NACJ of 2001 v Minister for Immigration and Multicultural Affairs

[2002] FCA 1290

FEDERAL COURT OF AUSTRALIA

NACJ of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCA 1290

NACJ OF 2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1558 of 2001

STONE J
2 OCTOBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1558 OF 2001

BETWEEN:	NACJ OF 2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	2 OCTOBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The notice of motion be dismissed.

2.The applicant pay the respondent’s 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	N1558 OF 2001

BETWEEN:	NACJ OF 2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	2 OCTOBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me a notice of motion and supporting affidavit filed by the applicant seeking to set aside orders made by Lindgren J on 3 April 2002.  It is necessary for me to give some background to the orders made by Lindgren J and the circumstances surrounding the filing of the notice of motion.

2. The applicant arrived in Australia on 25 December 1998 and applied for a protection visa on 30 December 1998.  A delegate of the respondent refused the application on 24 February 1999.  The applicant lodged an application for review of this decision with the Refugee Review Tribunal (“Tribunal”) on 17 March 1999.  There were a number of hearings before the Tribunal which handed down its decision, affirming the delegate’s decision, on 25 October 2001.  The applicant lodged his application for a review of the Tribunal’s decision in this Court on 26 November 2001.  The matter was fixed for hearing on 3 April 2002 however, on that date the applicant did not appear.  For this reason Lindgren J acceded to a request made by the respondent’s counsel that the application for a review of the Tribunal’s decision be dismissed pursuant to O 32 r 2(1)(c) of the Federal Court Rules. 

3. On 23 April 2002, the applicant filed a notice of appeal against the decision of Lindgren J.  The appeal came on for hearing before a Full Court on 28 August 2002.  On that date, the Court adjourned the hearing of the appeal to the next Full Court callover on condition that the applicant file and serve:

   (a)a notice of motion to set aside the orders made by Lindgren J within 14 days; and

   (b)an affidavit in support of the notice of motion as soon as reasonably practicable. 

   The notice of motion, and affidavit in support, which are the documents before the Court, were both filed, within the period stipulated by the Full Court, on 10 September 2002.

4. Order 35 rule 7(2)(a) entitles the Court to set aside orders made in circumstances such as these.  The rule, however, clearly puts the exercise of this power at the discretion of the Court.  In exercising this discretion the Court will not indulge in an exercise of futility; the Court will not set aside orders dismissing an application in the absence of the applicant if it is clear from the material before the Court that the same outcome would result from another hearing. 

5. In this case, although entitled to dismiss the application without any consideration of its merits, Lindgren J stated that he had read the papers and did not think there was any injustice in dismissing the application.  His Honour set out the claims made by the applicant in his application for review of the Tribunal’s decision.  These claims largely consisted of a restatement of the claims made before the Tribunal.  His Honour commented:

   “The Tribunal did not accept many of the claims made by the applicant and gave reasons for not doing so. In fact the Tribunal described the applicant as a “grossly unreliable witness”. The Tribunal declared itself not satisfied that the applicant faced a real chance of Convention-related persecution in Bangladesh.
   No ground of review suggests itself.”

6. His Honour went on to note that the Tribunal’s decision was given on 25 October 2001 and that the Minister contended that s 474 of the Migration Act 1958 (Cth) (“the Act”), pursuant to which the Tribunal’s decision is a privative clause decision, precludes this Court from having jurisdiction to review the Tribunal’s decision.

7. In NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 a majority of the Full Court (at [630], [635] – [636] per von Doussa J, with whom, on this point, Black CJ and Beaumont J agreed) held that s 474(1) expands the jurisdiction of relevant decision makers under the Act, including the Tribunal, so that a decision affected by irregularities that would, in the absence of s 474(1), amount to jurisdictional error will be within power, subject to satisfying the conditions laid down by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598.

8. The so-called Hickman conditions require that the Tribunal’s decision:

   ·be made bona fide;

   ·relate to the subject with which the Act deals; and

   ·be reasonably capable of reference to the power possessed by the Tribunal.

9. There is nothing in the application for review or in anything that has been put before the Court to suggest that there is any breach of these conditions.  At the hearing, the applicant stated that he had not attended the hearing before Lindgren J because he was sick.  The same excuse is made in his affidavit supporting the notice of motion.  However, the applicant has offered no independent evidence to support this claim, nor has he suggested that any attempt was made to contact the Court.

10. Mr Wigney, counsel for the respondent, indicated that he might wish to cross-examine the applicant if any such evidence were to be forthcoming.  In the circumstances, however, I am of the opinion that it is not necessary to explore this issue in the light of the legal obstacles which confront the applicant.  For the reasons set out above, and in particular because of the jurisdictional vacuum that faces the applicant, I am confident that there would be no utility in setting aside the orders of Lindgren J. For this reason the notice of motion is dismissed with costs.

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

Associate:

Dated:            22 October 2002

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	M A Wigney
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	2 October 2002
Date of Judgment:	2 October 2002