NAMJ v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The appellant appeals from the reasons and decision of the primary Judge (see [2003] FCA 983). 2 The appellant applied for a protection visa. That application was refused by a delegate of the Minister. The appellant sought a review of that decision from the Refugee Review Tribunal ('the Tribunal'). On 20 February 2003, the Tribunal delivered its decision confirming the previous decision of the delegate. 3 The appellant instituted proceedings in this Court under s 39B of the Judiciary Act 1903 (Cth). It was alleged in the appellant's amended application that the appellant had not been fit to take part in the proceedings with the effect that the Tribunal had not complied with s 425 of the Migration Act 1958 (Cth) ('the Act'). In the alternative it was alleged that the failure of the Tribunal to accept the evidence called by the appellant as to his fitness to take part in the proceedings involved apprehended bias by the Tribunal. These were the only grounds of review raised by the appellant in his amended application. 4 These were the grounds addressed by the primary Judge in her reasons for judgment ([2003] FCA 983). In relation to the ground based on s 425 of the Act the primary Judge heard further evidence called by the appellant for the purpose of establishing that he was not fit to take part in the proceedings. Her Honour concluded that she was not satisfied that the Tribunal had not complied with the requirements of s 425 of the Act. 5 On the question whether there had been apprehended bias by the Tribunal, the primary Judge considered the reasons and processes of the Tribunal and concluded that a reasonable bystander would not have apprehended that the Tribunal had pre-judged the matter. The application for judicial review was dismissed. 6 The appellant purported to appeal from that decision. The grounds of appeal refer to the failure of the primary Judge 'to find error of law, Jurisdictional error, Procedural fairness and relief under Section 39B of the Judiciary Act, 1903'. The grounds also provide that 'The grounds and relief is very similar with a recent High Court Judgment - Muin v Refugee Review Tribunal [2002] HCA 30'. Reference is also made in the grounds of appeal to the 'Recent High Court judgment: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 1' and the 'Recent Federal Court of Australia judgment: SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 74'. What any of these cases and grounds have to do with this case, and in particular with the reasoning and the decision of the primary Judge, is not obvious and is not explained. 7 Given the deficiencies in the notice of appeal on 9 October 2003, Emmett J ordered that the appellant file and serve an amended application setting out the grounds of appeal and the particulars of those grounds by 28 November 2003. That order was not complied with. On 19 December 2003, Emmett J made the following orders (see [2003] FCA 1622): '1. the appeal be dismissed for want of compliance with directions pursuant to s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth); 2. Order 1 be stayed up to and including 18 February 2004, conditional upon there being filed, no later than 9 January 2004, an amended notice of appeal setting out the grounds of appeal and the particulars of those grounds.' 8 The appellant has not filed an amended application setting out the grounds of appeal or the particulars of those grounds. On 9 January 2004, the appellant filed a document headed 'Applicant's Submission'. That document does not reveal very much more than the current notice of appeal. Some information is given under the heading 'Particulars of actual bias', but that information does not seem to be related to the issues of apprehended bias which were considered by the primary Judge. Indeed, the only aspect of the submissions which seems to be related to the decision of the primary Judge is the bare assertion that the appellant does not agree with her Honour's judgment because her Honour did not find an error of law. Plainly enough the document headed 'Applicant's Submission' does not answer the condition in order 2 of the orders made by Emmett J on 19 December 2003, whether in form or in substance. The condition not having been met, the stay has not been effective since 9 January 2003. The appellant has filed further written submissions this morning. These cannot affect the matter. They also do not identify any error in her Honour's judgment. 9 In these circumstances the order made by Emmett J on 19 December 2003, dismissing the appeal took effect from that date and remains effective and applicable. The only order that remains to be made is as to costs. The appellant should pay the costs of the respondent in relation to this appeal. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Finn, Emmett and Selway.