REASONS FOR JUDGMENT
CONTI J:
9 The circumstances giving rise to the applicant's appeal may be summarised as follows. The applicant, a citizen of Bangladesh, arrived in Australia on 17 March 1999. On 29 April 1999 he applied to then Department of Immigration and Multicultural Affairs for a protection (class AZ) visa. That application was dismissed on 1 June 1999 by a delegate of the Minister. On 28 June 1999 the applicant applied to the Refugee Review Tribunal ("the Tribunal") for a review of the delegate's decision. On 26 February 2002 the Tribunal affirmed the decision not to grant a protection visa. In so doing the Tribunal found the applicant not to have given credible evidence, concluding in that regard as follows:
"After considering all of the relevant evidence, I do not believe that [the applicant] was a member of the Freedom Party or its youth wing the Jatiya Jubo Command prior to his departure from Bangladesh. It follows that I do not believe that he was attacked by members of the Awami League in the past, nor that he is at risk of attack by members of the Awami League in the future, nor that the police wish to arrest him because of his involvement with the Freedom Party. As [the applicant] does not claim to fear persecution in Bangladesh for any other reasons, I am not satisfied that he has a well-founded fear of persecution for any of the reasons contained in the Convention."
10 On 15 April 2002 the applicant applied to the Court for a review of the Tribunal's decision. The applicant appears to have prepared the application for review in his own handwriting. The grounds for review were to the effect that the Tribunal had failed to address the circumstances of the applicant's visa application, and to weigh the claims which he had advanced.
11 The application to the Court for review of the Tribunal's decision purportedly made under s 39B of the Judiciary Act 1903 (Cth) was listed for directions before Whitlam J on 7 June 2002. The applicant did not appear at the Court on that occasion, and as a consequence Whitlam J summarily dismissed the application pursuant to Order 10 rule 3(2) of the Federal Court Rules, which reads as follows:
"If no applicant appears before the Court on a directions hearing the Court may dismiss the application or make any other order which it thinks proper."
12 On 25 June 2002 the applicant filed a notice of appeal against the summary dismissal by Whitlam J of his application for review of the Tribunal's decision. The grounds of appeal were stated in handwriting (literally) as follows:
"I am not satisfied with the decision dated 07/06/02. I am genuine refugee under the United Nations Convention and protocol. My application before the Federal Court and for appearance date and time for hearing I was unfortunately absence. I am going submit further grounds of appeal shortly. I am making this appeal under section 39(B) the Judiciary Act 1903."
13 An affidavit in support of the appeal filed by the applicant on 12 August 2002, pursuant to an order made by Sackville J at a Full Court call-over held on 31 July 2002, declares and affirms literally as follows:
"I am an appellant of Full Federal Court. I was seeking a review of the RRT decision dated 26/02/02 under concerned section (error of law) of the Migration Act. I received the decision dated 20/3/02. I lodged Notice of Appeal to the Full Federal Court dated 25/06/2002. Unfortunately I failed to appear before the Federal Magistrate Court dated 7 June at 9.30am. I was confused about the date for hearing dated 7th June 2002 I was confused about the date for hearing above the dated 7/06/2002. Actually I did not received letter from The Federal Magistrate Court. I am a layman. I do not know the legal procedure of Federal Court. Due to knowledge did not appear before the Federal Magistrate Court of my hearing date. So, you kindly consider my application of appeal before the Court. For the ends of justice you accept my application for hearing. I promise it will not happen again."
At that call-over, the applicant stated through an interpreter that he "was confused because he saw two dates so he was confused in which date he was supposed to submit this appeal application".
14 This affidavit does not persuasively explain the failure to appear before Whitlam J on 7 June 2002. Nothing said by the applicant today in Court has led me to come to any different conclusion. It may be observed that application has not been made to set aside the order of dismissal made by Whitlam J under Order 35 rule 7.
15 The proceedings before the Full Court listed for hearing today have been treated as an application for leave to appeal, consistently with the decision of a Full Court in NAET of 2002 v The Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 304, and notwithstanding that in those proceedings the application had been dismissed at first instance for non-attendance pursuant to Order 32 rule 2(1)(c), and not purportedly pursuant to Order 10 rule 3(2) of the Federal Court Rules.
16 I am unable to discern any viable basis for setting aside the decision of Whitlam J, made in the exercise of his discretion, to dismiss the applicant's application for review of the decision of the Tribunal below. Moreover I have been unable to identify any error in the reasoning of the Tribunal below which could have grounded a conceivably viable application for review of the Tribunal's decision. In short any application for review of the Tribunal's decision would have been futile from the outset. In any event, the Tribunal's decision was plainly a privative clause decision within s 474 of the Migration Act 1958 (Cth), and there could be no basis for a contention to the effect that the decision could be vitiated upon grounds of exercise of power for any improper purpose or otherwise.
17 The appeal should be dismissed with costs.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.