NBCC v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2006-05-03|Before: Jacobson J

Introduction 1 This is an application for leave to appeal from a judgment of Federal Magistrate Scarlett dated 19 December 2005. His Honour refused to set aside an earlier decision made by him on 24 October 2005 dismissing the applicant's application for judicial review of a decision of the Refugee Review Tribunal ("the RRT") handed down on 27 January 2004. 2 Leave to appeal is required pursuant to section 24(1)A of the Federal Court of Australia Act 1976 (Cth) as his Honour's judgment was interlocutory; see NACA v Minister for Immigration Multicultural and Indigenous Affairs [2003] FCA 659 ("NACA") at [15]. The principles to be applied on an application for leave to appeal were stated by a Full Court in Decor Corporation Pty Limited v Dart Industries (1991) 33 FCR 397. It is unnecessary to set out the considerations referred to, the principles being well established.

Background 3 The applicant is a citizen of Malaysia. He claims to fear persecution based upon his Chinese ethnicity, stating that he was subject to discrimination at school and on other grounds which were fully set out in the decision of the RRT. The applicant also claimed that he and his family have been discriminated against by reason of their religion, due to the family's Buddhist faith. 4 The delegate refused the application for a protection visa in a decision dated 13 October 2003 and the applicant thereafter filed an application for review by the RRT. 5 The RRT invited the applicant to attend a hearing, but the applicant did not respond to the hearing invitation and did not attend the hearing. The RRT proceeded, pursuant to section 426A of the Migration Act 1953 (Cth), to make its decision on the review without further action to enable the applicant to appear. 6 The RRT said that the applicant's claims were vague and general, and that it had difficulty establishing the facts of the case. It noted that the applicant made only vague general claims of interpersonal ill-feeling, which did not amount to serious harm of a sort that could be properly described as persecution. 7 The RRT expressed doubts about the applicant's claims of discrimination in school and at his workplace. The RRT also rejected the applicant's claim of persecution on religious grounds. The RRT concluded there was nothing specific in the applicant's claims to support a finding that the applicant had a well-founded fear of persecution for a Convention reason.

Federal Magistrates Decision 8 The Federal Magistrate considered, firstly, the applicant's explanation for delay, and secondly, the application for review, as well as the decision of the RRT, in order to determine whether there was an arguable case of error of law on the part of the RRT. 9 The learned Magistrate noted that the applicant was present at a directions hearing when the matter was listed for final hearing and his Honour came to the view that in the ordinary course of events he would not regard the applicant's explanation for his failure to attend at the final hearing as sufficient. 10 His Honour then turned to the merits of the application and was of the view that the effect of the application was, in essence, to seek merits review of the decision. 11 The learned Federal Magistrate cited a number of authorities which state that, where an applicant fails to appear at an RRT hearing so that the RRT is unable to reach the requisite state of satisfaction about the claim of a well-founded fear of persecution, the inevitable consequence is that the application will be dismissed. The Magistrate concluded at [24] that he was satisfied that the applicant was aware of the time, date and place of the hearing in the Federal Magistrates Court. He came to the view that there would be no utility in giving leave to set aside the orders of 24 October 2005 because the application would be "doomed to failure".

Discussion 12 In support of his application for leave to appeal dated 6 January 2006, the applicant filed an affidavit and a draft notice of appeal. The applicant claims that the Federal Magistrate erred in rejecting his contention that the RRT ignored or failed to undertake the "required reasonable speculation" in considering whether the discrimination awaiting the applicant on return to Malaysia was for a Convention reason. 13 In NACA, Hely J said at [12] that in an application such as this, it is incumbent upon an applicant to show that if he wants the Federal Magistrate to reopen the case, there is some purpose in doing so. 14 His Honour said, in other words, that it is necessary to show an arguable case that the RRTs decision should be quashed on the grounds of jurisdictional error. 15 The applicant appeared in person this morning with the assistance of an interpreter. He did not file any written submissions and he told me this morning that he did not wish to say anything in support of the application. Nevertheless, I have taken into account the fact that he was not legally represented and I have given close attention to the application. 16 It seems to me that there is no jurisdictional error in the decision of the RRT and I cannot discern any error in the decision of the Federal Magistrate. His Honour proceeded upon the basis indicated in the judgment of Hely J in NACA. His Honour was satisfied that there was no purpose in reopening the case. 17 In my view, it follows from the above that the application must be dismissed. 18 The order that I will make is that the applicant pay the first respondent's costs of the application.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Migration Act 1953(Cth)

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