NADM v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT WILCOX J: 1 The applicant in this proceeding filed a notice of motion seeking an order setting aside an order dismissing the proceeding that I made on 14 May 2002. The proceeding was an application for review of a decision of the Refugee Review Tribunal. 2 The applicant did not attend the hearing of the application for judicial review that had been fixed for 14 May 2002. He sent no message to the solicitors for the respondent, or to the Court, indicating any continuing interest in the matter. 3 I understand the applicant filed a notice of appeal to the Full Court against my dismissal order. He was apparently advised that the preferable course was to make application to me to set aside the dismissal order and that this course was open to me because there had been no determination on the merits. That advice was correct. Accordingly, on 21 August 2002 the applicant filed the present notice of motion. 4 I do not propose to make the order sought in the notice of motion. 5 I am not satisfied that there was a good reason for the applicant's failure to appear on 14 May. It is desirable that I summarise the history of the matter. 6 The decision of the Refugee Review Tribunal was made on 9 January 2002. The Tribunal decided to refuse the applicant's request for a protection visa. On 1 March 2002 the applicant filed an application for review of that decision. At that time, he was informed of the pilot scheme administered by the Court for the provision of free legal advice to people in his position. He elected to take advantage of that scheme and completed the necessary application form. 7 A member of the panel, Mr M. Jones, was assigned to advise the applicant. On 15 March 2002 the District Registrar sent a letter to Mr Jones advising him of the assignment. On the same day the District Registrar sent a letter to the applicant at the address he disclosed on his application. He was given the contact details for Mr Jones. Apparently there was contact between Mr Jones and the applicant but there was a problem in immediately arranging an interpreter. The applicant says Mr Jones did not subsequently contact him and there never was a conference at which advice was given. I have not heard Mr Jones' version of events. So I do not know why the communication breakdown occurred. However, it is clear that the applicant did not follow up the matter with Mr Jones. 8 On 12 April 2002 the matter came before me at a directions hearing. The applicant appeared in person, assisted by an interpreter conversant with the Bengali language. I fixed a hearing date for 2.15pm on Tuesday, 14 May 2002. I emphasised to the applicant that the matter would proceed on that day and he must attend. I warned him that, if he did not attend and there was no adequate explanation, he could expect the application for review to be dismissed. I told him this was the position whether or not he had received legal advice before 14 May. I advised him to ensure that he did obtain legal advice, so that he could make a decision about whether he should proceed with the case. 9 Despite this, it is clear that the applicant did not contact Mr Jones, in order to obtain the advice that would have been available to him. 10 As mentioned, the applicant did not appear when the matter was called for hearing at 2.15pm on 14 May. The Court had not received any message from him. I was informed by counsel who appeared for the Minister that no message had been received by his instructing solicitors. Accordingly, I dismissed the application. 11 In support of his motion to set aside the order of dismissal, the applicant filed an affidavit dated 3 June. In that affidavit he made this statement: "I was very sick and unable to attained (sic) my Federal Court hearing on the 14 May 2002." 12 The applicant did not give any details of his sickness. However he did attach to his affidavit copies of two documents apparently emanating from a medical practitioner. One of those documents is a certificate apparently in the handwriting of Dr Andrew Small. The certificate reads as follows: "20/8/02 [Applicant] is a patient of two year duration complains of 'pressure' today" 13 The other document is apparently a Medicare financial document. It includes a statement "patient since 3/2/2000". There is also the statement "episodic" and then two words which I cannot decipher. There is no documentation concerning any illness in May 2002. The applicant told me that he did not consult a doctor in May 2002. When I asked him why he did not send a message to the Court, he said he was seriously ill at that time. He said he had a telephone in his house. I do not believe he was so ill that he could not even telephone the Court; yet he did not see a doctor at that time. 14 The applicant showed me a prescription for tablets which he is taking at the present time. He told me the tablets were anti-blood pressure medication. I accept this may be so. It may be the case that the applicant has a blood pressure level which makes it desirable that he take medication. However, without medical evidence, I would not regard this as so disabling as to preclude him attending at court. There is no credible evidence that the applicant was precluded from attending court on 14 May because of illness. 15 The other matter I must take into account is whether there is any prospect of the success of the application for review. I have carefully read the Tribunal member's reasons for decision. The Tribunal did not accept the significant claims made by the applicant. The Tribunal gave reasons for this position. The applicant made clear to me today that he is deeply unhappy about the Tribunal's unwillingness to accept his evidence. However, as I pointed out to him as long ago as 12 April, and have repeated several times today, the Court has no power to review the Tribunal's findings of fact. 16 I endeavoured on a number of occasions to explain to the applicant the limited nature of the Court's jurisdiction. I invited the applicant to give me some indication of an argument that addressed the matters about which the Court could take cognisance. He was unable to do this. On each occasion he responded by complaining of the Tribunal's failure to accept his evidence. I myself have considered whether there is any discernible relevant error in the Tribunal's decision. I can find none. 17 Even if the case was evaluated under the grounds for review available before 2 October 2001, there would not, in my opinion, be an arguable case in favour of setting aside the Tribunal's decision. The legislative changes made on 2 October 2001 make the problem more difficult, from the applicant's point of view. It seems to me there is no appreciable prospect of the application for review being successful. Accordingly it would not be a proper exercise of my discretion for me to accede to the application to set aside the previous order. 18 The application to set aside the order of dismissal is refused with costs.