tribunal all submitted by the same migration agent. 19 Before the Federal Magistrate, the appellant claimed that the Tribunal had erred in failing to give him a proper hearing and that it had breached s 426A of the Migration Act 1958 (Cth). 20 The appellant had also stated that his migration agent was to blame in not telling him of the hearing date. I find it extraordinary that, with the apparent failure of the migration agent to deal properly with the appellant's claim, if the appellant's assertions are correct, that the appellant has continued to retain that migration agent for his appeal. 21 The judgment of the Federal Magistrate dealt with each of the appellant's grounds of review before him and found that there was no substance in any of the complaints against the decision of the Tribunal. It is clear from the decision of the Federal Magistrate that the appellant's claims were carefully considered and I can see no error in that judgment. 22 In the circumstances, rather than make an order resulting from the failure of the appellant to comply with the orders of the court, accepting for this purpose that some aspects of the appellant's conduct were not his own fault but those of his migration agent, I find that the explanation for the delay in filing the notice of appeal in time is not sufficient but, further, that even if it were the case that it was, this appeal has absolutely no prospects of success. Accordingly, I refuse the application for leave to extend time in which to file the matters of appeal and I dismiss that application and the notice of appeal. 23 I order the appellant to pay the respondent's costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.