Applicant S1280 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 276

FEDERAL COURT OF AUSTRALIA

Applicant S1280 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 276

APPLICANT S 1280 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND ANOR
NSD 2050 OF 2005

ALLSOP J
20 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2050 of 2005

BETWEEN:

APPLICANT S 1280 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

20 MARCH 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

(1)       The application for leave be dismissed.

(2)       The applicant pay the first respondent's costs.

(3)The Refugee Review Tribunal be joined as a party as a second respondent to the principal proceedings below before the Federal Magistrates Court and to the application for leave to appeal.

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 2050 of 2005

BETWEEN:

APPLICANT S 1280 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	ALLSOP J
DATE:	20 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the applicant seeks leave to appeal from orders made by a Federal Magistrate on 21 July 2005 (see [2005] FMCA 1110). The affidavit in support of the application states (incorrectly) the fact that the application was dismissed under rule 16.05(2)(a) of the Federal Magistrates Court Rules. (Rule 16.05(2)(a) deals with setting aside orders made in absence of the party.) An outline of the reasons why the Federal Magistrate made the orders that he did on 21 July will explain the background of the matter.

2. Before the Federal Magistrates Court was an application seeking judicial review of a decision of the Refugee Review Tribunal (The ‘Tribunal’).  How that application came to the Federal Magistrates Court was as follows.  An application for a protection visa made in June 1999 was refused by a delegate of the Minister on 15 July 1999.  The applicant sought a review by the Tribunal which affirmed the decision of the delegate.  The Federal Magistrate's reasons recount that the Tribunal's views turned essentially on the rejection of the applicant's evidence.

3. On 8 October 2000 the applicant commenced judicial review proceedings in the Federal Court.  They were listed for hearing before Beaumont J on 14 December 2000.  The applicant did not attend that hearing and his Honour dismissed the application with costs.  The Federal Magistrate noted the fact that that application for review contained only broad and unparticularised grounds of review.

4. On 1 March 2001 an amended statement of claim was filed in the High Court joining the applicant as a represented party in the Muin and Lie representative.  The Federal Magistrate referred to the fact that the applicant retained that status until 2002 when Gaudron J in the High Court gave him leave to file an individual application for an order nisi. 

5. The applicant availed himself of this leave and filed an application for order nisi on 29 May 2003.  The application was supported by an affidavit which alleged a failure to accord procedural fairness.  The application was transferred to the Federal Court.  On 20 February 2004 Emmett J in the Federal Court refused the application and published reasons for doing so.  It should be noted that in relation to this dismissal the Minister had assured the Court that he would not make a submission in any future proceedings that there was not a satisfactory explanation for the delay between the period of joining the High Court proceedings and the refusal of the order nisi.

6. On 25 May 2004 the applicant commenced the proceedings that ultimately came before the Federal Magistrate last year in July 2005. The learned Federal Magistrate referred to the substance of the application in his reasons. The respondent Minister sought to have the application dismissed on a summary basis. This was refused by the Federal Magistrate on 11 October 2004 with reasons given on that date (see [2004] FMCA 742).

7. I notice that on that occasion there was no appearance by the applicant in his own matter. The Federal Magistrate referred to this fact and said that the Court had received a facsimile on the morning of the appointed date for hearing saying that the applicant was sick and could not attend and requested a changed hearing date.

8. After dismissing the Minister's motion for summary dismissal a further directions hearing was appointed.  The applicant attended that directions hearing and the Federal Magistrate gave directions for the preparation of the matter leading to the final hearing which was listed on 21 July 2005.  The Federal Magistrate recorded that the applicant signed the short minutes of order and the Federal Magistrate concluded that he was satisfied that the applicant was fully aware of the hearing on 21 July 2005.

9. The directions made in October 2004 included provision for the applicant to file affidavits, an amended application and written submissions.  The Federal Magistrate recorded that the applicant filed no affidavit evidence, in particular no evidence to make out any procedural fairness complaint and had not filed an amended application.  The applicant did file a document entitled "Statement" which was in the nature of a submission about the Tribunal's decision.

10. The Federal Magistrate recounted that on 19 July 2005 the Federal Magistrates Court received a facsimile from the applicant.  The Federal Magistrate recorded that that facsimile came from a Haymarket post office.  The Federal Magistrate recorded the text of the facsimile which was as follows:

    I have a hearing on Thursday 21 July 2005 before Federal Magistrate Smith at the Law Courts Building at John Maddison Tower at 88 Goulburn Street, Sydney.  Now I am very sick so I cannot attend on hearing day so my request could you make a further directions.

11. The Federal Magistrate noted that the applicant lived, according to his application, at Hillsdale a suburb near the airport of Sydney.  The Federal Magistrate recorded that his associate attempted to contact the applicant on the only phone number provided by the applicant to the Court but was re-directed to a message bank.  The Federal Magistrate recorded that the associate left a message on the message bank asking for the applicant to contact her.  The Federal Magistrate recorded that no contact was made with the associate in response to this request.  The Federal Magistrate recorded that no medical evidence had been provided by the applicant in support of his adjournment request.  There was no attendance on the day before the Federal Magistrates Court.

12. In the circumstances which the Federal Magistrate recounted and which I have outlined above the Federal Magistrate thought it appropriate to refuse the adjournment application made informally by facsimile two days earlier.  The Federal Magistrate considered that the applicant had had ample opportunity to prepare and present documents for his case and had not done so.

13. The Federal Magistrate recorded that in the similar previous request the applicant had been made aware of the need for medical evidence to support an adjournment.  In the light of the history of the matter the Federal Magistrate was not satisfied that there was a genuine basis for the adjournment application.  In all those circumstances the Federal Magistrate made an order pursuant to Rule 13.03A(c) for the dismissal of the application by reason of the absence of the applicant.  In the penultimate paragraph of his reasons the Federal Magistrate said the following:

    Under r.16.05(2)(a) of the Federal Magistrates Court Rules 2001, the orders I propose to make today may be set aside by this Court on application by the applicant. He will however have to present medical or other evidence showing a satisfactory explanation for his absence today, and he will need to point to merit in his application justifying its restoration to the Court´s list.

14. The applicant makes reference to rule R16.05(2)(a) in his affidavit in support of his application for leave. The application before me is not under Rule 16.05(2)(a) of the Feeral Magistrates Court Rules. That is an application which could only be made to the Court which made the order, that is the Federal Magistrates Court. If the applicant wishes to move the Federal Magistrates Court to set aside the orders made in his absence that is a matter for him. If he does wish to do so he will have to explain not only the delay but also he will need to present appropriate medical evidence or other evidence showing a satisfactory explanation for his absence on 21 July 2005.

15. That application must be made to the Court which made the order.  The Federal Court is not the Federal Magistrates Court.  It is a different court which sits on appeal from the Federal Magistrates Court.

16. The application before me is an application for leave to appeal from the exercise of the power by the Federal Magistrate on 21 July 2005 to dismiss the application for want of appearance.  In the light of the matters that I have recounted from the Federal Magistrate's reasons I am unable to conclude that there is any error of principle or application of principle in the Federal Magistrate's approach on the day.  There was an absence of any reliable evidence to support an adjournment application and I see no error whatsoever in the Federal Magistrate's exercise of discretion even to refuse the adjournment or to make the orders he did for the reasons he did.

17. On 25 January 2006 an officer of the Court wrote to the parties setting out a timetable leading up to the hearing of this matter today.  Those orders required the applicant to file a draft notice of appeal identifying all errors said to have been made by the Federal Magistrate and giving full particulars thereof.  It also required full written submissions as to why the appeal should be allowed should leave be granted.  No draft notice of appeal is on file.  There is a document entitled "Subject: Statement" on the file without a filing stamp.  It appears to accord with the document referred to by the learned Federal Magistrate in his reasons and entitled "Statement".  It directs itself to the merits of the decision of the Tribunal.  It does not provide any indication as to any ground of error by the Federal Magistrate in the exercise of discretion on 21 July 2005.

18. This morning when the matter was called on for hearing the applicant appeared assisted by a Bengali interpreter.  I asked the applicant whether he had any submissions to put as to why the Federal Magistrate made an error in his approach on 21 July.  The applicant put no submissions.

19. For the above reasons there is no basis to grant leave to appeal.  The application for leave will be dismissed and the applicant will pay the Minister's costs of the application.  The orders of the Court are:

    (1)       The application for leave be dismissed.

    (2)       The applicant pay the respondent's costs.

20. For the sake of good order I order that the Refugee Review Tribunal be joined as a party as a second respondent to the principal proceedings below before the Federal Magistrates Court and to the application for leave to appeal. It should be noted that the order for costs I have made are made only in favour of the Minister.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             22 March 2006

The applicant appeared in person assisted by an interpreter.

Counsel for the Respondent:	C Gray
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	20 March 2006
Date of Judgment:	20 March 2006