FEDERAL COURT OF AUSTRALIA

Applicant NACJ of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 441

MIGRATION – application for protection visa refused – application to obtain review of the decision of the RRT dismissed – failure by applicant to appear at the hearing before the primary judge.

Migration Act 1958 (Cth)

NAET of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 304, followed

APPLICANT NACJ OF 2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N334 of 2002

BLACK CJ, MADGWICK & ALLSOP JJ

13 DECEMBER 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The application for leave to appeal be dismissed with costs.

REASONS FOR JUDGMENT

THE COURT:

1                     This is an application for leave to appeal from a decision of Lindgren J made on 3 April 2002 dismissing the applicant’s application for judicial review pursuant to O 32 r 2(1)(c) of the Federal Court Rules for failure to appear at the hearing.

2                     The applicant is a citizen of Bangladesh who arrived in Australia on 25 December 1998.  He applied for a protection visa on 30 December 1998.  The application was refused by a delegate of the respondent Minister on 24 February 1999 and he unsuccessfully sought to review the decision with the Refugee Review Tribunal (“the Tribunal”).  It affirmed the decision to refuse to grant the applicant a protection visa on 25 October 2001.

3                     The applicant filed an application for judicial review by this Court on 26 November 2001.  He appeared before the primary judge on 28 February 2002 for a directions hearing and was advised by his Honour that the matter would be fixed for hearing on 3 April 2002.  On that occasion, the applicant filed a notice advising of a change of address for service. 

4                     On 3 April 2002, that is to say on the date fixed for hearing, the applicant failed to appear at the hearing.  Counsel for the respondent then submitted that the proceeding should be dismissed pursuant to O 32 r 2(1)(c) of the Rules on account of the applicant’s absence.  The primary judge, being satisfied that, although the applicant was unrepresented, he was aware that the matter had been listed for final hearing on that day, made orders in accordance with the respondent’s submissions.  The primary judge, having proposed to take this course, went on to make some observations about the substance of the applicant’s claims and was satisfied that there was no injustice in dismissing the application.  As his Honour noted in his reasons for judgment (at [10] to [11]):

“The Tribunal did not accept many of the claims made by the applicant and gave reasons for not doing so.  In fact the Tribunal described the applicant as a ‘grossly unreliable witness’.  The Tribunal declared itself not satisfied that the applicant faced a real chance of Convention-related persecution in Bangladesh.

No ground of review suggests itself.  There is no injustice in my dismissing the application on account of the non-appearance of the applicant. ”

5                     A notice of appeal was filed on 23 April 2002 and the matter was listed before a Full Court on 28 August 2002.  On that date, the matter was adjourned on the basis that the applicant indicated that he had failed to attend before Lindgren J because he was ill, and the Full Court was of the view that the appropriate course was for the applicant to make an application, by way of notice of motion, to a judge at first instance to have the orders of Lindgren J set aside.  The Full Court directed that a notice of motion and supporting affidavit in respect of this application be filed and served within 14 days.  The appeal was stood over to the call-over date.

6                     On 10 September 2002, the applicant accordingly filed and served a notice of motion and supporting affidavit seeking an order that the orders of Lindgren J to be set aside.  The matter was listed before Stone J on 2 October 2002.  Her Honour dismissed the application on the basis that there was nothing in the application or anything put before the Court that would suggest that there had been any irregularity in the decision of the Tribunal which could surmount the difficulties posed for the application by s 474 of the Migration Act 1958 (Cth).  There was therefore no utility in setting aside the orders of Lindgren J.  Her Honour also noted that, whilst the applicant claimed that he had not attended the hearing because of illness, there was no independent evidence to support this claim, or any indication that he had attempted to make contact with the Court to advise of the reason for his absence.  Accordingly the notice of motion was dismissed with costs.

7                     On 30 October 2002, at the Full Court call-over, the applicant served on the respondent a document entitled “Amended Grounds of Application for Review”.  The application sets out the grounds on which the applicant seeks review of the Tribunal’s decision.  It is appropriate that this application be treated as an application for leave to appeal against the interlocutory decision of Lindgren J:  see s 24(1A) of the Federal Court of Australia Act 1976 (Cth) and the recent decision of the Full Court in NAET of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 304. 

8                     Counsel for the respondent submits that the primary judge’s decision involved an exercise of discretion and that the applicant can only succeed if it can be shown that, if leave were granted, there would be reasonable prospects of the Court concluding that there had been a miscarriage of the exercise of discretion under the well-known principles stated by the High Court in House v The King (1936) 55 CLR 499:  see NAET of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at [5].  As noted, the primary judge was satisfied that the applicant was aware of the hearing, having been advised at the directions hearing on 28 February 2002 that the matter would be fixed for final hearing on 3 April 2002.  In addition to this, the primary judge also went on to review the possible merits of the application and was satisfied, on consideration of the Tribunal’s reasons, that there had been no error made even if the application were considered without regard to the privative clause restrictions of s 474.

9                     We have, as the primary judge did, considered the reasons and findings of the Tribunal to determine if there might be any substance in the grounds of review put forward by the applicant.  The applicant’s claims of persecution are based on reasons of political opinion, namely his involvement as a student leader with the Bangladesh Nationalist Party (“the BNP”).  The applicant claims that he feared persecution from members of the Awami League (“the AL”) and had fled Bangladesh in 1998, claiming amongst other things that he had been framed with the murder of a student in July 1998.  The Tribunal noted several inconsistencies between the claims made by the applicant and found that the applicant was unable to credibly argue that he was the subject of criminal charges for murder as he had claimed.  There were also inconsistencies about his occupation prior to leaving Bangladesh and his story about the fate of his successor at the local BNP branch having been killed.  The Tribunal disbelieved the applicant’s claims and found him to be, as it put it, a “grossly unreliable witness”.  In addition, the Tribunal noted that following an election in Bangladesh the BNP was now in power for the foreseeable future and that the applicant’s claims of persecution by members of the AL were not well-founded.

10                  In our opinion, there is no reasonably arguable case that the Tribunal erred in making the findings it did, in a way that may be remedied in this Court.  There are therefore insufficient prospects of success on the appeal to warrant leave being granted.

11                  The application for leave to appeal is refused with costs.

Associate:

Dated:              8 January 2003