NAMI v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The appellant, as I shall describe him, has filed a notice of appeal. The appeal purports to be from the judgment of Magistrate Driver given on 21 October 2002. On that day Magistrate Driver made orders dismissing the appellant's application for judicial review of a decision of the Refugee Review Tribunal given on 23 June 2002. The Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa. The Tribunal found that the application for a protection visa was "fraudulent". 2 The background to the order made by Magistrate Driver is as follows. The application for judicial review was set down for hearing before Magistrate Driver on 13 September 2002. On that date the appellant did not appear. However, as appears from the transcript of the proceedings on that date, he faxed to the court a medical certificate from a doctor. That medical certificate stated that the appellant was unfit for work for a period of three weeks from 10 September 2002. 3 Magistrate Driver adjourned the hearing until 2.15 pm on 21 October 2002. He also made orders granting leave to the appellant to discontinue his application by filing a notice of discontinuance up to and including 27 September 2002. If no such notice of discontinuance was filed, the appellant was directed to file and serve on the Minister on or before 27 September 2002, an amended application setting out at least one available ground of review and also to file and serve particulars of any such ground of review. 4 The orders made on 13 September 2002 further provided that if the appellant failed to comply with the previous orders the Court would dismiss the application without a further hearing pursuant to rule 13.03 of the Federal Magistrates Court Rules 2001 (Cth) ("FMCR"). Rule 13.03 of the FMCR provides, among other things, that if a party fails to comply with an order of the Court, the Court may on the application of another party or of its own motion, make an order to end the proceedings or any other order that it considers appropriate. 5 On 21 October 2002, the matter again came before Magistrate Driver. Once again the appellant did not appear. So far as the material before me goes, no explanation was provided to the Court for that non-appearance. 6 Magistrate Driver, according to the transcript of the proceedings on 21 October 2002, referred to the orders made on 13 September 2002. He then made orders dismissing the proceedings in accordance with rule 13.03 noting in particular the appellant's failure to comply with the earlier directions requiring him to file and serve an amended application. 7 Mr Reilly who appears on behalf of the Minister has pointed out two matters. First, although the appellant has filed a notice of appeal, in truth the decision of the Magistrate is an interlocutory decision in respect of which leave to appeal is required. Secondly, FMCR, rule 16.05(2)(a) provides that the Court may vary or set aside any order after it has been entered if the order was made in the absence of a party. It may therefore still be open to the appellant to apply to the Magistrates Court to re-open the proceedings, dismissing the order that was made on 21 October 2002. Of course, if any such application were to be made it would be a matter for the Magistrates Court to determine. 8 Since the appellant is unrepresented, the appropriate course is to treat the notice of appeal as an application for leave to appeal from the interlocutory decision of the learned Magistrate. The appellant has not, however, put forward any grounds that would suggest that the Magistrate erred in making the orders he did on 21 October 2002. On 13 September 2002 the Magistrate took account of the medical certificate, despite its unsatisfactory terms, by adjourning the proceedings until 21 October 2002. The appellant has not suggested that he was unaware of the proceedings on 21 October 2002. On the contrary, he has confirmed that he was aware that the hearing was to take place. There is nothing to suggest that the Magistrate was in error in concluding that the terms of the order made on 13 September 2002 had not been complied with. Nor is there any reason for thinking that the power relied upon by the Magistrate was not enlivened as at 21 October 2002. 9 I should add that I have examined the reasons given by the Tribunal for its decision. The reasons contain some extremely strong findings adverse to the appellant. In essence, the Tribunal concluded that his claims were largely or wholly invented and that his evidence was not credible. There is nothing on the face of the material that I have seen that suggests that the appellant has any genuine basis for judicial review of that decision. In saying that I take into account, of course, the judgment of the High Court in Plaintiff S157/2002 v Commonwealth [2003] HCA 2. In these circumstances, the appropriate course is that the application for leave to appeal should be dismissed and I propose to make that order. 10 The usual order for costs will be made, that is the appellant will be ordered to pay the costs of the Minister in respect of the notice of appeal and the application for leave to appeal. The orders I make, therefore, are that: