S232 of 2003 v Refugee Review Tribunal

[2006] FCA 207

FEDERAL COURT OF AUSTRALIA

S232 of 2003 v Refugee Review Tribunal [2006] FCA 207

S232 OF 2003 v REFUGEE REVIEW TRIBUNAL & ANOR
NSD 2344 OF 2005

GRAHAM J

15 FEBRUARY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2344 OF 2005

BETWEEN:

S232 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

GRAHAM J

DATE OF ORDER:

15 FEBRUARY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time within which to bring an application for leave to appeal from the Judgment of Justice Emmett of 9 November 2005 be dismissed.

2.        The Applicant pay the Second 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	NSD 2344 OF 2005

BETWEEN:

S232 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
SECOND RESPONDENT

JUDGE:	GRAHAM J
DATE:	15 FEBRUARY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. What is presently before the Court is an application for leave to appeal filed 28 November 2005.  That application seeks an extension of time within which the Applicant may file and serve a notice of appeal from the judgment of Emmett J of 9 November 2005, and by inference, leave to appeal from that judgment.  The application, of course, was filed out of time under Order 52 rule 10(2A)(b) of the Federal Court Rules (‘the Rules’), but it would be within the power of the Court as presently constituted to extend that time nunc pro tunc.  The First Respondent named in the application for leave to appeal is the Refugee Review Tribunal (‘the Tribunal’), which has filed a submitting appearance, and the Second Respondent is the Minister for Immigration and Multicultural Affairs, then the Minister for Immigration and Multicultural and Indigenous Affairs.

2. Mr Markus, solicitor, from the Australian Government Solicitor, appears for the Minister.  Notwithstanding the listing of the matter today and notification of that listing to the Applicant, the Applicant has not appeared.  His name was called three times outside the Court, that is to say, both his true name and the name by which he is known for the purpose of these proceedings, namely Applicant S232 of 2003.  A person claiming to be the Applicant telephoned my Associate at about 9:00 am this morning indicating that he was experiencing bad back pain and asked would it be possible for the Court to extend the time for the hearing of his application to a later date.  He was informed that it would not be possible for the time to be extended, that he should do his best to attend the Court at the appointed time, which was 11.00 am, and that if he did not attend the matter would be dealt with in his absence.  I note that the Applicant has still not appeared and it is almost midday.

3. The Respondent Minister has asked that the Court proceed with the hearing of the application in the Applicant's absence.  The application is brought under Order 52 rule 10(2A)(b) of the Rules.  By virtue of Order 52 rule 10(2A), Order 19 which deals with Motions applies to the application.  Order 19 rule 5 of the Rules relevantly provides:

   ‘The Court or a Judge may hear and dispose of a motion in the absence of any party:

   (a)where service of notice of the motion on the absent party is not required by the Rules or by an order; or …’

   This is such a case because the Applicant is the moving party.  Accordingly, I am disposed to accede to the Minister's application to deal with the matter in the absence of the Applicant.

4. The Applicant is a Bangladeshi national who arrived in Australia on 6 August 1997.  He applied for a Protection Visa on 18 December 1998.  The Minister's Delegate refused that application on 28 January 1999, whereupon the Applicant sought review of the Minister's Delegate's decision before the Tribunal.  His application for review was filed on 16 February 1999.  The Tribunal conducted a hearing on 10 May 2000 at which the Applicant gave evidence.  On 26 May 2000 the Tribunal affirmed the Delegate's decision.  On 28 May 2003 the Applicant sought relief in the High Court of Australia in respect of the Tribunal's decision by filing a draft order nisi for the issue of constitutional writs in respect of the Tribunal's decision.  That application was supported by an affidavit of the Applicant affirmed 27 May 2003. 

5. The High Court remitted the application for an order nisi to this Court, and that application was dealt with by Emmett J on 9 November 2005.  In the meantime the Court had written to the Applicant, indicating that if he wished to make additional submissions to the Court in writing as to why an order nisi should be granted he should do so by a nominated date.  No further submissions would appear to have been filed with the Court on the Applicant's behalf by the nominated date, or at all.  In the absence of any such submissions Emmett J proceeded to decide the matter on the papers on 9 November 2005.  His Honour recited the history of the matter and recorded the grounds upon which the Applicant sought the issue of constitutional writ relief in respect of the decision of the Tribunal.

6. As it transpires, the grounds specified sought to allege error on the part of the Tribunal in paragraphs (a), (b) and (c), and error on the part of the Minister's Delegate in paragraphs (d) to (g).  Plainly it was not open to the Court to grant an order nisi in respect of the Minister's Delegate's decision.  In relation to the three grounds directed at attacking the Tribunal's decision, his Honour rightly observed that no particulars were provided.  His Honour observed that the Applicant's affidavit claimed that the Minister did not send any documents or information in relation to the Applicant's claim to the Tribunal before its decision was made.  The Applicant also claimed that he was misled by the Minister into believing that the Tribunal had the documents and that, had he been aware that they were not before the Tribunal, he would have taken steps to correct the situation.

7. The Tribunal's reasons clearly stated that it had before it the Minister's file, the Applicant's Protection Visa application and written submissions in support of that application.  His Honour concluded that there was no substance in the claim which the Applicant made.  His Honour correctly indicated that on an application such as this the purpose of an affidavit in support was to provide material showing that there was at least an arguable case for the grant of the final relief claim.  His Honour observed that the material had to be more than a mere pleading or assertion of the right to the relief claimed.  It would need some evidence of facts that would support the grant of the relief. 

8. His Honour correctly observed that in the context of the relief claimed by the present Applicant there would need to be material that would show that it was at least arguable that the Tribunal had fallen into jurisdictional error in making its decision, such that orders should be made to quash the decision and restrain the Minister from acting upon it.  As his Honour correctly observed, the material before the Court did not disclose an arguable case in that sense.  I would also observe that the Tribunal's decision adverse to the Applicant was based upon the Applicant's lack of credibility.  The Tribunal observed that the Applicant was not a convincing witness, that he gave inconsistent evidence, that claims made by him were not accepted and that it was not satisfied that false cases had been raised against him.

9. The Tribunal was of the view that the Applicant did not have a well-founded fear of persecution because of his political view or for any other Convention related reason.  There is nothing to suggest that the Tribunal fell into jurisdictional error in dealing with the matter in the way in which it did.  I would note that, in relation to the current application, no affidavit in support has been filed to demonstrate that Emmett J’s decision on the application for an order nisi was attended with sufficient doubt to warrant its reconsideration and that substantial injustice would result if leave to appeal were refused.  It seems to me that the application for leave to appeal is without merit and, in the circumstances, it would seem to me inappropriate to even consider granting an extension of time within which to bring the application for leave to appeal.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham .

Associate:

Dated:             11 April 2006

Counsel for the Applicant:	The Applicant appeared in person.
Solicitor for the Respondent:	Mr A Markus of the Australian Government Solicitor
Date of Hearing:	15 February 2006
Date of Judgment:	15 February 2006