Applicant S294 of 2003 v Refugee Review Tribunal

[2006] FCA 694

FEDERAL COURT OF AUSTRALIA

Applicant S294 of 2003 v Refugee Review Tribunal [2006] FCA 694

APPLICANT S294 OF 2003 V REFUGEE REVIEW TRIBUNAL & ORS
NSD 715 OF 2006

STONE J
1 JUNE 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 715 OF 2006

BETWEEN:

APPLICANT S294 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:

STONE J

DATE OF ORDER:

1 JUNE 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The Minister for Immigration and Multicultural Affairs be the first respondent in this proceeding.
2. The Refugee Review Tribunal be the second respondent in this proceeding.
3. The Commonwealth of Australia be removed as a party to this proceeding.
4. The application is dismissed with 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 715 OF 2006

BETWEEN:

APPLICANT S294 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:	STONE J
DATE:	1 JUNE 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 29 March 2006, following the failure of the applicant to attend a directions hearing in this matter, I made an order pursuant to O35A r3(1)(a) and r2(1)(b) of the Federal Court Rules that the matter be dismissed because of the applicant's failure to attend.  I also made an order as to costs.  On 13 April 2006, the applicant filed an application seeking leave to appeal from that order.  On 12 May 2006, my associate wrote to the parties indicating that I proposed to treat the application for leave to appeal as a motion to set aside the orders made on 29 March 2006, pursuant to O35 r7(1) of the Federal Court Rules.  At the hearing I explained the reasons for proceeding this way to the applicant who made no objection. 

2. The applicant is a citizen of Bangladesh who applied for a protection visa on 26 March 1996.  His application was refused by a delegate of the Minister in July 1997 and by the Refugee Review Tribunal in February 1999.  In its written reasons the Tribunal noted that the applicant had been invited to appear at a hearing but did not avail himself of that opportunity.

3. Pursuant to section 426A of the Migration Act1958 (Cth), the Tribunal then made its decision without giving the applicant any further opportunity to appear before it. In his application the applicant had claimed to fear persecution in Bangladesh from members of the Awami League and the Jatiya Party, who were his political opponents. He also claimed to have been a target for members of the Awami League because he had originally been a member of the League but had later joined the Bangladesh National Party. The Tribunal was not satisfied on the limited evidence before it that the applicant had a well-founded fear of persecution. The Tribunal said:

   ‘The Applicant has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but has not provided any further information in support of his claims despite ample opportunity to do so.  Nor has he given the Tribunal the opportunity to explore aspects of his claims with him.  A number of relevant questions are therefore left unanswered.  I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution within the meaning of the Convention.’

4. Given the Tribunal's lack of satisfaction, the Tribunal was obliged to dismiss the application for a protection visa.  The applicant then joined the Muin and Lie class action before the High Court which remitted these matters to this Court.  The matter was listed before a Registrar of this Court for first directions on 15 March 2006.  There was no appearance for the applicant at that time and the Minister sought to have the proceedings dismissed.  The Registrar at the hearing refused to dismiss the proceeding, but listed it for directions before me on 29 March 2006. 

5. As Mr Markus, appearing for the Minister, pointed out the applicant has a history of not responding to invitations.  He did not attend the hearing before the Tribunal; he failed to appear at directions before the Registrar on 15 March; and he failed to appear before me on 29 March.  His explanation for not appearing on 29 March is that he had no money to attend, that he had no telephone whereby he could advise the Court of this and that he was only able to attend Court today because he had borrowed money from a friend.  This is not an acceptable explanation.

6. It is quite clear from the papers that have been filed, both in relation to the present application and previously, that the applicant has had some assistance in drafting documents in this case.  It is not credible that he was unable to attend the Court or even to advise the Court that he was unable to do so.  At the hearing today, the applicant stated that he did not know the hearing before the Tribunal had been scheduled.  At this late stage and without any evidence, I do not accept this explanation.  Indeed, in an affidavit filed on 13 April 2006, the applicant made the same statement about being unaware of a deadline to lodge an appeal in the Federal Court and stated that the Federal Court made its decision, presumably my decision, to dismiss the matter on 29 March 2006, ‘without giving me the opportunity to attend the hearing.’

7. The affidavit sworn by Mr Markus on 28 March 2006, annexes two letters sent by express post to the applicant at the two separate addresses on the court file.  These letters, from the Australian Government Solicitor, advised the applicant that his application was listed for a directions hearing on 29 March 2006 and, more particularly, that should there be no appearance at the directions hearing, the Minister would seek to have the proceedings dismissed.  The applicant’s statement that he was not advised of that directions hearing adds weight to my conclusion that his statement that he was not advised of the Tribunal hearing cannot be accepted.

8. I have also considered, following submissions from Mr Markus, the issue of whether there is an identifiable jurisdictional error in the Tribunal's reasons.  In the draft order nisi filed in this court, the applicant sets out seven grounds on which he claims that relief should be given.  Four of those grounds relate to the decision of the delegate who originally considered his application for a protection visa and, as such, are not relevant now.  The other three reasons are, as follows:

   ‘(a) the third respondent did not follow the proper procedure as required by the Migration Act 1958. Thus, the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed.

   (b) the third respondent’s decision was affected by an ‘error of law’ and ‘Jurisdictional error’ and lack of procedural fairness.

   (c) there was no evidence or other material to justify in making of the decision.’

9. No particulars are given.  There is nothing that I can see in the Tribunal's reasons that would give any substance to these claims.   It is highly improbable that the application in this matter, were I to set aside my orders of 29 March, would have any realistic chance of success.  For the reasons I have set out, I have decided not to exercise my discretion to set aside the orders made on 29 March 2006.  Therefore the present application is dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:            13 June 2006

The applicant appeared in person.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 June 2006
Date of Judgment:	1 June 2006