FEDERAL COURT OF AUSTRALIA

Applicant S329 of 2003 v Minister for Immigration & Multicultural Affairs (No. 1) [2006] FCA 1503

APPLICANT S329 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NSD 1607 OF 2006

EDMONDS J

8 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an application for leave to appeal from a judgment of the Federal Magistrates Court (Baumann FM) delivered on 1 March 2006: S329 of 2003 v Minister for Immigration & Anor (No. 2) [2006] FMCA 303. 

2                     The applicant, who is a citizen of Bangladesh, arrived in Australia on 18 April 1997. He applied for a protection visa on 19 May 1997.  He claimed fear of persecution because he was a Bihari and a member of the Mohajir Qaumi Movement (‘the MQM’).  His application was refused by a delegate of the respondent (‘the Minister’) on 29 May 1997.  On 17 June 1997 the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for a review of that decision.  A hearing was held, which the applicant attended, and the Tribunal made its decision on 23 July 1998 affirming the decision of the delegate not to grant the applicant a protection visa.  The Tribunal was of the view that the applicant was not a credible witness and had fabricated his story.

3                     Some six years later, on 24 October 2005, the applicant made an application to the Federal Magistrates Court (proceeding No. SYG3075/05) challenging the decision of the Tribunal.  On 28 November 2005 the applicant attended a directions hearing assisted by a Bengali interpreter.  On that day his application was listed for hearing on 23 January 2006.  On the day of the hearing Scarlett FM and the Minister’s representatives waited for the applicant to appear, but he never did.  Counsel for the Minister asked his Honour to dismiss the applicant’s application on the basis of his failure to appear.  His Honour did so pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001 and published his reasons on 1 February 2006: S329 of 2003 v Minister for Immigration & Anor [2006] FMCA 112. 

4                     A few days after the hearing date and shortly before the publication of his Honour’s reasons, the applicant filed a notice of motion in which he sought, relevantly, an order setting aside Scarlett FM’s order dismissing his application and an order that he ‘be allowed to argue his case in full’.  The affidavit in support of the motion was sworn by the applicant on 25 January 2006.  He deposed, relevantly, as follows:

‘(3)      I was willing to attend the hearing. 

(4)       However my health was not good on that day.  I was so sick that I was not able to talk and move due to pain.  There were pain all over my body.  I had to see a doctor instead of coming to the hearing.  Medical evidence attached. 

(5)       The matter was dismissed in my absence. 

(6)       I've always been complied with court orders and attended all scheduled hearings in time.  This was very unfortunate that I was sick on the day of the hearing.  I express my apologies for that.  I will comply with hearing date next time.  

(7)               I am very poor and do not have a Medicare.  I could not afford to go to a doctor.  Therefore I am not able to provide my medical documents.’

5                     It is appropriate at this stage to say something of the decision of the Tribunal sought to be reviewed.  The Tribunal did not accept the applicant’s claims.  The applicant’s father had not been born in Bihar, a state in India, as Biharis (or their parents) are, and did not travel from there to what is now Bangladesh after Partition.  The Tribunal found that the documents relied upon by the applicant were false because, although dated several years apart, they were in the same handwriting and had the same photos of the applicant on them.  There was also a spelling mistake on the seal of the identity card.  Further, both the substance and manner of the applicant’s evidence at the hearing suggested that the applicant had fabricated his story of being a Bihari. 

6                     The Tribunal concluded that the applicant was not a Bihari or a member of the MQM and that he had no well-founded fear of persecution for a Convention reason. 

7                     On 1 March 2006 the applicant’s motion for an order setting aside Scarlett FM’s order dismissing his application and an order that he ‘be allowed to argue his case in full’ was heard by Baumann FM.  His Honour construed, correctly in my view, the motion as an application under r 16.05 which allows the court to vary or set aside its judgment or order if, relevantly, the order is made in the absence of a party.  At [5] of his reasons, Baumann FM set out the considerations which guided him in the consideration of his discretion under r 16.05.  Those considerations were: 

(1)               The applicant’s reasons for his failure to appear at the hearing.

(2)               The applicant’s prospects of success on the substantive application.

(3)               Whether any prejudice to the respondent was likely to occur.

8                     In relation to the first consideration, it did not escape his Honour that there are two manifest contradictions in the evidence given by the applicant in his affidavit, namely, that he both did and did not attend a doctor on the hearing date and both did and did not have medical documentation to support his assertion.  His Honour proceeded to question the applicant upon his affirmation at which point his Honour recounts at [8] of his reasons:

‘… when confronted with the direct question as to whether he had any [medical] documents, he says he does not.’

9                     It is unsurprising that the applicant’s explanation of why he failed to attend the hearing is not accepted by his Honour.  There being no credible explanation for the failure to appear, his Honour concluded (at [10]) that it would be open to him to dismiss the motion on that basis alone.  However, his Honour went on to deal with the two further considerations to which he was to have regard.

10                  In relation to the substantive application, his Honour observed that the applicant had, in substance, nothing to say in support of his application despite being afforded the opportunity to make submissions to his Honour that day and despite the assertions in his application and notice of motion that he had something he wished to put to the court.  In any case, his Honour found (at [16]) that the Tribunal’s finding that the applicant had fabricated his story was open to him.  Implicit in his Honour’s reasoning is that this finding meant that the applicant had little or no prospects of success in relation to his substantive application.  Finally, his Honour was satisfied (at [19]) that the Minister would suffer no relevant prejudice if the full hearing were allowed to proceed.  In those circumstances, his Honour was of the view that there was no alternative but to dismiss the motion and he did so.

11                  Some months later, on 23 August 2006, the applicant filed in this Court his application for leave to appeal from the decision of Baumann FM.  The relevant rule, O 52 r 5(2)(a), provides that an application for leave to appeal in cases such as the present shall be filed within 21 days after, relevantly, the judgment was pronounced.  The applicant, therefore, should have filed the present application by 22 March 2006.  The fact that he did not do so means that he requires dispensation referred to in O 52 r 5(3) and he has asked for that in his application for leave.  In support of his application for leave, the applicant filed an affidavit, sworn 15 August 2006, in which he deposes:

‘1.        I am the applicant in this matter. 

2.         On 11 [sic] March 2006 the Federal Magistrate Baumann dismissed the matter on an interlocutory application by the respondent. 

3.         I did not get proper opportunity to argue my case because the matter was supposed to be heard in 2007 and I suddenly received a notice to appear before the court. 

4.         This caused me not to take any legal assistance in time. 

5.         I believe that the court will understand this and let me argue the case in full.’

12                  A draft notice of appeal was also provided with the application which set out as grounds the following:

‘1.        The Honourable Federal Magistrates Court erred in law in determining whether this matter was reviewable in the Federal Magistrates Court. 

2.         The Honourable Court also erred in law determining that the Federal Magistrates Court did not have jurisdiction to review this matter.

3.         The Honourable Court failed to determine whether there was any jurisdictional error in the purported decision of the Tribunal. 

4.         I will provide more details later.’

13                  No explanation has been provided for the delay of some six months between the judgment of Baumann FM and the filing of this application for leave to appeal.  The Minister submits that, in the light of the unexplained delay, it may be inferred that the only purpose the present proceeding serves for the applicant is a collateral one, namely, by having a judicial review proceeding on foot to enable the applicant to extend his stay in Australia, referring to what was said in VWZG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1018 at [14]. 

14                  I do not need to concern myself as to whether that is a proper inference to be drawn because, at a primary level, the delay in filing this application has not been explained and is therefore inexplicable.  Leaving aside the question of whether an extension of time should be granted, there are two considerations which provide general guidance in the exercise of the discretion to grant leave to appeal.  The first relates to the prospects of the proposed appeal and has been formulated as whether the decision is attended with sufficient doubt to warrant it being reconsidered by the Full Court.

15                  The second is whether substantial injustice would result if leave were refused, supposing the decision to be wrong.  Those principles come out of the decision in Décor Corporation v Dart Industries (1991) 33 FCR 397.  As the Full Court indicated in that case, these two questions are not to be –

‘… isolated in separate compartments.  They bear upon each other so that the degree of doubt which is sufficient in one case may be different from that required in another.  Ultimately a discretion must be exercised in what may be a fine balancing of considerations.’

16                  In this case, the judgment which the applicant seeks to disturb concerned the exercise of a discretionary power.  It follows that, in considering the prospects of the proposed appeal, one must remember that the applicant must show an error in the approach of the Federal Magistrate of the kind described by Dixon, Emmett and McTiernan JJ in House v The King (1936) 55 CLR 499 in particular at 504 to 505. 

17                  For the foregoing reasons, I have come to the conclusion that even if there were material before me, which there is not, which impelled me to the conclusion that an extension of time for the filing of this application be granted, I would, in all the circumstances, have no alternative but to decline the application.  The application is dismissed with costs. 

Associate:

Dated:         22 November 2006