FEDERAL COURT OF AUSTRALIA

Applicant S146 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 502

APPLICANT S146 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NSD 14 OF 2006

EDMONDS J

9 MAY 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

Edmonds J:

Introduction

1                     Thisis an appeal from a judgment of the Federal Magistrates Court (Scarlett FM) dismissing an application for an order nisi quashing a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 28 December 2001, which affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) not to grant a protection visa.

Background

2                     The appellant is a citizen of Nepal who arrived in Australia on a temporary business visa on 30 November 1998.  On 11 January 1999 he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’).

3                     The appellant’s claims were set out in that application.  In summary, the appellant claimed to fear persecution in Nepal by reason of his political opinion.   He claimed he was an active member of the Nepalese Congress Party.  The appellant claimed attempts had been made to kill him by Maoist hit-squads.  The appellant claimed he had been harassed, threatened, attacked and abused many times and that he was afraid to return to Nepal.

4                     On 19 February 1999, a delegate of the Minister made a decision refusing to grant the appellant a protection visa.

The Tribunal

5                     On 18 March 1999 the appellant sought review of this decision by the Tribunal.  In that application, the appellant stated that further information ‘will be sent later’.  Ultimately, however, no further evidence was provided to the Tribunal.

6                     By letter dated 8 November 2001,  the Tribunal notified the appellant, and his adviser, that it had considered the available material but was unable to make a decision in the appellant’s favour on that information alone.  The letter invited the appellant to attend a hearing on 11 December 2001 to give further evidence and present argument in support of his claims pursuant to s 425(1) of the Migration Act 1958 (Cth) (‘the Act’).

7                     The Tribunal did not receive any response and on 7 December 2001 an officer of the Tribunal contacted the appellant’s adviser by telephone.  The adviser told the officer that he would call back but no such call was received and, accordingly, the Tribunal proceeded to consider the appellant’s claims without conducting a hearing.  The Tribunal made its decision on 28 December 2001.

8                     The Tribunal handed down its decision on 30 January 2002.  In its decision, the Tribunal noted the appellant had provided only vague details in support of his claims and, in particular, no details had been provided as to when the events claimed had occurred or as to the nature and extent of the threats and attacks made.

9                     The Tribunal took into account independent evidence to the effect that the Nepalese authorities were making ‘genuine and effective efforts to protect the lives of the country’s citizens’.  The Tribunal also noted that although the appellant had been warned that the material which had been provided was not sufficient, no further evidence had been submitted.

10                  In these circumstances, the Tribunal found itself unable to be satisfied as to the reliability or the significance of the appellant’s claims in relation to his involvement in the Nepalese Congress Party and, in particular, in relation to his being of adverse interest to the Maoists.  Accordingly, the Tribunal was unable to be satisfied that the appellant had experienced persecution such that he was in need of protection.  

The Federal Magistrates Court

11                  On 23 April 2003, the appellant applied for an order nisi in the High Court.  The grounds relied upon asserted, inter alia, that the appellant had been misled by his migration agent and that his case had not been properly submitted.  On 25 August 2003, the application was remitted to this Court by order of Heydon J, and thence to the Federal Magistrates Court by order of Emmett J on 5 August 2005.

12                  The matter came before the Federal Magistrate on 15 December 2005, at which time the appellant appeared in person.  The appellant filed submissions the content of which was referred to, and addressed by, his Honour in his reasons for judgment.

13                  Addressing the appellant’s submissions, his Honour found, in summary, that:

1.                  The appellant’s complaints regarding the Tribunal’s actions relating to the invitation to attend a hearing and the making of a decision in the absence of a hearing could not be sustained:  at [15] – [16];

2.                  there was no evidence of bad faith, bias, either actual or apprehended, or a failure to make a bona fide attempt to exercise jurisdiction on the part of the Tribunal: at [17] and [23];

3.                  the challenge to country information was a challenge only to factual materials and amounted to no more than an attempt to undertake a merits review: at [18];

4.                  there was no want of logic on the part of the Tribunal in the decision reached by it: at [19];

5.                  there was no evidence of any failure by the Tribunal to perform any duty and no evidence of jurisdictional error: at [22].

14                  The Federal Magistrate noted two decisions of this Court, which had found that it was ‘virtually impossible’ for an appellant to successfully challenge a Tribunal’s decision in circumstances where he had failed to attend a hearing: SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306; and SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811.

15                  His Honour also noted the delay in the commencement of proceedings for a Constitutional writ, the application for an order nisi having been filed more than a year after the Tribunal made its decision, and concluded that: ‘… the delay in commencing these proceedings is itself sufficient to justify the Court declining to exercise its discretion to grant relief”: at [27].

The Appeal

16                  The notice of appeal purportedly sets out three ‘grounds’ of appeal.  The first expresses disagreement with the decision of the Federal Magistrate.  In grounds 2 and 3, the appellant claims his Honour: ‘heavily relied alone on the part of my failure to attend the hearing before the Tribunal’ and that the ‘judge did not use all the means at his disposal to produce the fundamental evidence that the Tribunal is legally correct…’. 

17                  The Minister submitted that the Tribunal decision was open to it on the limited material before it, consistent with the approach taken by the Full Court of this Court in SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225.  Given that the appellant did not accept the invitation to attend a hearing, or attend before the Tribunal on the date provided, or provide any further evidence despite being warned that the existing material was insufficient, the Minister submitted that the Tribunal was entitled to proceed to a decision without taking any further action to allow the appellant to appear before it, pursuant to ss 424 and 426A of the Act.  The Tribunal decision turned on a lack of satisfaction on the evidence before it: see Minister for Immigration & Multicultural & Indigenous Affairs  v VSAF [2005] FCAFC 72.

18                  The Minister further submitted that his Honour was correct in holding that the Tribunal’s decision was not affected by jurisdictional error.

19                  I agree with these submissions.  Moreover, the notice of appeal does not particularise any legal error in his Honour’s judgment and raises no case to answer on appeal.

20                  The Minister submitted the orders made by his Honour were in the form of a final order taking into account the particulars of the matter before him and the findings made as set out in his reasons.  The appellant has not put forward any possible basis on which a Constitutional writ might be contemplated, much less granted.  I totally agree.

Conclusion

21                  For these reasons, I dismiss the appeal with costs.

Associate:

Dated:         9 May 2006