NBGI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 882

FEDERAL COURT OF AUSTRALIA

NBGI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 882 NBGI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD 833 of 2005 BRANSON J 23 JUNE 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 833 of 2005

BETWEEN: NBGI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 23 JUNE 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The applicant's application for an extension of time in which to file and serve a notice of appeal be deemed to be an application for leave to appeal from the judgment of the Federal Magistrates Court in SYG 1818 of 2004 dated 22 March 2005. 2. The applicant be granted leave to appeal from the judgment of the Federal Magistrates Court dated 22 March 2005. 3. The costs of this application be costs in the appeal.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 833 of 2005

BETWEEN: NBGI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE: JULY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 In this case the applicant has completed a form appropriate for seeking an extension of time in which to file and serve a notice of appeal. As the applicant's application to the Federal Magistrates Court for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') was dismissed because of his failure to comply with an order of the court, he is not able to institute an appeal in respect of that dismissal without the leave of this Court (s 24(1A) of the Federal Court of Australia Act 1976 (Cth)). 2 For the reasons set out below I consider it appropriate to deem the applicant's application to be an application for leave to appeal and to grant that leave. 3 On 22 March 2005 a Federal Magistrate made orders in Chambers in the absence of the parties as follows: '1. The application be dismissed pursuant to Rule 13.03(2)(b)of the Federal Magistrates Court Rules 2001 (Cth) for failing to comply with the orders of the Court dated 25 January 2005. 2. The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $2000.' I note that that his Honour's order as entered incorrectly refers to rule 13.02(2)(b) of the Federal Magistrates Court Rules ('the Rules'). 4 The history of the applicant's application to the Federal Magistrates Court may be summarised as follows. 5 On 17 May 2004 the applicant filed an application in this Court seeking judicial review of a decision of the Tribunal. On 31 May 2004 a Registrar ordered the applicant to file an amended application giving full particulars of each ground of review relied upon by 2 August 2004. On 2 June 2004 an order was made transferring the proceeding to the Federal Magistrates Court. On 16 June 2004 the applicant filed an amended application in which he re‑iterated his claim to be entitled to a protection visa. 6 On 25 January 2005 Lloyd‑Jones FM made orders including orders that the applicant file and serve an amended application giving complete particulars of each ground to be relied upon by 28 February 2005 and that the matter could be dealt with by Lloyd‑Jones FM in Chambers for summary dismissal if the applicant did not file an amended application as ordered. 7 On 8 February 2005 the applicant filed another amended application. It contained the following grounds: '1. RRT failed to look at the fact both subjectively and objectively and ignored the truth that the applicant has genuine and well‑founded fear of persecution upon returning to China. 2. RRT was merely seeking reasons to decide against the applicant rather than considering the case fairly and reasonably based on the information put before it. 3. RRT failed to consider the fact on the applicant's specific circumstances instead of looking at the case unfairly and generally based on the so‑called country's information.' 8 By a letter dated 2 March 2005 addressed to the Associate to Lloyd‑Jones FM the respondent's solicitor referred to the orders made by his Honour on 25 January 2005 and said: 'We note that on 8 February 2005 the Applicant filed an amended Application purporting to comply with Order 1 above. Upon our review of the amended Application, the Applicant merely cavils with the evidentiary findings of the Tribunal and as such is seeking impermissible merits review. We note that the Applicant has not fully particularised each ground of review relied upon. In the circumstances we seek an order pursuant to the terms of Order 3 above, that the Application be dismissed by his Honour in chambers.' 9 His Honour thereafter made the orders set out in [3] above without hearing from the parties further. His Honour prepared written reasons for judgment in respect of the above orders dated 22 March 2005. 10 Rule 13.03 of the Rules provides: '(1) This rule applies if a party fails to take a step required by these Rules or to comply with an order of the Court. (2) Subject to any other order or transfer the Court may, on the application of another party in the proceeding or of its own motion, make an order: (a) that the step be taken within a stated time; or (b) to end the proceeding or dismiss a response. (3) The Court may make the order sought or another order that it considers appropriate.' 11 In my view it is far from clear that either s 13 of the Federal Magistrates Act 1999 (Cth) ('the Act') or rule 13.03 of the Rules authorised the procedure adopted by the Federal Magistrates Court in this matter. In particular it is not obvious that either the Act or the Rules authorised –