Applicant S409 of 2003 v Minister for Immigration & Citizenship

[2007] FCA 331

FEDERAL COURT OF AUSTRALIA

Applicant S409 of 2003 v Minister for Immigration & Citizenship
[2007] FCA 331

APPLICANT S 409 OF 2003 v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1748 OF 2006

BUCHANAN J
23 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1748 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

APPLICANT S 409 OF 2003
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	23 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave is granted to amend the title of the proceedings, so that the first respondent is named Minister for Immigration and Citizenship;

2.The appeal 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 1748 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

APPLICANT S 409 OF 2003
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	23 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. This proceeding commenced as an application for leave to appeal against a judgment given by Lloyd Jones FM on 29 August 2006.  The application for leave to appeal was filed on 11 September 2006.  The application was made using Form 54 under the Federal Court Rules.  In that application the applicant both sought leave to appeal and a dispensation from the requirements of Order 52 rule 5(2) that the application be filed within 21 days.  In fact, the application was filed within a period of 21 days from the date of the judgment of Lloyd Jones FM, and it is accepted that an extension of time is not required.  The next question is whether leave to appeal is required, and I shall return to that issue in due course after setting out some of the background. 

2. The applicant is a citizen of India.  He arrived in Australia on 8 March 1997.  On 2 April 1997 he made an application for a protection visa.  On 4 September 1997 a delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) refused to grant a protection visa.  On 1 October 1997 he applied for a review of that decision in the Refugee Review Tribunal (‘the RRT’).  On 17 May 1999 the RRT affirmed the delegate’s decision not to grant a protection visa.  The RRT found that the applicant's stated fears of persecution on the grounds of religion and political opinion were not well founded. 

3. On 16 July 2003 the applicant filed an application in the High Court of Australia seeking prerogative relief against the Minister and the RRT.  On 10 November 2003 those proceedings were transferred by the High Court to this Court.  By Order 51A of the Federal Court Rules, those Rules apply, generally speaking, to matters remitted by the High Court of Australia.  Accordingly, one of the Rules applying is Order 82 rule 6 which permits a judge of this Court to transfer a proceeding to the Federal Magistrates Court.

4. It is clear from the definition of ‘proceeding’ in s 4 of the Federal Court of Australia Act 1976 (Cth) that the remitted matter was a proceeding for the purpose of Order 82. On 5 August 2005 Emmett J transferred the proceeding to the Federal Magistrates Court. The case was heard by Lloyd Jones FM, and on 29 August 2006 he published reasons for judgment and made an order in the following terms:

   ‘The application filed on 16 July 2003 is dismissed.’

5. That order appears to me to have finally disposed of the substantive proceedings.  So much was accepted this morning by Ms Nanson who appeared for the Minister but it is desirable that I give some short reasons for that conclusion. 

6. Had the matter continued in this Court, Order 51A rule 5 would require the order nisi proceedings to be amalgamated with proceedings for final relief, that is, proceedings for an order absolute.  The proceedings, as a result, would not go forward as interlocutory proceedings but as substantive proceedings for final relief.  The decision of a Full Court of the Court in Applicant S61 of 2002 v The Refugee Review Tribunal [2004] 136 FCR 122 is authority for the proposition that dismissing an application for prerogative relief, such as that commenced by the applicant, is a final order. As a result, had the matter been heard in this Court the position would have been clear. However, the matter was heard in the Federal Magistrates Court and it is to the Rules of that Court that some regard also must be paid.

7. Under the Federal Magistrates Court Rules 2001 Division 44.3 deals with matters remitted by the High Court. Rules 44.08 and 44.09 are broadly similar to Order 51A rules 2 and 2A of the Federal Court Rules. However, Division 44.3 does not contain a specific rule in similar terms to Order 51A, rule 5, of the Federal Court Rules. General rules are contained in Division 44.4, which seem to me to apply to the present matter.

8. Rule 44.12 deals with show cause hearings.  Rule 44.12(1)(a) permits the Federal Magistrates Court to dismiss an application if not satisfied that the application has raised an arguable case for the relief claimed.  Rule 44.12(2) directs that a dismissal of that kind is to be treated as an interlocutory decision.  It does not appear to me that Lloyd-Jones FM dismissed the application under Rule 44.12(1)(a).  He does not say in his judgment that no arguable case was raised.  Accordingly, I conclude that he dismissed the application under Rule 44.12(1)(c), that the dismissal was a final order, and leave to appeal is not required.

9. That brings me to the appeal itself.  The judgment of Lloyd-Jones FM was thorough, and took a tolerant view of the confused state of the appellant's material.  He reached a firm view, clearly expressed, rejecting each of the appellant's arguments.  To succeed in an appeal to this Court the appellant must show that Lloyd-Jones FM made an appealable error.  That is an indispensable pre-condition to the success of his appeal.  The appellant's draft notice of appeal contains no more than an unparticularised complaint that Lloyd‑Jones FM failed to find jurisdictional error on the part of the RRT.

10. In an affidavit filed in support of the application for leave to appeal, which the appellant believed was required, he alleges that Lloyd-Jones FM did not consider his application.  That contention is without any substance.  He also says he is dissatisfied with the order.  That appears to me to capture the real foundation for the appeal.  The appellant also filed a written submission on 18 December 2006.  In the hearing this morning he indicated he had no further submissions to put, and that he relied upon the material which was already before the Court.

11. The essence of his argument is that the RRT was biased towards him, and in various ways denied him procedural fairness.  It is alleged that it failed to consider his oral evidence, did not consider his documents, and failed to give him an adequate opportunity to comment on the matters which the RRT might take into account.  There is no independent or objective support for these assertions.  Nor is there any support available from the terms of the RRT decision itself, where there is detailed discussion of the applicant's documentary and oral evidence.  The weight to be given to the evidence furnished by the applicant is a matter for the RRT.  It was not a matter for the Federal Magistrates Court, and is not a matter for this Court. 

12. I am not persuaded that the RRT failed to consider any of his material, ignored any relevant consideration, or otherwise committed any jurisdictional error.  More to the point, I am not satisfied that any ground has been, or could be, advanced to suggest error on the part of Lloyd-Jones FM, whether by failing to detect jurisdictional error in the decision of the RRT, or otherwise.

13. Accordingly the appeal must be dismissed.  In my view it is appropriate to dismiss it with costs.  The first respondent seeks leave to alter the name of the first respondent in the title of the proceedings, and I will grant leave to that effect.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:       9 March 2007

Appellant was self represented
Solicitor for the Respondent:	Ms A Nanson of Australian Government Solicitor
Date of Hearing:	23 February 2007
Date of Judgment:	23 February 2007