NBKY v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 426

FEDERAL COURT OF AUSTRALIA

NBKY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 426

Migration Act1958 (Cth) s 417

Federal Court Rules Order 52 rule 15(1)(a)

NBKY v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 367 OF 2005

HELY J
6 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 367 OF 2005

BETWEEN:	NBKY APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	6 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1The application for leave to appeal and an extension of time in which to file and serve a notice of appeal be 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 367 OF 2005

BETWEEN:	NBKY APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	6 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 18 October 2000 Stone J dismissed an application under the former s 476 of the Migration Act1958 (Cth) (‘the Migration Act’) for a review of a decision given by the Refugee Review Tribunal (‘the RRT’) on 17 May 2000 affirming a decision of the Minister’s delegate not to grant the applicant a protection visa. Her Honour dismissed the application because she said that the errors of law alleged in the application were not particularised and in reviewing the papers her Honour could find no evidence of any error of law on the part of the RRT.

2. Her Honour found that the applicant’s claim failed before the RRT essentially because the RRT did not accept the applicant as a credible witness.  The RRT described the applicant’s evidence as ‘clearly the product of fabrication, forgery and last-minute embellishments’.  The applicant was not represented in the proceedings before Stone J and I accepted evidence given this morning that the reason he was not then represented was that he could not afford a lawyer.  Clearly enough, the applicant is not to be criticised for not being legally represented in those proceedings.

3. On 14 December 2000 the applicant sought judicial review of the RRT’s decision in the High Court as a member of the Lie class action.  On 29 May 2003, pursuant to leave granted by the High Court, the applicant filed an individual application seeking orders nisi in respect of the RRT’s decision.  This application was remitted instanter to the Federal Court.  The applicant gave evidence before me this morning, which I accept, that he chose to pursue the proceedings in the High Court rather than seeking to appeal from the decision of Stone J because legal representation was available to him in the High Court and because it was less expensive than continuing to prosecute the Federal Court proceedings himself.

4. On 20 February 2004 the application which had been remitted to this Court together with 707 other applications was dismissed by Emmett J. No application has been made for leave to appeal from that decision. On 18 March 2004 the applicant’s solicitor wrote to the Minister requesting the exercise of her discretion under s 417 of the Migration Act in the applicant’s favour. On 16 December 2004 the Department of Immigration and Multicultural and Indigenous Affairs advised that the application under s 417 of the Act was refused. On 4 March 2005 the applicant applied to this Court for an extension of time within which to appeal from the judgment of Stone J. This application has been made over four years after the period in which a notice of appeal could be filed and served in accordance with Order 52 rule 15(1)(a) of the Federal Court Rules.

5. In his affidavit in support of the application, the applicant asserts that Stone J erred in not finding that the RRT denied natural justice to the applicant because the RRT failed to put to him that it considered that the charge sheets and warrants which he provided to the RRT were forgeries. There is no substance in this ground for a number of reasons. First, as s 476(2)(b) of the Act then stood, denial of procedural fairness was not a ground of review which was available before the primary judge. Second, the applicant was aware or should have been aware from the delegate’s decision and the country information extracted in that decision, that the genuineness of documents such as arrest warrants and charge sheets was likely to be in issue. Third, it is apparent from the RRT’s reasons for decision that the genuineness of the copies of the arrests and charge sheets produced by the applicant was discussed at the hearing. At page 6 of the decision it is noted that the charge sheets bore a date after the supposed hearing to which the sheets related. The RRT dismissed as ridiculous the explanation given by the applicant’s advisor that in Bangladesh a charge sheet takes a long time to prepare and is only completed subsequent to the court hearing into the charges laid against the person.

6. A further indication that the fabrication of documents in Bangladesh was the subject of discussion at the hearing can be found at page 9 of the RRT’s decision where reference is made to the fact that the applicant ‘went vague on the question as to the impossibility of faking documents in Bangladesh’.  Ms Avenell, who appeared for the applicant on this application, frankly recognised the difficulties confronting the applicant in seeking to argue special reasons for the grant of an extension of time based on this ground of appeal.  However, she submitted that it may be possible for a case of actual bias or improper purpose to be worked up based upon the RRT’s actual decision.

7. In Ms Avenell’s submission, it was at least arguable that the RRT was affected by some improper purpose or by actual bias because the RRT never appeared to believe anything the applicant said.  Moreover, it made credibility findings based upon the failure of the applicant to explain matters which he could not reasonably have been expected to explain.  She pointed to the criticism of the applicant’s adviser made on page 6 of the RRT’s decision in relation to the dating of the copies of the charge sheets and arrest warrants in support of her contention.

8. In my view, it would be entirely inappropriate for the applicant to gain an extension of time within which to appeal from her Honour’s decision in order to propound the case of actual bias and improper purpose which was not put at first instance and which is based only upon inferences from the RRT’s decision.  Another, and in my opinion, preferable way of looking at the matters upon which Ms Avenell relies, is that they are simply examples of the RRT doing what it ought to do, namely, giving the applicant the opportunity of commenting upon or explaining matters which were of concern to the RRT.

9. In essence, the proposition is that an extension of time should be granted so that an effort can be made to establish for the first time a case not previously articulated.  In my view, the applicant has not established special reasons why an extension of time should be given.  The applicant has not established even a reasonably arguable case on appeal, let alone a case of sufficient strength to overcome a four-year delay in seeking its prosecution.

10. The applicant chose to pursue the proceedings in the High Court and before Emmett J, which sought review of the decision of the RRT rather than pursuing an appeal from the decision of Stone J in this Court.  Whilst there may be good reasons why the applicant made that choice, the fact is that he did so.  No reason has been shown why the applicant should now be permitted to change the course which, with the benefit of legal advice, he then charted.

11. The application for leave to appeal and an extension of time to file and serve a notice of appeal should be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:            15 April 2005

Counsel for the Applicant:	Ms M Avenell
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	6 April 2005
Date of Judgment:	6 April 2005