FEDERAL COURT OF AUSTRALIA

NBDW v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1526

NBDW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1566 OF 2004

STONE J

23 NOVEMBER 2004

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent’s costs in the amount of $600.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an application, filed on 27 October 2004, for leave to appeal from the interlocutory orders of a Federal Magistrate made on 10 September 2004.  On that day, the Federal Magistrate summarily dismissed the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (‘Tribunal’) pursuant to Rule 13.03(2)(b) of the Federal Magistrates Court Rules and ordered that the applicant pay the respondent’s costs of the proceedings fixed in the sum of $1,200. 

2                     Rule 13.03 is as follows:

‘Rule 13.03 Default in taking required step etc

(1)               This rule applies if a party fails to take a step required by these Rules or to comply with an order of the Court.

(2)               Subject to any other order or transfer the Court may, on the application of another party in the proceeding or of its own motion, make an order:

(a)               that the step be taken within a stated time; or

(b)               to end the proceeding or dismiss a response.

(3)               The Court may make the order sought or another order that it considers appropriate.’

3                     The Federal Magistrate’s decision is an interlocutory decision and for that reason leave to appeal is required pursuant to s  24(1A) of the Federal Court of Australia Act 1976 (Cth).  An application for leave to appeal from a decision of a judge of this Court must be filed within 7 days from the date on which judgment is pronounced; O 52 r 10(2)(b) Federal Court Rules.  However the time limit for filing an application for leave to appeal from the Federal Magistrates Court is specified in O 52 r 5 which provides that where an application for appeal to the Court requires the leave of the Court it must be filed within 21 days after the judgment is pronounced or such later date as is fixed by the court or judge who pronounced the decision.  The application to this Court was filed 47 days after the date on which the Federal Magistrate pronounced judgment and is therefore out of time.  The applicant has applied for an extension of time as well as for leave to appeal.

Procedural History

4                     The application for review of the Tribunal’s decision was originally filed in this Court.  On 7 May 2004 Whitlam J, in addition to ordering that the matter be transferred to the Federal Magistrates Court, ordered that the applicant file and serve by 4 June 2004 an amended and fully particularised application together with a supporting affidavit and any evidence on which the applicant proposed to rely.  The applicant failed to comply with these orders and on 15 July 2004 the respondent’s solicitor sent a letter to the applicant advising him that the matter had been placed in the non-compliance list of the Federal Magistrates Courts for hearing on 23 August 2004. 

5                     On 23 August the Federal Magistrate made the following orders: 

‘1. That the applicant must file and amended application on or before 6 September 2004 containing at least one asserted jurisdictional error and giving particulars of each jurisdictional error alleged.

2. That is no further application is filed on or before 6 September 2004 the respondent may apply for an order in chambers dismissing the application for non-compliance with the Court’s orders on the basis that no cause of action is disclosed without further reference to the applicant.

3. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $200.00 for today and $1,200.00 if Order 1 is invoked.’ 

6                     The applicant failed to comply with order 1 and, in accordance with order 2, the respondent applied for and was granted an order made in chambers summarily dismissing the application pursuant to Rule 13.03 of the Federal Magistrates Court Rules. 

This Application

7                     The applicant says that his application for leave to appeal was out of time because he did not understand that the decision was interlocutory.  Irrespective of the reason for delay, the Court will not given leave to appeal or an extension of time in which to apply for such leave if there is no prospect that an appeal would succeed; Applicant A26 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 185 per Lander J at [23], with whom Carr and Gyles JJ agreed. 

8                     In his draft notice of appeal the applicant states that his grounds of appeal as follows:

‘(1) The procedures that were required by law to be observed in connection with the making of the decision and in connection with conduct for the purpose of making the decision were not observed.

(2) The decision involves errors of law.’

No particulars are given and no account is taken of the fact that the application to the Federal Magistrates Court was dismissed because the applicant failed to comply with the orders made by the Federal Magistrate. 

9                     On 9 November 2004 I made orders for the preparation for this matter for hearing, including that the applicant file and serve any documents on which he intended to rely in support of his application, written submissions in support of his application and a list of all relevant authorities.  The applicant has not complied with this order and, consequently, there are no particulars of the applicant’s claims before the Court. 

10                  I am satisfied that the orders made by the Federal Magistrate for summary dismissal were properly made.  In addition, I consider that ample opportunity was accorded to the applicant to comply with the various orders made and no explanation for his failure to comply was offered by the applicant before me today.  In those circumstances I would need to be convinced that there would be substantial injustice to the applicant were I not to give leave to appeal.

11                  In its reasons for decision the Tribunal stated that the applicant filed his application for a protection visa on 7 November 2003.  A delegate of the respondent refused that application on 12 November 2003 and the applicant applied to the Tribunal for a review of that decision on 15 November 2003.  On 19 February the Tribunal wrote to the applicant advising him that it was unable to make a favourable decision on the material before it and inviting him to attend a hearing on 16 March 2003.  On 8 March 2004 the applicant advised the Tribunal in writing that he did not wish to attend the hearing and give oral evidence.  The Tribunal, quite properly, then proceeded to determine the matter on the material before it.  It is not necessary to set out here the detail of the applicant’s claims.  It is sufficient to note that although the Tribunal accepted that the applicant is a Chinese national, it did not accept his claim to have had an extensive involvement with the Falun Gong movement or to have suffered persecution because of this involvement.  The basis of the Tribunal’s dissatisfaction was the lack of detail to support the applicant’s claims coupled with his rejection of the opportunity to support his claims by oral evidence at a hearing before the Tribunal.  For these reasons the Tribunal was not satisfied that the applicant had a well-founded fear of persecution should he be returned to China.

12                  I am satisfied that the applicant was given every opportunity to make his case to the Tribunal and that there is no injustice to the applicant in refusing his application for an extension of time within which to file an application for leave to appeal.  The application must be dismissed and the respondent should have its costs in the fixed amount of $600. 

Associate:

Dated:              23 November 2004