NAFG v Minister for Immigration (No.2) - [2003] FMCA 558

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAFG v MINISTER FOR IMMIGRATION (No.2)

[2003] FMCA 558

MIGRATION – Application to set aside orders made in absence of applicant dismissing application – whether arguable case – application dismissed.

M60 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 429
Australian Fisheries Management Authority v P.W. Adams Pty Limited (1996) 66 FCR 349
Muin v Refugee Review Tribunal (2002) 190 ALR 601

Applicant:

NAFG

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ279 of 2003

Delivered on:

27 November 2003

Delivered at:

Sydney

Hearing Date:

27 November 2003

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

ORDERS

That the application to set aside the judgment is dismissed.
That the Applicant pay the Respondents costs set in the amount of $600 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ279 of 2003

NAFG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application filed by the applicant on 5 November 2003 seeking an order that the court set aside the orders that it made on

8 October 2003 dismissing his application for review of a decision of the Refugee Review Tribunal, which had been handed down on 26 November 2002, affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa. The applicant claimed that he had no legal representation because of financial hardship, that on the day of the hearing, (8 October 2003) he was sick and that because of his physical sickness he did not produce any oral argument before the court. He also claimed to have medical certificates.
The applicant tendered a medical certificate from a Dr Kathir, certifying that on 8 October 2003 the doctor examined the applicant. Rather unsatisfactorily, the medical certificate does not indicate whether it is the doctor's opinion that the applicant was suffering from an illness or whether the applicant stated that he was suffering from an illness as both alternatives appear on the medical certificate. The illness referred to is viral respiratory tract infection, and the certificate states that the applicant was unfit for work/school from 8 October to

9 October 2003 inclusive. It makes no reference to whether or not the applicant was fit to attend Court.
In brief cross-examination the applicant indicated that he had been aware of the date of the hearing. He denied that he had received a telephone call from the court at approximately 10:20 on the day of the hearing or that he had indicated that he was on his way to court. He suggested that he was not at home at that time and did not have his phone with him and that his friend, who was aware of the hearing, had his phone. He also claimed that he went to see the doctor, from whom he obtained the medical certificate that morning, but that he had forgotten to contact the court to notify it of his illness.
The applicant was given the opportunity to make submissions as to why, apart from his illness, the orders made by the court should be set aside. In that respect he simply indicated that he needed more time to stay in Australia, and did not wish to return home because he knew what would happen.
The court has power under Rule 16.05(2)(a) of the Federal Magistrates Court Rules to vary or set aside its judgment or order after it has been entered, if the order is made in the absence of a party as occurred in this case. The principles to be applied as to whether or not orders should be set aside in the absence of a party are well established. As Federal Magistrate Phipps stated in M60 v The Minister [2003] FMCA 429 [5] first there needs to be an explanation for the failure to appear, and secondly, it needs to be shown that there is an arguable case. The power is generally not to be exercised unless the applicant is able to show that by accident, and without fault on his part, the order was made without his being heard. It is necessary to look at the whole of the circumstances. (See Australian Fisheries Management Authority v P.W. Adams Pty Limited (1996) 66 FCR 349.)
In this instance the applicant has provided an explanation for his absence and an accompanying medical certificate. Despite the generality of the medical certificate and the absence of reference to fitness for attendance at court, I consider that it is appropriate to go on to consider whether or not he has shown that there is an arguable case. As was said in M60 at [5], ‘arguable case’ is a convenient way of describing the obligation of the applicant which in other contexts has been described as a requirement of establishing a prima facie case, a very compelling reason, or exceptional circumstances.
In the application and accompanying affidavit filed on 9 December 2002 seeking review of the Tribunal decision, the applicant raised a number of very general but unparticularised claims. He also provided a very general form of written argument on 26 March 2003.
To some extent the claims that he makes in his application, affidavit and in written submissions take issue with the merits of the Tribunal decision. Merits review is not available in this court and those claims do not establish an arguable case.
He claimed that the Tribunal fell into jurisdictional error in a number of ways. In particular, although not put in that way, it appears that he claimed that there was a denial of procedural fairness constituted either by bias or because he was, as he said, deprived of an opportunity to put his claims to the Tribunal or to fully present his case to the Tribunal. He claimed that the Muin (see Muin v RRT (2002) 190 ALR 601) decision of the High Court was relevant to his application but has not explained how it is relevant.
He also claimed that the Tribunal ignored the procedures to be required to be observed under the Migration Act but has not particularised which procedures. He appears to claim that the Tribunal did not take into account relevant considerations in a suggestion that it did not take into consideration the ‘verdict’ from a Country Report on India. He asserted that the Tribunal made findings in the face of contradicting independent evidence, although such independent evidence is not identified other than by the reference to the India Country Report.
I have considered whether anything raised by the applicant in his application, written argument, or in what was said in court today, establishes that he has an arguable case. However, I am not satisfied that he has established an arguable case.
The applicant claimed to fear persecution because of his political affiliations. The Tribunal did not accept that he was targeted by members of the BJP and Akali Dal because of his Congress Party affiliations. It found that his evidence lacked credibility and that his claims were inconsistent with known country conditions. There is nothing in the material before the court to suggest that the Tribunal in any way denied the applicant procedural fairness or, in particular, that it failed to accord the applicant a fair hearing or showed actual or indeed apprehended bias. An allegation of actual bias is a serious allegation. It is difficult to establish merely on the reasons for decision such as are before the court. There is no particular aspect of the Tribunal procedures or decision relied on in this respect.
The applicant was invited to attend a hearing to give evidence and did so on 25 October 2002. It is clear from the Tribunal reasons for decision that the Tribunal put to the applicant information it regarded as of significance for its decision, in particular regarding the results of recent elections in the Punjab which would suggest that the applicant no longer had reason to fear the BJP and Akali Dal because of his Congress Party affiliations.
The Tribunal gave the applicant an opportunity to deal with matters adverse to his interests that it was considering taking into account in exercising its power. It is clear from the Tribunal reasons for decision that it did not accept that the applicant was targeted by members of political and religious groups because of his political affiliations but that even if his family had been persecuted in the past by political opponents as claimed, there had been a change of government in the Punjab which overcame such concerns. Hence any fear was not well-founded.
There is nothing in the material before me to suggest that there is an arguable case that there is a denial of procedural fairness in any manner. No particular unfairness has been argued by the applicant in these proceedings, and there is nothing to suggest that he has been misled or that his circumstances are in any way within the circumstances which might lead to the application of the principles established by the High Court in Muin.
The applicant has not suggested that there is any particular matter that he did not have an opportunity to address, or that he was misled in any way from taking that opportunity, nor does the material support any claim that there is an arguable case that the Tribunal failed to take into account relevant considerations or comply with procedures under the Migration Act. It is apparent from its reasons for decision that the Tribunal had regard to independent evidence and that it put the essence of such independent evidence to the applicant for comment. It has not been established that there is an arguable case that the Tribunal did not take into consideration any ‘verdict’ from the India Country Report as submitted but not particularised by the applicant in such a way as to constitute jurisdictional error or that the Tribunal conclusions were not open to it on the material before it.
The Tribunal addressed the claims made by the applicant and made findings in respect of them. The applicant has not established that there is (whether the test is to be expressed in terms of an arguable case, exceptional circumstances, or a clear and plausible case) a case such as to justify setting aside the orders that were made by this court on 8 October 2003.
The application to set aside the judgment is dismissed.

RECORDED : NOT TRANSCRIBED

The respondent seeks that the applicant pay the costs of the motion of today of $600. I consider that as the applicant has been unsuccessful, despite his claim of inability to pay, it is appropriate that such an order be made. The sum sought is appropriate and should be set under Rule 21.02(a) of the Federal Magistrates Court Rules.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 27 November 2003