Applicant S356 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCAFC 210
•11 AUGUST 2004
FEDERAL COURT OF AUSTRALIA
Applicant S356 of 2003 V Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 210
MIGRATION – appeal from summary dismissal for failure to comply with previous directions.
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)Muin and Lie v Refugee Review Tribunal and Others (2002) 76 ALJR 966 referred to
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Cassim (2000) 74 ALJR 1404 followed
Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 appliedAPPLICANT S356 OF 2003 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 508 of 2004
KIEFEL, ALLSOP & CRENNAN JJ
11 AUGUST 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 508 of 2004
On appeal from a judgment of a single judge of the Federal Court of Australia
BETWEEN:
APPLICANT S356/2003
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGES:
KIEFEL, ALLSOP AND CRENNAN JJ
DATE OF ORDER:
11 AUGUST 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The applications for an extension of time and for leave to appeal be dismissed.
2.The appeal be dismissed as incompetent.
3.The applicant pay the respondent’s costs of the application and of the 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
N 508 of 2004
On appeal from a judgment of a single judge of the Federal Court of Australia
BETWEEN:
APPLICANT S356/2003
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGES:
KIEFEL, ALLSOP AND CRENNAN JJ
DATE OF ORDER:
11 AUGUST 2004
WHERE MADE:
SYDNEY
REASONS FOR JUDGMENT
The applicant purports to appeal against the decision of a single judge of this Court dismissing the applicant’s application, for orders nisi for constitutional writs and other relief in respect of a decision of the Refugee Review Tribunal (“the Tribunal”), for want of substantive compliance with a direction given. As the decision of the primary judge was an interlocutory decision, the applicant requires leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). As no leave has been sought within the time limits provided in O 52 r 10 of the Federal Court Rules an application to extend time within which to apply for leave is also necessary.
The background to the matter is set out briefly in the reasons for judgment of the primary judge. The applicant is a citizen of Bangladesh who speaks English and Bengali. He arrived in Australia using an Indian Passport on 28 January 1997. On 4 September 1997 he applied for a protection visa (Class AZ) under the provisions of the Migration Act 1958 (Cth) (‘the Act’). A delegate of the Respondent refused to grant the protection visa. On 7 April 1998, the applicant applied for a review of that decision by the Tribunal. On 26 May 2000, the Tribunal affirmed the decision not to grant a protection visa. In doing so the Tribunal recorded its inability to make a decision in the applicant’s favour on humanitarian grounds. The applicant had numerous health problems, third party proceedings on foot and required further medical treatment for injuries received in a car accident. The Tribunal then said it was not satisfied of the applicant’s claim, namely that the applicant would be subject to persecution as a Bihari living in Bangladesh, his former habitual place of residence. The Tribunal’s finding was based, in part, on rejecting some parts of the applicant’s evidence because of inconsistencies.
The applicant then made an application to this Court for review of the Tribunal’s decision. The only ground upon which the applicant relied was s 476(1)(a) of the Act (as it then provided). That application for review was dismissed on 9 October 2000.
Some two years and eight months later, on 20 June 2003, the applicant filed a draft order nisi in the High Court of Australia, supported by an affidavit. According to that affidavit the applicant was a party to the representative proceedings in Muin and Lie v Refugee Review Tribunal and Others (2002) 76 ALJR 966. That application was remitted to this Court in accordance with the usual terms of remitter pursuant to s 44 of the Judiciary Act 1903 (Cth). The draft order nisi contained seven grounds which were all stated generally. When the matter was heard before the primary judge on 31 October 2003, he ordered the applicant file, no later than 27 January 2004, a statement of contentions of relevant facts and law setting out:
“(a) particulars of the grounds relied upon;
(b) reasons why an extension of time should be granted; and
(c)reasons why the doctrines of res judicata, issue or Anshun estoppel should not apply.”
The applicant filed an affidavit on 28 January 2004. On substantive issues, the affidavit contained the following statements:
“I strongly believe that for me it is never possible to return to Bangladesh as both Awami League and BMP are in a strong position. Even to imagine returning to Bangladesh would be suicidal for me.
DIMIA did not make any attempt to interview us and rejected our applications.
RRT generalised our persecution for the whole society of Bangladesh.
RRT said that there would be informal hearing, but the hearing was formal and we did not know the contents of the hearing.
RRT did not believe our documents without making the any further investigation.”
His Honour stated in his Reasons for Judgment that he did “not regard the applicant’s affidavit as in substantive compliance with the direction. If that affidavit is all that the applicant proposes to rely upon then the application is doomed for failure.” His Honour also rejected the applicant’s claim for further time to obtain certain documents from Bangladesh on the grounds that they “could not be relevant to the question of whether the decision of the Tribunal was attended with error amounting to jurisdictional error…”. The primary judge then dismissed the application, with costs, for want of substantive compliance with the direction of 31 October 2003.
On 8 April 2004, the applicant filed a notice of appeal against the decision of the primary judge. On 5 May 2004, the applicant was ordered by Moore J to file and serve an application for an extension of time within which to seek leave to appeal and affidavits in support by 18 June 2004. The respondent filed a notice of objection to competency to the notice of appeal on 6 May 2004 on the grounds that the applicant had not been granted leave to appeal.
As at the date of the hearing of this appeal, the applicant has not filed an application for an extension of time within which to seek leave to appeal nor any application for leave to appeal. Given an invitation to make the necessary applications orally, the applicant stated that he believed the primary judge did not consider the case properly. There is plainly no proper answer to the respondent’s objection to competency.
The notice of appeal reiterates in somewhat simpler form the grounds of appeal raised by the applicant before the primary judge in relation to the decision of the Tribunal. The grounds stated are that:
· “The Tribunal member refused to accept that the applicant has a well‑founded fear of persecution on convention reasons.
· The Tribunal failed to take relevent (sic) consideration into account to exercising it’s (sic) power to determine to the applicant as a refugee.
· The Tribunal did not consider the application properly.
· The Tribunal made a number of errors to decide the case.”
As to the decision of the primary judge the applicant claims in his written submissions that:
“I am not in agreement wit (sic) the judgement (sic) of my judicial review application because the honourable judge did not find “error of law”.”
Putting to one side issues of estoppel, the applicant has not shown, as he must, an arguable case of any jurisdictional error by the Tribunal in affirming the delegate’s decision: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Cassim (2000) 74 ALJR 1404. Furthermore, we agree with submissions made by the respondent that there is nothing asserted by the appellant in his notice of appeal or in submissions, which indicates that there is any arguable basis to interfere with the orders made by the primary judge. The applicant has not shown that the primary judge’s decision is attended with sufficient or even any doubt such as to warrant it being reconsidered and cannot satisfy the first test for the grant of leave in respect of an interlocutory matter: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.
The orders made by the primary judge dismissing the application for orders nisi and ordering costs against the applicant were clearly based on the applicant’s failure to provide an affidavit dealing with matters as directed by the primary judge. Those orders were not affected by any error.
In any event, there is no material before the court to found a basis upon which it could be said that the Tribunal’s decision was affected by jurisdictional error. There was no evidence from the applicant that was capable of establishing any of the grounds referred to in the draft order nisi. On the affidavit material filed by him there was no arguable case in respect of any ground of review. There was no material in respect of estoppel issues. The grant of leave to appeal would be futile because an appeal would have no prospects of success.
For that reason the applications for an extension of time, as required, to seek leave to appeal and for leave to appeal are refused. The applicant should pay the respondent’s costs of the application and of the appeal.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kiefel, Allsop and Crennan. Associate:
Dated: 11 August 2004
Applicant: Appeared in Person Counsel for the Respondent: Mr A. Markus Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 11 August 2004 Date of Judgment: 11 August 2004
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