Applicant NACJ of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs

THE COURT: 1 This is an application for leave to appeal from a decision of Lindgren J made on 3 April 2002 dismissing the applicant's application for judicial review pursuant to O 32 r 2(1)(c) of the Federal Court Rules for failure to appear at the hearing. 2 The applicant is a citizen of Bangladesh who arrived in Australia on 25 December 1998. He applied for a protection visa on 30 December 1998. The application was refused by a delegate of the respondent Minister on 24 February 1999 and he unsuccessfully sought to review the decision with the Refugee Review Tribunal ("the Tribunal"). It affirmed the decision to refuse to grant the applicant a protection visa on 25 October 2001. 3 The applicant filed an application for judicial review by this Court on 26 November 2001. He appeared before the primary judge on 28 February 2002 for a directions hearing and was advised by his Honour that the matter would be fixed for hearing on 3 April 2002. On that occasion, the applicant filed a notice advising of a change of address for service. 4 On 3 April 2002, that is to say on the date fixed for hearing, the applicant failed to appear at the hearing. Counsel for the respondent then submitted that the proceeding should be dismissed pursuant to O 32 r 2(1)(c) of the Rules on account of the applicant's absence. The primary judge, being satisfied that, although the applicant was unrepresented, he was aware that the matter had been listed for final hearing on that day, made orders in accordance with the respondent's submissions. The primary judge, having proposed to take this course, went on to make some observations about the substance of the applicant's claims and was satisfied that there was no injustice in dismissing the application. As his Honour noted in his reasons for judgment (at [10] to [11]): "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. There is no injustice in my dismissing the application on account of the non-appearance of the applicant. " 5 A notice of appeal was filed on 23 April 2002 and the matter was listed before a Full Court on 28 August 2002. On that date, the matter was adjourned on the basis that the applicant indicated that he had failed to attend before Lindgren J because he was ill, and the Full Court was of the view that the appropriate course was for the applicant to make an application, by way of notice of motion, to a judge at first instance to have the orders of Lindgren J set aside. The Full Court directed that a notice of motion and supporting affidavit in respect of this application be filed and served within 14 days. The appeal was stood over to the call-over date. 6 On 10 September 2002, the applicant accordingly filed and served a notice of motion and supporting affidavit seeking an order that the orders of Lindgren J to be set aside. The matter was listed before Stone J on 2 October 2002. Her Honour dismissed the application on the basis that there was nothing in the application or anything put before the Court that would suggest that there had been any irregularity in the decision of the Tribunal which could surmount the difficulties posed for the application by s 474 of the Migration Act 1958 (Cth). There was therefore no utility in setting aside the orders of Lindgren J. Her Honour also noted that, whilst the applicant claimed that he had not attended the hearing because of illness, there was no independent evidence to support this claim, or any indication that he had attempted to make contact with the Court to advise of the reason for his absence. Accordingly the notice of motion was dismissed with costs.