NACS of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1815

FEDERAL COURT OF AUSTRALIA

NACS of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1815 NACS OF 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 2113 OF 2005 EDMONDS J 5 DECEMBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2113 OF 2005

BETWEEN: NACS OF 2001

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EDMONDS J

DATE OF ORDER: 5 DECEMBER 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.

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 2113 OF 2005

BETWEEN: NACS OF 2001

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EDMONDS J

DATE: 5 DECEMBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT GIVEN EX TEMPORE (REVISED FROM THE TRANSCRIPT)

Edmonds J: 1 This is an application for leave to appeal from the judgment of Federal Magistrate Smith handed down on 18 October 2005. The applicant filed his application for leave to appeal in this Court on 3 November 2005. That was, in my view, the correct course for the applicant to take because the judgment of the Federal Magistrates Court was interlocutory in nature, in that it involved the Federal Magistrate dismissing the applicant's application as an abuse of process pursuant to rule 13.10(c) of the Federal Magistrates Court Rules. 2 Leave is required to appeal against such an interlocutory judgment. In Décor Corporation v Dart Industries (1991) 33 FCR 397, the Full Court considered that the principles discussed in Niemann v Electronics Industries Limited (1978) VR 431 provide general guidance which a court should normally accept on applications for leave to appeal. 3 The two considerations for which Niemann is authority are (1) whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court; and (2) whether a substantial injustice would result if leave were refused, supposing the decision to be wrong. 4 It may be observed that the court in Décor also approved what Burchett J had said in Sharp v The Commissioner of Taxation (1999) ATC 4184 – 4186 where his Honour said: 'The sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations.' 5 Having reviewed the reasons for judgment of the Federal Magistrate below, I have reached the conclusion that in the exercise of his discretion to dismiss the proceedings as an abuse of process no error can be found. In other words, the exercise of his discretion did not miscarry. 6 The draft grounds of appeal which are set out in the applicant's outline of submissions are as follows. 7 The first ground of appeal was that there was a denial of natural justice by reason of the Refugee Review Tribunal ('the Tribunal') failing to give the applicant an adequate opportunity to respond to the allegation that a photograph was fraudulent. That matter was dealt with at first instance in this Court on the previous occasion by Hill J. His Honour held that there was no denial of natural justice to the applicant in the circumstances of the case and dismissed the application. 8 The second ground of appeal was stated to be that there was a jurisdictional error when the Tribunal said that: 'Warrants such as those the applicant presented are not generally available to the public.' 9 The ground of appeal states that there is a note to the independent report which states that the warrant is obtainable by the defendant's lawyer. That may be so but, having regard to the context in which those words appear at page 15 of the Tribunal's reasons at lines 32 and 33, it is clear, in my view, that even accepting what the independent report states about the ability of a defendant's lawyer to obtain a copy of the warrant, what the Tribunal there says does not constitute jurisdictional error. 10 The third draft ground of appeal is put as follows: 'The Tribunal did not give any weight to the documents such as court and police documents those I submitted before the Tribunal believing that there is a high range of fraudulent documents available in Bangladesh. The Tribunal said in its decision that "Applicant has submitted forged court and police documents to fabricate a case for the granting of a protection visa."' 11 Nothing which appears in this draft ground of appeal provides, in my view, any basis for an allegation of jurisdictional error. I would therefore conclude that if leave were to be granted in this case, the prospects of any appeal succeeding would be negligible. The applicant has had made available to him the judicial processes and mechanisms in this country to enable him to maximise the possibility of satisfying the criteria for refugee status. Many other applicants do not get the opportunities that have been afforded to the applicant. I therefore do not believe that there is any substantial injustice resulting from a refusal to grant leave in the face of the judicial facilities that the applicant has had available to him. For those reasons I refuse leave. 12 I will order that the applicant pay the respondent's costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.