FEDERAL COURT OF AUSTRALIA

Applicant VMAO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 427

Migration Act 1958 (Cth), s 424A(3)(a)

NACA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 659, cited

SZACX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 97, cited

VMAO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 197, referred to

Décor Corporation v Dart Industries (1991) 33 FCR 397, cited

APPLICANT VMAO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

VID 932 OF 2003 & VID 453 OF 2004

SUNDBERG J

MELBOURNE

18 APRIL 2005

THE COURT ORDERS THAT:

1.                  The notice of appeal in proceeding VID 932 of 2003 be struck out.

2.                  Leave to appeal in proceeding VID 453 of 2004 be refused.

3.                  The notice of appeal in proceeding VID 453 of 2004 be struck out.

4.                  The applicant pay the respondent’s costs in proceeding VID 453 of 2004.

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

REASONS FOR JUDGMENT

background

1                     On 13 March 2001, the applicant lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth) (“the Act”).  On 27 June 2001, a delegate of the respondent refused to grant the applicant a protection visa.  The applicant’s application to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision was unsuccessful.

2                     The applicant applied to this Court for a review of the Tribunal’s decision.  That application was transferred to the Federal Magistrates’ Court and was listed for hearing on 22 September 2003.  On that day, the applicant failed to appear and Scarlett FM dismissed his application on that ground.

3                     The applicant then filed a Notice of Appeal in this Court against the decision of Scarlett FM (proceeding VID 932 of 2003) — I shall refer to this proceeding as “the earlier proceeding”.  The earlier proceeding came on for directions before Weinberg J, who advised the applicant that he should apply to the Federal Magistrates’ Court to have the decision of Scarlett FM set aside.  The applicant duly did so and the matter was listed for hearing.

4                     On 29 March 2004, the applicant appeared before Phipps FM and gave evidence as to the reasons for his failure to attend before Scarlett FM.  For reasons I will outline later, Phipps FM dismissed the application to have the decision of Scarlett FM set aside.

5                     The applicant then filed a Notice of Appeal in this Court against the decision of Phipps FM (proceeding VID 453 of 2004) — I shall refer to this proceeding as “the present proceeding”.  Black CJ directed that the appellate jurisdiction of the Court in the present proceeding be exercised by a single judge of the Court.  The present proceeding came on for hearing before me on 13 April 2005.

the earlier PROCEEDING

6                     The current status of the earlier proceeding is unclear.  According to the Court’s internal systems, the earlier proceeding has been finally disposed of.  However, the respondent proceeded under the apprehension that it remained on foot and asked me to strike it out on the basis that it was of no utility because it had been overtaken by events.

7                     I agree.  The decision of Scarlett FM has been superseded by that of Phipps FM.  Therefore, the earlier proceeding no longer serves any purpose useful to the applicant.  In any case, I note that the applicant — so far as I can gather — confined his “Contentions of Fact and Law”, filed after the decision of Phipps FM, to that decision.

8                     In light of the confusion surrounding the disposition of the earlier proceeding, I do not intend to make an order as to the costs of the earlier proceeding.

the nature of the present proceeding

9                     The respondent contends that the decision of Phipps FM was interlocutory in nature and that the notice of appeal in the present proceeding should thus be treated as an application for leave to appeal.  I agree.  Authority in this Court clearly establishes that such a decision is interlocutory in nature: NACA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 659 at [15] per Hely J.  Therefore, I will treat the present proceeding as an application for leave to appeal.

the decision of phipps fm

10                  Phipps FM held that he could only set aside the decision of Scarlett FM if he was satisfied that the applicant had a) provided an explanation for his failure to appear before Scarlett FM and b) some prospect of success if his original application were to be re-heard.  This test is the correct test: NACA at [7] and SZACX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 97 at [33] per Beaumont J.  (The authorities cited speak of a “reasonable” or “satisfactory” explanation and an “arguable case”.  In the present circumstances, I do not think that much turns on the difference between these words and those used by Phipps FM.)

11                  I agree with Phipps FM that the applicant has not satisfactorily explained his failure to appear before Scarlett FM and shown that he would have an arguable case if his original application were to be re-heard.

Explanation for failure to appear

12                  The reasons for judgment of Phipps FM set out what occurred in the lead-up to the hearing before Scarlett FM: VMAO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 197 at [3]-[6].  To put it shortly, the applicant was first informed of the date and time of the hearing before Scarlett FM — and the consequences of failure to appear — by letter from the respondent’s solicitors addressed to his residential address.  He was subsequently informed of the same during a telephone call by him on 5 September 2003 to Jennifer Greaves of the respondent’s solicitors — in the course of which Ms Greaves asked him to contact her if he did not intend to appear before Scarlett FM.  This version of events was contained in an affidavit of Ms Greaves (exhibited to which was a handwritten note by her of the telephone call).  It appears that the respondent did not controvert the contents of that affidavit in his oral evidence before Phipps FM.

13                  The applicant also testified before Phipps FM that he was ill on the day of the hearing before Scarlett FM and did not attempt to telephone Ms Greaves or anyone else on that day: VMAO at [7].  Phipps FM noted that the applicant did “not say that he was so ill that he could not travel into the city to at least say to the court that he was too ill to proceed ” and that he failed to explain why he had not attempted to contact Ms Greaves: VMAO at [9].  Further, the applicant’s “Contentions of Fact and Law” add nothing to what was said by Phipps FM on this point save a bald statement that “There was no way that I would have been able to conduct my case.”

14                  Before me, the applicant did not in response to my invitations choose to say anything in support of the application and also indicated that he was content to rely upon what he had already said in his “Contentions of Fact and Law”.  In the circumstances, I am not satisfied that Phipps FM’s decision on this point was wrong and I therefore do not propose to interfere with what is akin to a finding of fact.

arguable case

15                  Phipps FM sets out the basis of the applicant’s claim for refugee status: VMAO at [11]-[13].  I do not propose to repeat it.  In any case, I do not think it is of any relevance to my decision.

16                  The applicant must show an error of law so serious that it constitutes jurisdictional error.  The applicant’s “Contentions of Fact and Law” allege a failure to accord him natural justice because he was not given an opportunity to comment on country information referred to in the Tribunal’s reasons.  Although a denial of natural justice does amount to jurisdictional error, the applicant’s claim on this point raises the issue of whether the Tribunal’s decision was based on that country information.

Opportunity to comment on country information

17                  I consider that the country information referred to in the Tribunal’s reasons comes within the scope of s 424A(3)(a) of the Act.  That is, the Tribunal was not bound to provide it to the applicant, explain its relevance to him and invite him to comment on it because it was “not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”.  The country information related to the human rights and security situation in the Punjab and, to a lesser extent, Haryana states of India in the context of the Sikh insurgency and the activities of certain Indian political parties.

18                  In any case, the delegate’s decision included much of the country information referred to in the Tribunal’s reasons.  The applicant was thus aware of the information and its adverse impact on his case before the Tribunal came to hear his case.

Relevance of country information to Tribunal’s decision

19                  I agree with Phipps FM that the Tribunal’s decision turned on its view as to the applicant’s credit.  The burden of the Tribunal’s findings and reasons was clearly upon its view as to the applicant’s credit.  Put simply, the Tribunal did not accept some of the most significant parts of the basis of the applicant’s claim for refugee status: VMAO at [14]-[15].

20                  For that reason, even if the applicant was improperly denied an opportunity to comment on the country information, nothing turns on it.  The country information was, at most, of secondary relevance to the Tribunal’s decision.

leave to appeal

21                  As noted at [9], I intend to treat the Notice of Appeal in the present proceeding as an application for leave to appeal.  In light of the foregoing, the decision of Phipps FM is not attended by sufficient doubt to warrant its reconsideration by the Court (whether a Full Court or a single judge).  See Décor Corporation v Dart Industries (1991) 33 FCR 397.  As noted at [10], Phipps FM correctly stated the applicable test.  I am not satisfied that his decision on the first limb of the applicable test was wrong: see [12]-[14].  Nor am I satisfied that his decision on the second limb was wrong: see [15]-[20].

22                  In determining whether to grant leave it is also necessary to consider whether substantial injustice would result if leave were refused, supposing Phipps FM’s decision to be wrong.  As was said in Décor at 399, the “doubt” and “injustice” questions bear upon one another.  In view of the remoteness of the prospect of success on appeal, if leave were granted, it is artificial to suppose that the decision below is wrong.  In the circumstances, I am not satisfied that substantial injustice would result from a refusal of leave.

conclusion

23                  I refuse the applicant leave to appeal the decision of Phipps FM, strike out the notices of appeal in the earlier and present proceedings and order that the applicant pay the respondent’s costs of the present proceeding.

Associate:

Dated:              18 April 2005