FEDERAL COURT OF AUSTRALIA

NBCM v Minister for Immigration & Multicultural Affairs [2006] FCA 1150

NBCM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 951 OF 2006

BENNETT J

9 AUGUST 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The name of the first respondent be changed from ‘DIMIA’ to ‘Minister for Immigration and Multicultural Affairs’.

2.                  The Refugee Review Tribunal be added as a second respondent.

3.                  The application for an extension of time to file and serve a notice of appeal is dismissed.

4.                  The applicant is to pay the first respondent’s costs of the application.

5.                  The first respondent is granted leave to forward to my Chambers within two days any evidence in support of an application for fixed costs.

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

REASONS FOR JUDGMENT

1                     The applicant applies for an extension of time in which to file and serve a notice of appeal from a judgment of Federal Magistrate Smith (NBCM v Minister for Immigration & Anor [2006] FMCA 559) dismissing his application for judicial review of a decision of the Refugee Review Tribunal under s 39B of the Judiciary Act 1903 (Cth).

2                     The explanation for delay in the affidavit filed in support of the application refers to what the applicant says was late notice of the Federal Magistrate’s decision. The affidavit also asserts that the applicant speaks, reads and writes limited English. For this reason, he says he needed help from a friend which also caused delay.

3                     While I accept that the applicant speaks little English, his explanation alone does not constitute a sufficient explanation for the delay in filing the notice of appeal. However, the delay is not extensive, as the application was filed only 16 days outside the prescribed 21 day time limit (Federal Court Rules O 52 r 15(1)).

4                     The applicant appeared in person assisted by an interpreter and initially asked for an adjournment of this proceeding. Nothing was put to the Court in support of the application for an adjournment except an expressed wish to go home and put something in writing. The applicant had at least one month’s notice of the hearing date. Absent any good reason being given, his application to adjourn the hearing was refused.

Draft notice of appeal

5                     One consideration in deciding whether to grant the extension sought is the prospect of success in any appeal.

6                     The draft notice of appeal raises four grounds. While some of the grounds raise what could constitute a basis for jurisdictional error, no particulars or supporting evidence are provided to make the alleged grounds meaningful. Nothing has been said in support of the grounds by the applicant today.

7                     The Tribunal was not satisfied the applicant has a well-founded fear of persecution for a Convention reason. At least one of the grounds of appeal, based upon an alleged failure by the Federal Magistrate and the Tribunal to recognise the principle of non-refoulment (ground 1), does not seem to be applicable.

8                     The third and fourth grounds of appeal each assert a lack of bona fides on the part of Tribunal. It is well established that a mere unsupported assertion of a lack of bona fides is insufficient to found a finding of jurisdictional error (SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [43] and [44]).

9                     The second ground of appeal in the draft notice purports to deal with ‘the way the Tribunal dealt with the Appellant and his representative’. I take it that that raises the issue of the procedural history of this matter before the Tribunal. The procedural history is set out in the Tribunal’s reasons and was not disputed by the applicant before the Federal Magistrate or before me. In summary, the Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The letter copied to the applicant’s home address was returned unclaimed. However, the applicant subsequently advised the Tribunal that he wanted to give oral evidence.

10                  The Tribunal rescheduled the hearing and advised the applicant of the new hearing date by letter sent to his adviser’s address. His adviser’s address was the applicant’s address for receiving mail and his adviser was an ‘authorised recipient’ within the meaning of s 441G of the Migration Act 1958 (Cth) (‘the Act’). Subsequently the adviser informed the Tribunal orally that the applicant would attend the rescheduled hearing. The applicant did not attend the hearing or contact the Tribunal to explain his failure to attend. The applicant asserts that he was not notified of the rescheduled hearing.

11                  The Tribunal concluded that it was entitled to proceed with the hearing pursuant to s 426A of the Act. The Federal Magistrate considered the procedural history in some detail and went through that history with the applicant. His Honour concluded that the applicant was properly notified of the rescheduled hearing (at [10]), that the Tribunal had acted in compliance with the Act and the Migration Regulations 1994 (Cth) (at [10]), and that the Tribunal was entitled to proceed (at [12]). The applicant has not asserted any specific error on the part of the Tribunal or his Honour in coming to that conclusion and none is apparent to me.

Section 424A

12                  A further matter, again not raised by the applicant, arises from a consideration of the Tribunal’s decision. That is whether the Tribunal complied with s 424A(1) of the Act. Two issues arise in this context.

13                  First, in his application to the Tribunal in the section which provides ‘[p]lease tell us why you consider yourself to be a refugee’, the applicant stated ‘[p]lease see my file at DIMIA’. The Department file included a statement made by the applicant to the Department dated 19 March 2003 (‘the statement’). No further factual matters were raised in the application to the Tribunal. In the circumstances, the statement falls within s 424A(3)(b) of the Act and was information to which s 424A(1) did not apply.

14                  Second, after setting out the applicant’s claims in summary form, the Tribunal stated:

‘Having considered the Applicant's evidence, the Tribunal is not satisfied that the Applicant has a well-founded fear of persecution within the meaning of the Convention. This is because the Tribunal finds the Applicant’s claims vague and inconsistent.’

15                  The Tribunal then gave some examples of inconsistencies and detail lacking in the applicant’s claims and repeated:

‘The Tribunal is not satisfied, on the evidence before it, that the Applicant has a well-founded fear of persecution within the meaning of the Convention.’

16                  In so doing, the Tribunal is explaining its reasoning process. The Tribunal is not obliged by s 424A(1) of the Act to set out that reasoning process in writing and give the applicant notice of that reasoning (SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [206]). The Tribunal had written to the applicant prior to the hearing stating that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. In the absence of further information from the applicant, in its reasons the Tribunal simply explained that conclusion and the reasons for it in greater detail.

17                  Federal Magistrate Smith concluded that the essential reason for the Tribunal’s decision was its inability to be satisfied of the applicant’s claims on the ‘skimpy’ evidence before it as a result of the applicant’s failure to attend the hearing (at [14]). I agree with his Honour’s conclusion. It follows that the applicant has not established good prospects of success in any appeal as he has failed to raise matters that would demonstrate jurisdictional error on the part of the Tribunal or error on the part of the Federal Magistrate.

Conclusion

18                  Leave for an extension of time to file and serve a notice of appeal is refused and the application is dismissed.

19                  The applicant is to pay the first respondent’s costs of the application. The first respondent is granted leave to forward to my Chambers within two days any evidence in support of an application for fixed costs. If appropriate, I will make such an order in Chambers.

Associate:

Dated: 28 August 2006

The Applicant appeared in person.