Applicant S353/2003 v Minister for Immigration and Multicultural Affairs

[2006] FCA 227

FEDERAL COURT OF AUSTRALIA

Applicant S353/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 227

APPLICANT S353/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND ANOR
NSD 2602 of 2005

ALLSOP J
13 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2602 of 2005

BETWEEN:

APPLICANT S353/2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

13 MARCH 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The proceeding stand over to 9:30am Wednesday 26^th April 2006.

2.The registrar approach the NSW Bar Association to obtain a barrister either as amicus curiae or under O 80 of the Federal Court Rules to provide written submissions to the Court prior to 26 April 2006 on the proper approach which should be taken to the application for leave in the light of the possible application of s 424A of the Migration Act1958 and in the light of these reasons.

3.Such submissions as are provided to the Court should be provided also to the applicant at his address for service and to the Australian Government Solicitor through Mr Markus.

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 2602 of 2005

BETWEEN:

APPLICANT S353/2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	ALLSOP J
DATE:	13 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter there is an application for leave to appeal from orders made by a Judge of this Court on 29 November 2205 dismissing an order nisi on the basis that there was no apparent foundation whatsoever to argue that the decision of the Tribunal was affected by jurisdictional error.  On the material put before the learned primary judge there was with one exception clearly no arguable matter.  That exception was an allegation of bias.  His Honour took the view that there was no serious issue raised in the material about that matter and thus dismissed the application.

2. His Honour's dismissal of the application was of course an interlocutory order the appeal against which would require leave.  The leave application has come to me as duty judge.  In January 2006 directions were made for the filing of submissions, and requiring a draft notice of appeal identifying all grounds to be filed and forwarded in submissions.  Neither of these orders have been complied with.  Today the Registry at 8.15 am received a facsimile from the applicant apparently in his handwriting which indicated that his migration case was on for hearing today though he identified 20 March, not 13 March 2006.  The facsimile simply went on to state the following:

   I am unable to attend the hearing because of I had an accident today.  Please postpone my hearing.

3. I have not had an opportunity to examine where this facsimile came from, other than noting that it came from an identifiable facsimile number.  The Minister opposed the adjournment implicitly requested in this facsimile.  I refuse an adjournment.  There is inadequate material upon which it could properly be founded.

4. On the basis of the material examined by the learned primary judge I am in full agreement with him that there was no reasonable foundation for any claim of possible jurisdictional error and that save for the matters to which I am about to refer I would have no hesitation in refusing leave.  I say that subject to any submissions that the applicant may wish to put but I note that he has had the opportunity to put forward written submissions and has not taken it and has not attended today.  Although he may be suffering from incapacity, there is no adequate evidence about that fact.

5. The one matter that concerns me is the question of the operation of s 424A of the Migration Act 1958 (Cth) in relation to the Tribunal's decision. The Tribunal made its decision on 18 October 2000 and it was handed down on 7 November 2000.

6. Mr Markus helpfully assisted me through the decision of the Tribunal, in particular at pages 4.1, 10.1, 12.9, 13.9, 21.4, 21.8, 23.6 and 24.5. The paragraphs referred to at those places in the Tribunal's decision raised the question as to whether or not there may be an argument that under s 424A of the Migration Act there has not been use of information in a way which may make that information the reason or a part of the reason for affirming the decision.  None of those references bespeak with clarity what the antecedent information was that was being referred to, thus it is not clear without evidence that that information other than information provided to the Tribunal was or was not used within the reasoning process so that it could be said to be a reason or a part of the reason for affirming the decision.  Equally there was no evidence that a compliant 424A letter was not sent.

7. These matters were not drawn to the primary judge's attention but on one view the questions may arise on the face of the reasons for decision of the Tribunal. A difficult question arises in such circumstances as to what the proper course should be on an application for an order nisi. This is a leave application and one of the questions before me is whether there is any arguable basis to conclude that his Honour erred in the approach that he took. The only possible basis is that his Honour erred in failing to ascertain that on the face of the reasons of the Tribunal there may be an argument, depending upon the evidence, based on s 424A.

8. Looking at the reasons for the decision there are some troubling aspects as to how the applicant is said to have approached the administrative hearing to deal with his matter.  It may be that his failure to comply with the orders that were made for the preparation of this case and his lack of attendance today is a further reflection of that.  It may not be.  There may be good reasons for both those things. 

9. What I propose to do is to request the Registrar to approach a member of the Bar of New South Wales as an amicus curiae or retain pursuant to Order 80 to put written submissions to me as to the proper approach to the question of leave to appeal in the light of these reasons and in the light of a reading of the Tribunal decision.  Those written submissions are to be provided to Mr Markus of the Australian Government Solicitor and to the applicant and to the court.  While the basis for the retainer can be at the choice of the barrister, that is whether as an amicus curiae or pursuant to Order 80, in this circumstance and given the contents of the reasons for decision it may be preferable to have the submissions as an amicus curiae. 

10. The orders I make are: 

    1.The proceeding stand over to 9:30am Wednesday 26^th April 2006.

    2.The registrar approach the NSW Bar Association to obtain a barrister either as amicus curiae or under O 80 of the Federal Court Rules to provide written submissions to the Court prior to 26 April 2006 on the proper approach which should be taken to the application for leave in the light of the possible application of s 424A of the Migration Act1958 and in the light of these reasons.

    3.Such submissions as are provided to the Court should be provided also to the applicant at his address for service and to the Australian Government Solicitor through Mr Markus.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             20 March 2006

The Applicant did not appear.
Counsel for the Respondent:	Mr A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 March 2006
Date of Judgment:	13 March 2006