SZKFR v Minister for Immigration - [2007] FMCA 987

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKFR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 987

MIGRATION – Refugee – application for reinstatement – applicant did not appear at first court date or subsequent date before Registrar – applicant did not provide explanation for non attendance – futility in reinstatement – application dismissed.

Migration Act 1958 (Cth), ss.91R(3), 422B, 425, 424A, 424A(3)(b), 424A(1), 424A(3)(a)
Federal Magistrate Court Rules, r.16.05

Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61
Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759
NAMW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 264
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Ethnic AffairsvWu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] 205 CLR 507
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872

Applicant:

SZKFR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 537 of 2007

Judgment of:

Nicholls FM

Hearing date:

7 June 2007

Date of Last Submission:

1 June 2007

Delivered at:

Sydney

Delivered on:

7 June 2007

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Appearance by Solicitor:

Ms. B. Anniwell

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The application made on 17 May 2007 is dismissed.
The applicant pay the first respondent's costs set in the amount of $1000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 537 of 2007

SZKFR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore: Revised)

I have before me an application filed in this Court on 17 May 2007, seeking that orders made by a Registrar of this Court on 5 April 2007 be set aside.
These orders relate to an earlier application made by the applicant on 16 February 2007 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 5 January 2007 and notified to the applicant on 6 February 2007. This decision affirmed an earlier decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
The applicant is a citizen of Nepal who arrived in Australia on 23 May 2006 and sought protection in Australia on the basis of fear of religious persecution and imputed political opinion.
The relevant material before the Court reveals:
(1)An application to this Court filed on 16 February 2007 seeking judicial review of the Tribunal’s decision. The grounds of the application are:
“1.There is abreach (sic) of the rule of Natural Justice in the making of this decision.
2.The tribunal member made assumptions on my christian activities and did not identify my evangelistic activities.
3.The Tribunal member did not deal with the important issue of the lack of protection against those who seek to convert others to Christianity.”
(2)The affidavit of the applicant made on 15 February 2007, accompanying the application, which annexed a copy of the Tribunal’s decision record. The affidavit repeated these grounds in similar (but not identical) terms, and added the following:
“The Tribunal member took country information that supported her point and ignored information that did not support his decision.”
(3)This matter first came before a Registrar of this Court (the first Court date) on 29 March 2007. The applicant did not appear before the Court on that date. Orders were made by the Registrar adjourning the matter until 5 April 2007, and ordering the first respondent to notify the applicant of the time, date and place of the adjourned hearing, and of any application the respondent would seek to make at that time.
(4)The affidavit of Hervee Dupont Dejean, a solicitor in the employ of the respondent’s solicitors, made on 4 April 2007, (and filed in Court on 5 April 2007) annexing a copy of a letter to the applicant addressed to her address for service, complying with the orders made by the Registrar.
(5)The applicant did not appear on 5 April 2007. A Registrar of this Court dismissed the application by reason of the applicant’s failure to appear, and amongst others, made orders that the first respondent notify the applicant of the orders made on that day, and of Rule 16.05 of the Federal Magistrate Court Rules 2001.
(6)A letter sent by the Minister’s solicitors to the applicant at the applicant’s address for service by Express Post which enclosed a copy of the affidavit of Hervee Dupont Dejean and a copy of the Minister’s written submissions filed with the Court on 1 June 2007. This letter reminded the applicant that the application for reinstatement was listed for hearing on 7 June 2007 at 2pm before me in Court 7A, John Madison Tower (Respondent’s Exhibit 1).
(7)The affidavit of Hervee Dupont Dejean of 30 May 2007, with annexures (which were also earlier put before the Court by way of tender by the first respondent during cross examination of the applicant). Ms. Dejean affirmed:
(a)That a letter dated 23 February 2007 was sent to the applicant at the applicant’s address for service, informing her of the details of the first directions hearing date, and that no reply had been received to that letter (Respondent’s Exhibit 2 and Annexure “A” to the affidavit).
(b)That a letter dated 30 March 2007 was sent to the applicant, informing her of the orders made on 29 March 2007 by the Registrar (Respondent’s Exhibit 3 and Annexure “A” to the affidavit).
(c)That a letter dated 11 April 2007 was sent to the applicant, informing her that she had failed to attend at the second directions hearing, and that orders were made in her absence including the dismissal of her application (Respondent’s Exhibit 4 and Annexure “C” to the affidavit). No reply was received to this letter (paragraph 4 of the affidavit).
(d)That a letter dated 8 May 2007 was sent to the applicant, again informing her of the orders made by the Registrar and seeking payment of costs ordered by the Registrar (Respondent’s Exhibit 5 and Annexure “D” to the affidavit).
(8)An application of 17 May 2007 currently before the Court for consideration.
(9)An affidavit of the applicant made on 17 May 2007, accompanying the application of 17 May 2007, in the following terms:
“1.that my application was dismissed without any notification and I did not get the rest of the copy when I put my application.
2.I did not get any correspondence from the Ministers solicitors in relation to the adjournment of my hearing of 5 April 2007.”
(10)Written submissions filed by the first respondent on 1 June 2007.
The applicant appeared before me today, unrepresented. The applicant was assisted by an interpreter in the Nepalese language. Ms.B.Anniwell appeared for the first respondent. I explained to the applicant at the commencement of the hearing, that in effect, there were two relevant issues for the Court to consider in relation to her current application which sought reinstatement of her original application to this Court. That is, the issue of her failure to attend before the Registrar and whether any useful purpose would be served in any event in reinstating her application now. That is, in effect, whether the Tribunal’s decision was such that jurisdictional error may be found.
The first issue involved the applicant's explanation, if any, for her failure to attend at both the first Court date and on the subsequent date before the Registrar on 5 April 2007. The second issue was, notwithstanding the issue of the applicant’s explanation, that with reference to the Tribunal's decision and to the material put before the Court by the applicant, whether there was such merit in the substantive originating application made to the Court such that would cause the Court to reinstate the application. I explained to the applicant, the issue was, whether there were matters arising from this material that would suggest prospects of success that would make the reinstatement of the substantive application not to be an exercise in futility.

Failure to attend

In relation to her explanation for her failure to attend, the applicant relied on her affidavit of 17 May 2007. The applicant was also cross-examined by Ms. Anniwell. The applicant's evidence was that she did not receive any correspondence from the Minister's solicitors in relation to her matter before the Court. Further, when she filed the originating application in the Court's Registry, she did not receive, (and I understood this to mean she did not receive back from the Registry), parts of the application form, on which, were noted the time and place of the first Court hearing. The applicant submitted that for those reasons she did not know she was required to attend both at the first Court date and the subsequent date before the Registrar.
The evidence of Ms. Dejean reveals that at least four letters were sent to the applicant, and each of those letters were sent to the address which appears on the original application to this Court as the applicant's address for service. I note further that on the current application before this Court, the address for service given by the applicant remains the same. The evidence of Ms. Dejean is that she caused each of those four letters (that is, those letters at annexures “A” to “D” in her affidavit of 30 May 2007) to be sent to the address for service provided by the applicant herself and addressed to the applicant at that address.
I also have before me Respondent's Exhibit 1, a letter, dated 4 June 2007, from the Minister's solicitors which was sent to the applicant again at the same address for service providing the applicant with a copy of written submissions, and the affidavit of Ms. Dejean to which I have already referred.
In her evidence to the Court, the applicant confirmed that the address provided on the applications to the Court was her address for service, but maintained that she never received any of the five letters sent by the Minister's solicitors.
The applicant also gave evidence to the Court that with reference to the address for service, that she used to live at this address but no longer lived at this address. She confirmed however, that this was and continues to be the address for correspondence.
The evidence before the Court is that the first respondent's solicitors have sent five letters in all, to the applicant, addressed to the applicant, at the address for service provided by her in: her originating application, and in an address for service form provided by the applicant in her current application before the Court. Further, this address, was and is, an address for correspondence confirmed by the applicant herself.
I note that if it were the case that the applicant had changed residential addresses but for whatever reason maintained this as her address for service, and where this may have presented some unknown difficulty for her in accessing correspondence sent to her, then at least at 17 May 2007, she must have known that her proceedings before the Registrar had been dismissed. That of course is the date on which she made the current application to the Court and would have known therefore, that she “missed” attendance before the Registrar. From that date until today, the applicant has taken no steps to provide an alternative effective address for service.
It cannot be that an applicant provides an address for service, and maintains an address for service, with the intention of ensuring that any relevant correspondence will not therefore reach her. No change in the address for service has been provided to the Court at least as at, or since, 17 May 2007. Nor has the applicant provided any satisfactory explanation as to why five letters sent to the address for service provided by her were not received by her. In all the circumstances therefore, I find the applicant's explanation that she did receive any correspondence from the Minister implausible and I do not accept it.
In addition to her claim that she did not receive any letters from the respondent’s solicitors, an explanation which I have already said I reject as forming a basis for setting aside the orders made by the Registrar, the applicant also stated in her affidavit of 17 May 2007 that she “did not get the rest of the copy when I put in my application”.
I understood this to mean that she did not receive back from the Court's Registry that part of the application form on which the Registry staff ordinarily note the time and date of the first Court date. I should note that the applicant, as Ms. Anniwell submitted, appeared to give contradictory evidence in this regard, in that at first, she appeared to give evidence that she had been given a full copy of the (stamped) application form, but then said that she was only given those parts absent the pages revelant to the issue of the first Court date.
There is of course, no other evidence before the Court as to what may have occurred at the Court's Registry at the time of the applicant's filing of the originating application. The Court can only proceed on the evidence provided to it. But even in circumstances where the Court's Registry may have failed to provide the applicant with that relevant notification, what remains is that the applicant has not explained why relevant letters sent by the respondents, notifying her of the first Court date and subsequent Court date, were not received by her.

Futility in reinstatement

However, I am of the view, with reference to the Tribunal's decision record which is put before the Court by the applicant herself as an attachment to her affidavit of 15 February 2007, and with reference to the matters asserted by the applicant both by way of her originating application and before the Court today and in her affidavit of

15 February 2007, that it would in any event be futile to reinstate her application now and allow the matter to proceed any further.
On the material before me now I cannot see that that application has any prospects of success. The applicant's claims to protection were based on the Refugee Convention grounds of religion and imputed political opinion. They arise out of her claimed circumstances to be a Christian convert in Nepal who, as she said, had a duty to proselytise. For this reason the applicant claimed she would face persecution from the Nepalese state, from Maoists in Nepal, from Hindu fundamentalists in Nepal, from her family who remain in Nepal, and that protection would not be available to her.
The applicant was assisted, it appears, by a migration adviser for the purposes of the review before the Tribunal. The adviser, from the material before the Court, made an additional claim on behalf of the applicant that women in Nepal in the applicant's circumstances were subject to discrimination. The applicant also claimed before the Tribunal, persecution on the basis of her membership of the “Newari caste” and that she faced harm from other members of her caste in circumstances where she had converted to Christianity.
The applicant appeared before the Tribunal and gave evidence. The adviser made submissions, and the Tribunal took evidence from a witness nominated by the applicant for that purpose. The Tribunal's “Findings and Reasons” for its decision appear at pages 19 to 23 of the Tribunal’s decision record as attached to the applicant’s affidavit of

15 February 2007. The Tribunal:
1)Found it had some concerns about the plausibility of some aspects of the applicant's account. In particular, it expressed concerns about her claim to have become a Christian in Nepal and contradictions in her account of her attendance at a Nepali language church in Bangkok.
2)Found she had exaggerated her interest in Christianity before coming to Australia and that this in turn cast doubt on her claims to have fallen out with her family because of her evangelical activities.
3)Noted that a person can become what is described as a “refugee surplus” as a result of events. That is, a person can become a refugee as a result of events that have occurred after leaving the country of claimed persecution. In this regard, the Tribunal also noted the provisions of s.91R(3) of the Migration Act (“the Act”).
4)Accepted that the applicant attended church in Australia, and said that it could not find with confidence that the applicant was not a Christian despite what it found to be the exaggeration of claimed events prior to coming to Australia.
5)As a result of these findings, the Tribunal considered her claims in light of the applicant being a Christian.
6)Based on independent country information available to it, the Tribunal accepted that there was a prohibition in Nepal on persons engaging in religious conversion of others, but found that the conversion of persons is allowed with no penalty. Further, it found that in the context of societal responses to her conversion, the Tribunal was led to have doubts that she was estranged from her family.
7)Found, even if this were true, the Tribunal was satisfied ultimately that the fear of harm from her family was remote.
8)Found, in relation to the claim that members of her own caste, that is the “Newari caste”, might attack her and make her revert to Hinduism, the Tribunal found that this was “speculation” on the part of the applicant (page 20.8) and, based on independent information available to it, the Tribunal did not consider that there was a real chance of persecution from her own caste.
9)In relation to the claim that as a member of a foreign based evangelical church in Nepal, she would evangelise and would face persecution by, variously, the Nepalese state, the Maoists and/or Hindu extremists, the Tribunal found, (based on the applicant's evidence of her activities in proselytising and on independent country information available to it), that Christians or evangelical Christians engaged in this type of proselytizing activity would not face serious harm from Maoist extremists, Hindus or the state.
10)Also found that in relation to the claim that Christians and converts to Christianity faced discrimination, that this did occur occasionally in Nepal, but did not amount to a well founded fear of persecution for a Convention reason as it arose or was based on Christian conversion or evangelical activity.
11)Considered the applicant's claim in relation to her mother having received extortion letters from Maoists and found it plausible that her family did receive such letters, but further found that there was no evidence of any extortion attempts after 2005.
12)Found that her claim of personal contact with the Maoists was not plausible, and if this had in fact occurred the applicant would have mentioned it earlier in the presentation of her claims to the Tribunal.
13)Addressed the claim made on the applicant's behalf by her adviser that women, and also women estranged from their families, face discrimination in Nepal and was not satisfied on the evidence before it the applicant had a well-founded fear of persecution on that basis.
In all, therefore, the Tribunal found that the applicant did not have a well founded fear of Convention related persecution in Nepal and affirmed the decision under review.
The original application to this Court asserts a breach of the rules of natural justice in the making of this decision. It is, however, as Ms. Anniwell submitted before the Court today, the case that given the time of the making of the application for review to the Tribunal, which post dates the introduction of s.422B to the Act, a decision to which s.422B of the Act applies, making the matters set out in Div.4 of Pt 7 of the Act the exhaustive statement of the natural justice hearing rule (of course, absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61).

The applicant, in her originating application to the Court, does not particularise what aspect of the natural justice hearing rule, let alone as expressed in Div 4 Pt 7, that the Tribunal is said to have breached. However, before me today the applicant's complaints were that the Tribunal did not look carefully at her claims, did not consider her claims, did not look at all of the evidence before it, and rejected the application even though there was a real problem for her in Nepal.
I will deal with those specific assertions below. But in the context of the Tribunal's obligations, and the Tribunal's statutory obligations in relation to natural justice, on the material before me, what is clear is that the Tribunal did invite the applicant to a hearing in discharge of its obligation pursuant to s.425 of the Act. The applicant attended, as did her adviser who also made submissions on her behalf, and as did a witness who gave evidence on her behalf. From the Tribunal's account of what occurred at the hearing, there is nothing to show that the hearing was not a meaningful opportunity for the applicant to put forward her claims. That is, there is nothing to show that the hearing was a “hollow gesture” or an “empty shell” (Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759, per Goldberg J. at [31]). Nor has the applicant made any specific complaint before the Court in that regard.
In context of s.424A of the Act, the Tribunal did rely on a range of information in the making of its decision. But this was information either provided by the applicant herself at the hearing, or in writing to the Tribunal such that this information was provided to the Tribunal for the purposes of the application for review, and fell within the exception contained in s.424A(3)(b) of the Act, from the requirements of s.424A(1) of the Act.
Further, I note that while the Tribunal's decision record reveals that the applicant submitted a statement to the first respondent's Department, “She also submitted a statutory declaration to this Tribunal (dated

20 November 2006) which contained identical information”, such that this information, therefore, was also provided to the Tribunal for the purposes of the review. In the context of the Tribunal's obligations pursuant to s.424A(1) of the Act, while such information may have been available to the Tribunal from an alternative source, that is, the statement to the first respondent's Department, such information was nonetheless provided to the Tribunal by the applicant for the purposes of the review such that such information fell within the exception contained in s.424A(3)(b) of the Act.
Also, the Tribunal relied on independent country information. But none of this information appeared specifically to be about the applicant, or another person. It therefore came within the exception contained in s.424A(3)(a) of the Act from the requirements set out in s.424A(1) of the Act (NAMW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 26).
The Tribunal also heard evidence from a witness nominated by the applicant for that purpose. The Tribunal put to the applicant that it had some difficulties with her witness evidence (page 10.3). However, a plain reading of the Tribunal's decision record reveals that the Tribunal did not rely on the witness's evidence in rejecting the applicant's claims, such that it could be said to be a part of the reasons for the decision. This evidence essentially related to the time when both the applicant and the witness were at the Nepalese Embassy in Bangkok. The witness’s evidence, can be described generally as his involvement with the applicant in religious worship, supporting her claim to have been ultimately a Christian. The Tribunal accepted and assessed the applicant's claims on the basis of her being a Christian. This was information known to the applicant, provided to the Tribunal for the purposes of the application for review. It was not information relied on by the Tribunal as part of its reasons for rejecting the applicant's claims. To the extent that it may be inferred that the Tribunal may not have relied on this evidence as corroborating the applicant's claims to be a Christian, then in any event the Tribunal proceeded on the basis that the applicant was a Christian.
While the applicant asserts a breach of the rules of natural justice, there is nothing before the Court to point to anything that would show that the Tribunal failed in its statutory (or for that matter, general law) obligations in this regard.
The applicant's second stated ground in the original application is that the Tribunal did not deal with or identify the applicant's “evangelical activities” and presumably, therefore, the complaint is that the Tribunal failed to deal with this issue. However, any plain reading of the Tribunal's decision record contradicts this complaint. The Tribunal's account of what occurred at the hearing reveals that the Tribunal discussed the issue of her Christian activities and in particular her evangelical activities with her at the hearing (page 8).
Further, it put to the applicant independent country information relevant to its consideration of this issue (see generally what is set out at pages 8.4 to 9.5 of the Tribunal's decision record). Further, the Tribunal noted independent country information available to it, relating to proselytising in Nepal (see pages 12.3 and 13.3 of its decision record). Relevantly, in that part of its decision record dealing with its consideration and its analysis of the applicant's claims, that is where it set out its “Findings and Reasons”, the Tribunal specifically found on the issue of the applicant's (“evangelistic”) or evangelical, or proselytising activities, as follows:
“However, in my view, the material submitted did not support the claim that Nepalese Christians or evangelical Christians in Kathmandu were facing serious harm and systematic and discriminatory conduct because of their religion, or because of a political opinion imputed to them.”
The Tribunal's decision record reveals that it specifically focused on how, and what, the applicant's evangelical activities had been, and were to be in the context of if she were to return to Nepal. In my view, the applicant's complaint that the Tribunal did not identify her evangelical activities cannot be made out. The Tribunal's analysis proceeded on the basis of the applicant's own identification of what these activities were.
I should also just note further, it is not exactly clear what the applicant complains of with the claim that the Tribunal “made assumptions” on her Christian activities. The Tribunal's decision record reveals it dealt with the applicant's claims to be a Christian convert on the basis of what the applicant herself said, and by applying country information available to it. In all, therefore, the applicant's complaint that the Tribunal did not identify the applicant's evangelistic activities or that it “made assumptions” on her Christian activities do not reveal jurisdictional error on the part of the Tribunal.
The applicant also complains that the Tribunal did not deal with the issue of a lack of protection relating to those who seek to convert others to Christianity. The Tribunal did consider this issue. It found (at page 20.2):
“I am satisfied that Nepal's Constitution prohibits activities of people who engage in the religious conversion of others, an activity punishable by fines or imprisonment for citizens of Nepal. I accept that such treatment has the potential to amount to persecution, however I consider the evidence reliable that personal conversion is allowed…and that converts generally do not fear to admit their affiliations in public.”
The Tribunal did consider the issue of protection by the state of those who seek to convert others. It found that the state’s treatment of this issue had the potential to amount to persecution.
“However I consider the evidence reliable that personal conversion is allowed…and that converts generally do not fear to admit their affiliations in public.”
Having generally considered the issue of protection of those who seek to engage in religious conversion, the Tribunal then went on to consider the applicant’s specific circumstances. For example, various aspects relevant to the applicant's conversion, the societal responses to this, and the claims relating to members of her own caste. Then (at page 21.2), specifically, and relevantly, to this ground, it dealt with the issue of the applicant's complaint that as a member of a foreign based evangelical church in Nepal she would evangelise if she were to return to Nepal. The applicant claimed as a result of this, she would face persecution by the state, by Maoists and/or by Hindu extremists.
Ultimately the Tribunal found that the prospective proselytising activity, as described by the applicant herself, and as relating to her, was not the type of activity which was regarded as illegal by the authorities. Further, that the applicant had been unable to point to any recent incidents relating to, amongst others, evangelical Christians being subject to serious harm in Kathmandu.
Even further, and ultimately, this specific issue was subsumed in the Tribunal's ultimate finding relating to Nepalese Christians, and evangelical Christians. It found that the material before it did not support the claim that such persons faced serious harm and systematic and discriminatory conduct in Nepal. Having arrived at this conclusion the Tribunal did not need therefore to specifically, and separately, further focus on the protection afforded by the state to those who seek to convert others to Christianity. This is particularly so given that the Tribunal found that the harm feared by the applicant in this context would not amount to serious harm for the purposes of the Refugees' Convention.
The applicant also complains, by way of what appears to be an additional “ground” in her affidavit of 15 February 2007, that the Tribunal relied only on country information that supported her point, (meaning the Tribunal member’s point of view) and ignored information that did not support the decision made. There is no evidence however, before the Court, that the Tribunal ignored any independent country information submitted by the applicant, or referred to by her. Nor in her complaint, despite being given the opportunity today, did the applicant point to any specific country information that the Tribunal ignored. The Tribunal did note and accept some country information that was beneficial to the applicant's claims. For example, it accepted that proselytising in Nepal could, in some circumstances, constitute activity which could be regarded as illegal by the authorities. However, ultimately, in answer to this complaint, the Tribunal's assessment of country information is a factual matter for the Tribunal. (See NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13]).
The applicant's complaint therefore in this regard, and indeed to a large extent as can be said in relation to grounds 2 and 3 of the originating application, appear to be no more than a request for this Court to engage in impermissible merits review (Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at [272]).
I should add that, in the event it can be said that it is implicit in the applicant's complaints, nor can I see that the Tribunal was biased against her. I consider this as it may be said to arise out of the applicant's complaint that the Tribunal was selective in its use of country information and that this may be seen as an assertion that the Tribunal did not bring an open mind to its consideration of the applicant's circumstances.
With reference to a number of relevant authorities, namely, the High Court authority of Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17 (“Jia”), and the Full Federal Court authority of Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 41 and the Federal Court authority of VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 871, I cannot see evidence, (nor it must be said did the applicant, even inferentially, point to any possible evidence that she could bring forward) to show that the Tribunal's state of mind was such that it was committed to a conclusion already formed so as to be incapable of alteration or being persuaded differently. In all, therefore, even if it was implicit in the applicant's complaints that the Tribunal bore some bias towards her any such complaint would not succeed. Turning specifically to the complaints made today by the applicant, that the Tribunal did not look carefully at her claims, or did not consider her claims correctly, I cannot see that in all the circumstances of the material before me that such complaints rise above a request for impermissible merits review. As to the applicant's complaint that the Tribunal did not consider her claims to the extent that this may be a complaint that the Tribunal did not deal with some integer, or some aspect of her claims, this again is not evident on the material before the Court.
In terms therefore of prospects of success, in relation to whether the Tribunal's decision is infected with jurisdictional error, there is nothing in the applicant's grounds in the originating application or as expressed additionally in her affidavit, or anything in what the applicant has said to the Court today or indeed otherwise discernable to the Court in the material before it, to show that the applicant would succeed, or indeed would have any prospect of success, if the matter were allowed to proceed further.
In all, therefore, I do not accept the applicant's explanation for her failure to appear before the Registrar at the relevant times. I note further in that regard that the Registrar did not act precipitously at the first Court date, and reject and dismiss the applicant's application at that date. The Registrar gave the applicant a further opportunity to appear and made orders, for the further notification of the applicant of her opportunity to appear and progress her claims.
Secondly I cannot see, for all the reasons that I have referred to already, that there would be any utility, or that it would not be anything other than futile, to set aside the orders made by the Registrar. I cannot see that the applicant's originating application to this Court in any event would succeed, or indeed would have any prospect of success, if the matter were allowed to proceed further.
Accordingly the application made on 17 May 2007 for reinstatement of the application made to this Court on 16 February 2007 and the setting aside of the Registrar's orders made on 5 April 2007 is dismissed. The effect is of course that the Registrar's orders made on that day still stand.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Dawnie Lam

Date: 26 June 2007