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[2002] FCAFC 360
Federal Court of Australia (Full Court)
2002-11-06
Conti J, Whitlam J, Madgwick J, Conti JJ, Emmett J
Original judgment source is linked above.
REASONS FOR JUDGMENT MADGWICK J: 1 I agree with the order proposed by Conti J and generally with his Honour's reasons. It seems to me too that, even taking the most expansive view of any legal error that one might be able to conjure up in the approach of the Refugee Review Tribunal ("the Tribunal"), there is nothing which could surmount the very high hurdle constituted by s 474 of the Migration Act 1958 (Cth). 2 I should also record that the applicant chose, after many opportunities had been extended to him, not to put any evidence before the Court as to why he had failed to attend the directions hearing before Whitlam J on 7 June 2002. 3 I observe from the papers in the appeal book that the applicant filed his original application to the Court himself on 15 April 2002 and succeeded in persuading the Registrar that the fee for such application should be waived. A Court Officer inscribed in the application at the relevant place that the time and date for hearing was: "9.30 am, Friday 7th June 2002." 4 It is the practice of officers of the Federal Court Registry to bring such dates firmly to the attention of litigants in person. If that were not enough, the solicitor for the respondent, took the wise precaution on 14 May 2002 of writing to the applicant and having posted on 15 May 2002 a letter which advised him: "Your case is before the Court on 7 June 2002 at 9.30 am and it is important that you go to Court at that time." 5 Finally, on 11 June 2002 a solicitor in the employ of the solicitors for the respondent advised the applicant orally, in answer to his claim that he was confused about the date and had not realised he had needed to be before the Court on 7 June 2002, that he should: "contact the Court to discuss as the [Court] has the power to set aside orders in certain circumstances, but that he needs to discuss this [with the Court]." 6 In my opinion nothing has been shown to indicate that Whitlam J erred nor has any other acceptable circumstance been suggested which would indicate that there is any injustice in permitting the order made by Whitlam J to stand. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
REASONS FOR JUDGMENT EMMETT J: 7 I agree that no error has been demonstrated on the part of Whitlam J in the exercise of the discretion conferred under O 10 r 3. I have considered the reasons of the Tribunal. The Tribunal, after considering the relevant evidence, did not believe that the applicant was a member of the Freedom Party or its youth wing prior to his departure from Bangladesh as he claimed. The Tribunal also did not believe various other claims made by the applicant on the basis that it did not find him to be a credible witness. For that reason the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for any of the reasons contained in the United Nations Convention Relating to the Status of Refugees (1954). 8 There is no basis for suggesting that the Tribunal did not make an honest attempt to deal with the question before it or that it knowingly exercised its power for an improper purpose. In the circumstances it appears to me that the application would have been doomed to failure even if it had been considered on the merits. I agree that any application for leave should be refused and that the notice of appeal should be dismissed as incompetent. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
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.
Solicitor for the Respondent: Blake Dawson Waldron
NAFP of 2002
Minister for Immigration & Multicultural & Indigenous