A31 of 2003 v Minister for Immigration - [2005] FMCA 644

FEDERAL MAGISTRATES COURT OF AUSTRALIA

A31 of 2003 v MINISTER FOR IMMIGRATION

[2005] FMCA 644

MIGRATION – Application for order nisi seeking writs of mandamus, prohibition and certiorari in relation to decision of Refugee Review Tribunal – non–appearance by solicitor for Applicant – unparticularised draft order nisi – whether arguable case for relief – application refused.

Migration Act 1958

Applicant:

APPLICANT A31 OF 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 3446 of 2004

Judgment of:

Barnes FM

Hearing date:

12 May 2005

Delivered at:

Sydney

Delivered on:

12 May 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Simon Diab & Associates (did not appear)

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the application for an order nisi seeking a writ of mandamus, a writ of prohibition and a writ of certiorari be refused.
That the applicant pay the respondent's costs fixed in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3446 of 2004

APPLICANT A31 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

These proceedings were commenced by draft order nisi filed in the High Court on 16 January 2003 seeking review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the first respondent refusing to grant the applicant a protection visa.
The draft order nisi raises six unparticularised grounds expressed very generally as a breach of natural justice, an error of law, non-compliance with procedures, improper exercise of power, no evidence and that the decision was contrary to law. The supporting affidavit does no more than repeat the grounds and attach the decision of the Refugee Review Tribunal.
On 1 July 2003 the matter was remitted to the Federal Court. Hayne J who ordered that the application for an order nisi proceed in the Federal Court as if the steps already taken in the High Court had been taken in that court. On 1 October 2004 the matter was transferred by Beaumont J to this court. His Honour required written submissions from each of the parties as to whether or not the matter should be transferred to this court and gave a judgment in relation to his decision to transfer the matter. Consequential orders were made that the application for an order nisi proceed in this court as if the steps taken in the Federal Court had been taken in this court.
Thereafter there were two directions hearings before a Registrar in this court. There was some confusion, it appears, in relation to the first occasion. On the second occasion orders were made for the parties to file and serve written submissions. The application was listed for hearing today, 12 May 2005. The applicant was represented in this court by a solicitor (albeit not the solicitor who had acted for him in the High Court proceedings).
The matter then came before me on 15 March 2005 in a directions hearing. The solicitor for the applicant appeared on 15 March 2005, at which time the counsel for the respondent canvassed, at some length, significant issues about the nature of the unparticularised and general grounds and the nature of the proceedings as an application for an order nisi (as distinct from an application for final orders). It was confirmed on that day that the matter would proceed today as an application for an order nisi.
The applicant was ordered to file further affidavit evidence by 13 April 2005. None was filed. He was ordered to file written submissions 10 days before the hearing. None were filed. Nor has there been any contact, of which I am aware, between the applicant's solicitor and the Registry. I am informed from the bar table that there has been no contact by Mr Diab, the solicitor for the applicant, with the solicitors for the respondent, albeit that they had left a message with him to contact them on 14 April 2005.
When the matter came before the court today there was no appearance by or for the applicant. It is now over 15 minutes later. There has still been no appearance for the applicant.
In such circumstances, the court has power, under Rule 13.03A of the Federal Magistrates Court Rules, to proceed in a number of ways. The solicitor for the respondent asks that, in the circumstances of this case, rather than simply dismissing the matter for non-appearance under Rule 13.03A(c), I proceed under Rule 13.03(A)(d) with the hearing of the application for an order nisi. I consider that given the background to these proceedings, particularly what occurred in the directions hearing before me on 15 March 2005, it is appropriate that I proceed to determine the application for an order nisi.
The test then is whether the applicant has shown an arguable case for final relief. In the absence of written submissions or any attendance by the solicitor for the applicant or, indeed, the applicant himself, then it is a question of whether on the material before the court, which consists of the draft order nisi and the affidavit and annexures, the applicant has shown an arguable case for final relief.
This is not a case in which an applicant is self-represented. The applicant had representation when he commenced the proceedings. Nonetheless, the grounds are expressed in general and unparticularised terms and, on its face, the draft order nisi does not establish any arguable case for final relief. No affidavit evidence or written submissions have been filed. Further, when one considers the decision of the Refugee Review Tribunal, a decision handed down on

19 December 2002, it is apparent that the applicant failed essentially because of the view that the Tribunal took of his credibility.
The applicant is a citizen of Nepal who had claimed to fear persecution primarily because he was a supporter or member of the Communist Party of Nepal, Maoist (CPN(M)), because of his affiliation with this organisation and his supporting activities. However, the Tribunal found, for reasons which it gave, that the applicant was not a credible witness. It accepted only his background identifying claims, and gave extensive reasons, open to it on the material before it, for not accepting his claims to be a member or supporter of the CPN(M) I note in that respect that credibility is a matter for the Tribunal par excellence and provided that its reasons are open to it on the material before it, no error will be apparent. It is also clear that the Tribunal went on to address the other claims raised by the applicant, albeit that some of those were raised in general terms at the Tribunal hearing (such as a claimed fear that he would be “discarded” by Hindu fundamentalists for pleading the abolition of the caste system in Nepal and that he feared persecution for reason of religion and membership of a particular social group).
In these circumstances the applicant has not established that there is an arguable case in relation to any of the grounds set out in the draft order nisi. Taking into account the Tribunal decision, there is nothing to suggest that the applicant has an arguable case that the Tribunal fell into jurisdictional error on any of the grounds in the draft order nisi. I consider that the appropriate order to make is to refuse the application for an order nisi.

RECORDED : NOT TRANSCRIBED

The other issue is costs. It is appropriate that the unsuccessful applicant meet the costs of the respondent.
The parties consented to the original remission of the application from the High Court to the Federal Court on the basis that the costs of the application to the date of remission be according to the scale applicable to proceedings in the High Court and thereafter according to the scale applicable to the Federal Court and in the discretion of the court. No order was made as to who was to be responsible for any costs. There is nothing in the circumstances before me to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent.
The respondent seeks costs in the sum of $4,000. While calculated as a lump sum this amount is appropriate to encompass costs on the basis specified in the High Court and for the Federal Court proceedings as well as being in accordance with the power of this court to set the amount of costs under Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
There were a considerable number of appearances in court, as I have outlined above. It was necessary for written submissions to be prepared in relation to the transfer of the matter to this court, and there was extensive argument and an appropriate representation by counsel on behalf of the respondent at the directions hearing in relation to the nature of these proceedings and the manner in which an application for an order nisi which commenced in the High Court should proceed before this court after remittal by the Federal Court.
In all of the circumstances of this case I consider that the amount sought is appropriate and is sufficient to encompass what was consented to in the initial remission from the High Court to the Federal Court as well as the costs incurred in this court.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 20 May 2005.