FEDERAL COURT OF AUSTRALIA

Applicant M85/2004v Minister for Immigration and Citizenship [2008] FCA 1323

APPLICANT M85/2004 v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

VID 286 of 2008

RYAN J

26 AUGUST 2008

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be dismissed.

2.                  The applicant pay the first respondent’s costs of the application, to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from orders made by Burchardt FM on 11 April 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  By a decision handed down on 6 November 2006, the Tribunal had affirmed a refusal on 20 August 2002 by a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), to grant a protection visa to the applicant.

Background

2                     The applicant is a citizen of India who arrived in Australia on 15 January 2000.  On 31 January 2002 the applicant lodged an application for a protection visa.  The applicant claimed that he had suffered persecution on the grounds of political opinion or imputed political opinion due to his participation in the Congress Party.  He claimed that his father was the organising secretary for the Congress Party in Dabra, and that he became an active member of the youth wing of the Congress Party in 1998.

3                     The applicant further claimed that, while campaigning for the position of General Secretary at a college election members of the Congress party were attacked by members of the Bharatiya Janata Party (“BJP”), Bajhrang Dal (“BD”), and Rashtriya Swayamsevak Sangh (“RSS”).  The applicant claimed that he and other Congress Party members had been injured and another had been killed.  As no action was taken by the authorities, the applicant and other Congress Party members protested until the perpetrators were taken into custody.

4                     The applicant asserted that, after the Congress Party had won the college election, he was attacked while travelling home by members of BD and RSS because of the election outcome and his life was threatened.  The applicant escaped and took shelter in a friend’s house.  The applicant claimed that, on the following day, his father had informed him that his house had been searched by BD and RSS members and, when they could not find him they had damaged his property.

5                     According to the applicant, on the advice of his father, he fled interstate to his aunt’s house but BD and RSS members came to the house and the applicant ran out the back door before they could find him.  They threatened his aunt that they would “finish the whole family” if they found him there.  The applicant further claimed that he moved to his uncle’s house, and, later, his father and uncle arranged, by paying a bribe, for an agent to procure a student visa for the applicant.  After he arrived in Australia, his family informed him that BD and RSS members were going regularly to his house in India to search for him, and he has been warned by his family not to return. 

6                     On 20 August 2002 the visa application was refused by a delegate of the Minister and, on 24 September 2002, the applicant applied to the first Tribunal for a review of that decision.  The review of the decision of the first Tribunal on 15 March 2004 was dismissed in the Federal Magistrates Court on 4 October 2005.  However, an appeal from that decision was allowed by consent in the Federal Court on 9 June 2006 and the matter was remitted to a second Tribunal and it is the decision of that second Tribunal which is the subject of the present appeal.

7                     The second Tribunal was not satisfied that the applicant was a credible witness because of inconsistencies between his statement in the protection visa application and the evidence which he gave at the hearing, particularly regarding the level of his involvement in the Congress Party, the date of the college election and the alleged subsequent incidents of violence.

8                     The Tribunal, therefore, did not accept that the applicant had the political profile which he claimed or that he had been involved in elections or any related incidents of violence.  The Tribunal also found that the applicant had never left his home in Dabra before departing for Australia.  Accordingly, the application was dismissed. 

9                     On 26 July 2007 the applicant filed an application under the Migration Act 1958 (Cth), for an order to show cause in the Federal Magistrates Court.  The applicant contended that the Tribunal had committed jurisdictional error in that it had;

(a)        misunderstood what was persecution for a Convention reason and the concept of serious harm; 

(b)        failed to consider whether the facts led to the conclusion that the applicant had a well-founded fear of persecution; 

(c)        “misunderstood what follows from its finding that the persecution did not have an official quality”;  and

(d)        failed to consider whether the harm threatened was due to political opinion held by, or imputed to, the applicant.

10                  The applicant did not appear at the hearing on 18 February 2008.  There was sent, apparently by facsimile to the Court, a medical certificate from the Mid-town Medical Centre which stated that the applicant had a medical condition which prevented him from attending work for two days on 18 and 19 February 2008. 

11                  The learned Federal Magistrate dismissed the application on the basis that the applicant had not attended the hearing as required by r 13.03A of the Federal Magistrates Court Rules 2001 (“the FMC Rules”), and had not provided a sufficient reason for his failure to attend.

12                  On 20 February 2008 the orders of the Court were posted to the applicant at the address given to the Court and the applicant was invited to have them set aside and the application reinstated pursuant to r 16.05(2)(a) of the FMC Rules.  The applicant was informed that he was required to satisfy the Court that:

(a)        he had a reasonable excuse for his failure to attend Court on 18 February 2008;  and

(b)        the application for review of the Tribunal’s decision had reasonable prospects of success.

13                  On 19 March 2008, the applicant filed an interim application seeking reinstatement of his application on the ground that his non-appearance had been caused by illness and that he had not received previous Court orders “due to different address and miscommunication [sic].”

14                  The applicant filed an affidavit on the same day in which he deposed;

‘I was sick on 18th February and following few days thats why I didn’t attend my hearing.  I would like to reinstate my matter and ask Federal Magistrate Burchardt to listen to my points please.  As this is very important for my life.  I have been sick in month of march as well and thats why got bit late [sic].’

15                  On 11 April 2008 Federal Magistrate Burchardt dismissed the application, primarily on the grounds that the applicant;

1.         had provided inadequate documentation supporting his claim that illness had prevented him from attending the initial hearing; 

2.         had not complied with the earlier procedural orders regarding the filing of materials and, accordingly, had provided insufficient documentary support for his application;  and

3.         had failed to appear at the reinstatement hearing, an omission which the learned Federal Magistrate considered had also been inadequately explained.

16                  His Honour also considered that there was nothing in the filed material to suggest that the applicant’s attendance and further oral submissions would have advanced the matter in any way.  In dismissing the application, Burchardt FM noted that the applicant had informed the Court that morning that he would be unable to attend the hearing due to food poisoning.

17                  On 1 May 2008 the applicant filed an application for leave to appeal to this Court.  In the draft notice of appeal and affidavit supporting the application, the applicant claims that the Tribunal had been guilty of jurisdictional error and that he had been prevented by illness from presenting his case to the Federal Magistrates Court.

18                  On 15 May 2008, Registrar Josan directed, amongst other things, that;

‘4.        No later than five clear working days before the hearing date, the applicant file and serve written submissions upon which the applicant seeks to rely in support of the application and in support of any appeal, were the Court to grant an extension of time and/or leave to appeal, so that the Court is able to assess in the application whether there is any utility in granting the extension of time and/or leave to appeal.’

That direction has not been complied with and the applicant has not filed any written submissions. 

19                  On 22 May 2008, the Minister filed a Notice of Objection to Competency (“the Notice”).  Paragraph 1 of the Notice seeks that the application for leave to appeal be dismissed because it had not been filed within seven days after the date on which the interlocutory judgment had been pronounced, as required by O 52 r 10A(2)(b) of the Federal Court Rules (“the FCA Rules”).

20                  However, O 52 r 10A(2)(b) of the FCA Rules applies only to interlocutory judgments of the Federal Court, not the Federal Magistrates Court.  Pursuant to O 52 r 5(2)(a), the application for leave to appeal was filed within 21 days of the orders of the Federal Magistrate.  Accordingly, par 5 in the application seeking dispensation from O 52 r 5(2)(a) was not required and was, accordingly, unnecessary. 

21                  In par 2 of the Notice, the Minister claims in the alternative that;

‘The grounds raised in the application for leave to appeal and the draft notice of appeal are without merit;’

22                  There was no appearance by or on behalf of the applicant when the appeal was called on for hearing this morning.  Accordingly, it is open to the Court to dismiss the application for leave to appeal pursuant to O 35A r 2 of the FCA Rules, because the applicant has failed to comply with an order of the Court in the proceeding, that being the direction of Registrar Josan, and, has failed to prosecute the proceedings with due diligence by attending on the hearing of the appeal this morning. 

23                  However, Ms Hamnett of Counsel for the Minister has invited me to consider the written submissions which were filed on behalf of the Minister and to indicate the Court’s view, on the merits, as it were, of the application.  In those written submissions, Counsel for the Minister submitted that the applicant had provided insufficient grounds or particulars of error in the application for leave to appeal.  In order to succeed in the application, it was submitted, the applicant must establish that there has been some error in the exercise of the Federal Magistrate’s discretion;  see House v The King (1936) 55 CLR 499, at 505-505.  In the Minister’s submissions, the findings of the Federal Magistrates Court were open to it on the material before it and there had been no error in the exercise of its discretion pursuant to r 16.05 of the FMC Rules by dismissing the application to set aside the orders made on 18 February 2002.  Accordingly, it was contended, the application for leave to appeal should be dismissed with costs.

24                  As this is an application for leave to appeal from the refusal of the Federal Magistrates Court to reinstate the application for judicial review, the applicant has in fact taken the course indicated by Young J as appropriate in those circumstances in MZWXC v The Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172.  His Honour there said, at [9];

‘The appropriate course for the applicant to adopt would have been to apply to have the decision of O’Dwyer FM set aside pursuant to r 16.05(2), rather than appealing in this Court.  It has been doubted, in any event, whether this Court can entertain an appeal from a decision to dismiss an application for want of appearance:  see the judgments of Sundberg J in MZWIK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 185 (“MZWIK”) and VOAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1505.’

Young J then continued, at [12] and [13];

‘12       Rather than proceeding under s 25(2B)(bb)(ii), I propose to adopt the course taken by Sundberg J in MZWIK, and consider whether there is sufficient merit in the appeal to justify the grant of leave.  This seems preferable where the course the applicant should have taken is to make an application in the Federal Magistrates’ Court under r 16.05(2).

13        I cannot see any basis for impugning O’Dwyer FM’s decision.  It is clear that his Honour has the power to dismiss an application for non-appearance of an applicant, and nothing in the notice of appeal evinces any irregularity in the exercise of that power.  The applicant’s non-appearance before O’Dwyer FM remains unexplained.  In these circumstances, the appeal has no prospect of success.’

25                  In my view, those observations can be paraphrased to apply with similar force to the present case.  It is true that the applicant did make an application to the Federal Magistrates Court, apparently under r 16.05(2) of the FMC Rules, but he did not appear to prosecute that application and his non-appearance remains unexplained except for the laconic suggestion, unsupported by any medical evidence, that he was suffering from food poisoning.  In addition, the applicant has failed to comply with procedural directions given by this Court and has failed to appear on the hearing today. 

26                  I am satisfied in the circumstances that there is nothing on the face of the record to suggest that Burchardt FM’s exercise of discretion miscarried.  I consider, moreover, that it was entirely open to the learned Federal Magistrate to take the view which he did that the applicant had no real prospects of successfully demonstrating that jurisdictional error had been committed by the Tribunal.  In the circumstances, I conclude that it is appropriate for the application for leave to appeal to be refused with costs.  That will be the order of the Court. 

Associate:

Dated:         28 August 2008