Dickson v Minister for Immigration and Multicultural Affairs

[2001] FCA 494

FEDERAL COURT OF AUSTRALIA

Dickson v Minister for Immigration & Multicultural Affairs [2001] FCA 494

MIGRATION – protection visa – application for review of decision of Refugee Review Tribunal – non-appearance of applicant at hearing – whether application should be dismissed or heard on merits – questions of fact

Migration Act 1958 (Cth) s 476(1)(e)(g) and (4)(a)
Federal Court Rules 0 32 r 2

Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 followed
Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at [28] followed

AARON AGBETI DICKSON v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NO.  V 986 OF 2000

HEEREY J
23 APRIL 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 986 OF 2000

BETWEEN:	AARON AGBETI DICKSON APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	23 APRIL 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

The application is dismissed with costs, including reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 986 OF 2000

BETWEEN:	AARON AGBETI DICKSON APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HEEREY J
DATE:	23 APRIL 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application for review under Pt 8 of the Migration Act 1958 (Cth) of a decision of the Refugee Review Tribunal made on 15 November 2000 affirming the decision of a delegate of the Minister not to grant the applicant a protection visa. I incorporate by reference the reasons of the Tribunal in this judgment.

2. The application for review had been filed on 21 December 2000 by a firm of solicitors on behalf of the applicant.  On 1 February 2001 directions were made which inter alia required the applicant to file contentions of fact and law by 15 March.  On 1 March 2001 the solicitors filed an amended application setting out grounds of review in more detail.

3. On 15 March the solicitors wrote to the Court advising that they were not in a position to comply with the directions for the provision of contentions of facts and law as they were still “waiting to receive relevant instructions from their client”.  The client was said to be “having difficulties funding the Federal Court application and has undertaken to provide instructions on or before 21 March 2001”.

4. The contentions of fact and law were not supplied.  On 12 April the Minister’s solicitors wrote to the applicant at his last known address advising him that the hearing of the matter was fixed for 23 April and that any adjournment would not be consented to.  The letter pointed out that the contentions which were due by 15 March had not been received.  These were requested no later than 17 April.  The letter further advised that in any event the Minister intended to file his contentions by 20 April.  In fact the Minister’s contentions were filed on 19 April. 

5. In that setting O 32 r 2 applies: 

   “(1)If, when a proceeding is called on for trial, any party is absent, the Court may:

   (a)order that the trial be not had unless the proceeding is again set down for trial, or unless such other steps are taken as the Court may direct;

   (b)adjourn the trial;

   (c)if the party absent is an applicant or cross-claimant dismiss the action or the cross-claim; or

   (d)proceed with the trial generally or so far as concerns any claim for relief in the proceeding.

   (2)Where the Court proceeds with a trial in the absence of a party, and at or at the conclusion of the trial an order is made the Court, on motion by that party, may set aside or vary the order, and may give directions for the further conduct of the proceeding.

   (3)Subrule (2) does not enable the Court to vary the verdict, finding or assessment of a jury at a trial except with the consent of each interested party present at the trial.”

6. A seeming anomaly is that if I were simply to dismiss the application for review under O 32 r 2 (1)(c) the applicant would not have a right to have it set aside once it has been entered (see O 35 r 7(1)).  However, if I proceed to hear the application and dispose of it on the merits, O 32 r 2(2) seems to provide an unlimited discretion to set aside or vary any order made.

7. I think in all the circumstances the appropriate course is for me to deal with this matter on its merits. It is possible to do so because in an application for review under Pt 8 no evidence is required or, generally speaking, admitted. The amended application for review is in proper form and in sufficient detail to enable a judge to ascertain whether grounds of review are made out. Further, the Minister’s contentions discuss these grounds in a quite adequate manner.

8. Since the Court’s jurisdiction by way of judicial review has been invoked there is also, to some degree at least, a public interest in the Court making a decision as to whether a decision of the Tribunal, which self-evidently is an important one both for the parties and the community, has been properly made.

9. The amended application for review relies on six alleged errors of law for the purposes of s 476(1)(e) of the Act.  These errors are also said to amount to a “constructive failure of jurisdiction”.  Further, it is said that there was no evidence or other material to justify the making of the decision and that the decision was based on the existence of a particular fact, namely, that the applicant was not of Liberian nationality, and that fact did not exist.

10. The first error of law alleged is that the Tribunal erred by failing to make a finding as to the nationality of the applicant.  It was said that that was a necessary precondition to the assessment of whether or not the applicant was a refugee for the purpose of the Act and the Convention.  I agree with the contention of the Minister that this ground is misconceived.  The Tribunal made an express finding that it could not be satisfied as to the applicant's nationality.  Moreover, the Tribunal was not required to make an such finding.  It was only required to decide whether it was satisfied that the applicant for a protection visa is a person to whom Australia owed protection obligations under the Convention:  s 36.

11. In the absence of evidence to satisfy the Tribunal that the applicant was a national of Liberia, the Tribunal could not be satisfied that Australia owed him a protection obligation as a national of that country.  However, the Tribunal also considered the applicant's claims on the assumption that he was a national of Liberia which was in any case his former country of habitual residence. 

12. The second ground relied on was that the Tribunal wrongly concluded that a finding that the applicant had been “very untruthful” precluded him from being a refugee.  However, the Tribunal’s conclusions in terms of the statutory requirement was that it was “not satisfied” that he was a refugee.  The fact that it found that he had been very untruthful was obviously relevant to that conclusion and clearly open on the evidence.

13. The third ground was that the Tribunal in concluding that it was unable to make a finding as to nationality implicitly imposed upon the applicant an onus to establish the facts of his case and that his failure to discharge that onus led to the conclusion of the Tribunal to affirm the decision under review.  However, the Tribunal was required to be satisfied as to a particular state of affairs and its reasons indicate that it considered the evidence of material facts and they acted properly and rationally in reaching a conclusion of non‑satisfaction. 

14. The fourth ground was, in the alternative, that if the Tribunal was unable to find facts including the applicant's nationality on the balance of probabilities, the “real chance” test required it to speculate on the possibilities raised by that material.  This ground totally misconceives the notion of speculation as applicable to refugee claims.  As is clear from the Tribunal’s reasons, it simply found the applicant totally untruthful.  It could not rely on anything he said and thus could not be satisfied as to the past events which were said to give rise to the well-founded fear of persecution. 

15. The fifth ground of law was that the Tribunal failed to give “real and genuine consideration” as to whether the applicant faced persecution for reason of his reputed political opinion. This is not a ground of review under Pt 8: Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274.

16. The constructive failure of jurisdiction ground adds nothing. 

17. The “no evidence” ground does not meet the requirements of s 476(4)(a) because this is not a case where the decision-maker was required by law to reach the decision, that is, non-satisfaction that the applicant was a person to whom Australia owed an obligation under the Convention, only if the fact of him not being of Liberian nationality was established: see Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at 28.

18. The application will be dismissed with costs, including reserved costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             20 November 2001

Counsel for the Applicant:	The applicant did not appear and was not represented
Counsel for the Respondent:	Mr S G E McLeish
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	23 April 2001
Date of Judgment:	23 April 2001