Applicant VMAO v Minister for Immigration & Multicultural & Indigenous Affairs

the nature of the present proceeding 9 The respondent contends that the decision of Phipps FM was interlocutory in nature and that the notice of appeal in the present proceeding should thus be treated as an application for leave to appeal. I agree. Authority in this Court clearly establishes that such a decision is interlocutory in nature: NACA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 659 at [15] per Hely J. Therefore, I will treat the present proceeding as an application for leave to appeal.

the decision of phipps fm 10 Phipps FM held that he could only set aside the decision of Scarlett FM if he was satisfied that the applicant had a) provided an explanation for his failure to appear before Scarlett FM and b) some prospect of success if his original application were to be re-heard. This test is the correct test: NACA at [7] and SZACX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 97 at [33] per Beaumont J. (The authorities cited speak of a "reasonable" or "satisfactory" explanation and an "arguable case". In the present circumstances, I do not think that much turns on the difference between these words and those used by Phipps FM.) 11 I agree with Phipps FM that the applicant has not satisfactorily explained his failure to appear before Scarlett FM and shown that he would have an arguable case if his original application were to be re-heard.

Explanation for failure to appear 12 The reasons for judgment of Phipps FM set out what occurred in the lead-up to the hearing before Scarlett FM: VMAO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 197 at [3]-[6]. To put it shortly, the applicant was first informed of the date and time of the hearing before Scarlett FM - and the consequences of failure to appear - by letter from the respondent's solicitors addressed to his residential address. He was subsequently informed of the same during a telephone call by him on 5 September 2003 to Jennifer Greaves of the respondent's solicitors - in the course of which Ms Greaves asked him to contact her if he did not intend to appear before Scarlett FM. This version of events was contained in an affidavit of Ms Greaves (exhibited to which was a handwritten note by her of the telephone call). It appears that the respondent did not controvert the contents of that affidavit in his oral evidence before Phipps FM. 13 The applicant also testified before Phipps FM that he was ill on the day of the hearing before Scarlett FM and did not attempt to telephone Ms Greaves or anyone else on that day: VMAO at [7]. Phipps FM noted that the applicant did "not say that he was so ill that he could not travel into the city to at least say to the court that he was too ill to proceed " and that he failed to explain why he had not attempted to contact Ms Greaves: VMAO at [9]. Further, the applicant's "Contentions of Fact and Law" add nothing to what was said by Phipps FM on this point save a bald statement that "There was no way that I would have been able to conduct my case." 14 Before me, the applicant did not in response to my invitations choose to say anything in support of the application and also indicated that he was content to rely upon what he had already said in his "Contentions of Fact and Law". In the circumstances, I am not satisfied that Phipps FM's decision on this point was wrong and I therefore do not propose to interfere with what is akin to a finding of fact.

arguable case 15 Phipps FM sets out the basis of the applicant's claim for refugee status: VMAO at [11]-[13]. I do not propose to repeat it. In any case, I do not think it is of any relevance to my decision. 16 The applicant must show an error of law so serious that it constitutes jurisdictional error. The applicant's "Contentions of Fact and Law" allege a failure to accord him natural justice because he was not given an opportunity to comment on country information referred to in the Tribunal's reasons. Although a denial of natural justice does amount to jurisdictional error, the applicant's claim on this point raises the issue of whether the Tribunal's decision was based on that country information.

Opportunity to comment on country information 17 I consider that the country information referred to in the Tribunal's reasons comes within the scope of s 424A(3)(a) of the Act. That is, the Tribunal was not bound to provide it to the applicant, explain its relevance to him and invite him to comment on it because it was "not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member". The country information related to the human rights and security situation in the Punjab and, to a lesser extent, Haryana states of India in the context of the Sikh insurgency and the activities of certain Indian political parties. 18 In any case, the delegate's decision included much of the country information referred to in the Tribunal's reasons. The applicant was thus aware of the information and its adverse impact on his case before the Tribunal came to hear his case.

Relevance of country information to Tribunal's decision 19 I agree with Phipps FM that the Tribunal's decision turned on its view as to the applicant's credit. The burden of the Tribunal's findings and reasons was clearly upon its view as to the applicant's credit. Put simply, the Tribunal did not accept some of the most significant parts of the basis of the applicant's claim for refugee status: VMAO at [14]-[15]. 20 For that reason, even if the applicant was improperly denied an opportunity to comment on the country information, nothing turns on it. The country information was, at most, of secondary relevance to the Tribunal's decision.

leave to appeal 21 As noted at [9], I intend to treat the Notice of Appeal in the present proceeding as an application for leave to appeal. In light of the foregoing, the decision of Phipps FM is not attended by sufficient doubt to warrant its reconsideration by the Court (whether a Full Court or a single judge). See Décor Corporation v Dart Industries (1991) 33 FCR 397. As noted at [10], Phipps FM correctly stated the applicable test. I am not satisfied that his decision on the first limb of the applicable test was wrong: see [12]-[14]. Nor am I satisfied that his decision on the second limb was wrong: see [15]-[20]. 22 In determining whether to grant leave it is also necessary to consider whether substantial injustice would result if leave were refused, supposing Phipps FM's decision to be wrong. As was said in Décor at 399, the "doubt" and "injustice" questions bear upon one another. In view of the remoteness of the prospect of success on appeal, if leave were granted, it is artificial to suppose that the decision below is wrong. In the circumstances, I am not satisfied that substantial injustice would result from a refusal of leave.

conclusion 23 I refuse the applicant leave to appeal the decision of Phipps FM, strike out the notices of appeal in the earlier and present proceedings and order that the applicant pay the respondent's costs of the present proceeding. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Solicitor for the Respondent: Blake Dawson Waldron