NAFG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 389 (31 March 2004)

NAFG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N2370 of 2003

JACOBSON J
31 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2370 OF 2003

BETWEEN:	NAFG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON
DATE OF ORDER:	31 MARCH 2004
WHERE MADE:	SYDNEY

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2370 OF 2003

BETWEEN:	NAFG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON
DATE:	31 MARCH 2004
PLACE:	SYDNEY

1 The appellant has filed a notice of appeal from a judgement of a Federal Magistrate given on 27 November 2003. On that date the Magistrate dismissed an application to set aside an order made on 8 October 2003 dismissing the appellant's application for review of a decision of the Refugee Review Tribunal which was handed down on 26 November 2002. The RRT affirmed a decision of a delegate of the Minister refusing to grant the appellant a protection visa. The appellant failed to appear before the Federal Magistrate on 8 October 2003 and the order which was made on that date was made in the absence of the appellant.

2 Rule 16.05(2)(a) of the Federal Magistrates Court Rules, provides that the court may set aside a judgment or order if the order was made in the absence of a party. The application which the Federal Magistrate heard and dismissed on 27 November 2003 was an application under that rule to set aside the order made on 8 October 2003. The Minister has filed a notice of objection to competency of the appeal. Ms Hartstein, who appears before me for the Minister, submits that the application to set aside the order of the Federal Magistrates Court under Rule 16.05 does not finally dispose of the rights of the parties and that the order made on that application is therefore interlocutory.

3 Section 24(1)(a) of the Federal Court Act provides that an appeal shall not be brought from a judgement of the Federal Magistrates Court that is interlocutory unless leave is granted. Leave was not sought by the appellant but the appellant appears before me today in person and it seems to me to be appropriate to exercise my power to treat the notice of appeal as an application for leave to appeal. I think I should take this approach because even though there is force in the submission put by Ms Hartstein that the order of 27 November 2003 is interlocutory, the practical effect of the order is to determine the appellant's claim adversely to him.

4 The appellant is a citizen of India who arrived in Australia on 19 October 2001. He lodged an application for a protection visa on 26 November 2001. A delegate of the Minister refused to grant a protection visa on 15 February 2002. The appellant, in his claims before the RRT, claimed to fear persecution by reason of his affiliations with the Congress Party. His evidence was that he had been absent from India for a considerable period of time between 1988 and 2001. During that period he worked, firstly in Saudi Arabia and then in Dubai. He claimed that while he was away from India, members of his family had been harassed by thugs hired by people opposed to his family's politics.

5 He claimed that when he returned to the district in the Punjab where he lived, he had been beaten by thugs who demanded money from him, he claimed that he was kidnapped and also that during elections in early 2001 his wife had been physically harassed and had suffered a miscarriage as a consequence of this.

6 The RRT put to the appellant that the Congress Party had won the 2002 elections in the Punjab and he therefore no longer had reason to fear attack from persons by reason of his political affiliations. The RRT did not accept that the appellant was targeted by members of opposing political parties because of his Congress Party affiliations.

7 The RRT gave reasons for making that finding. The RRT Member stated that she was willing to accept that demands for money had been made of the appellant by people in his village but she found that these demands were not politically motivated. The RRT Member also found that there was no evidence that the wife's miscarriage was connected with the family's politics. She also found that even if the family had been targeted by political opponents in the past, the Congress Party was now in power and the appellant's local member was a Congress Party member. The RRT therefore found that the appellant's claimed fear of persecution, by reason of his political opinion or for any other convention reason, was not well founded.

8 In the Federal Magistrate's reasons for decision of 27 November 2003, the learned Magistrate referred to the principles which deal with the exercise of the power under rule 16.05(2)(a) of the Federal Magistrates Court Rules. The Magistrate referred at [5] to the need for an applicant to explain the failure to appear when the matter was disposed of in his or her absence and, secondly, the need for such an applicant to show an arguable case. The Magistrate was prepared to proceed upon the basis that there was an explanation for the appellant's failure to appear on 8 October 2003 but the Magistrate was not satisfied that an arguable case had been shown.

9 The Magistrate referred at paragraph 9 of the judgement to the matters put by the appellant in support of the proposition that there was an arguable case. The Magistrate stated that the claims were that there had been a denial of procedural fairness constituted either by bias or because the appellant was deprived of an opportunity to put his claims to the RRT or to fully present his case to the RRT. The appellant claimed that the decision of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 76 ALJR 966, was applicable to his case.

10 The Magistrate said at [12] that there was nothing in the material put to the court to suggest that the RRT had denied the appellant procedural fairness. Nor was there anything to suggest either actual or apprehended bias. The Magistrate observed that an allegation of bias is a serious allegation and said that the claim was not made out. The Magistrate observed at [15] that no particular unfairness had been argued by the appellant and that there was nothing to suggest that the appellant had been misled or that the circumstances brought the claim within the principles referred to by the High Court in Muin.

11 The Magistrate also observed at [16] that it was apparent from the reasons for decision of the RRT that the RRT had regard to independent evidence and that it put the essence of the independent evidence to the applicant for comment. The appellant in his oral submissions to me this morning made only one submission. His submission was that the RRT did not ask him for any evidence and did not ask for proofs or verification of his claim. It seems to me that the reasons given by the Federal Magistrate for making the finding that there was no arguable case are correct. I do not think they need amplification.

12 However, there are two answers to the submission which the appellant made to me this morning. The first answer is that the High Court has said that proceedings in the RRT are inquisitorial in nature and that it is for an appellant to put before the court the evidence on which he or she relies to make good the claim that Australia has protection obligations. It is then for the RRT to decide on that material whether or not the claim has been made out; see for example Abebe v Commonwealth of Australia [1999] HCA 14; 197 CLR 510 at [187]. The proposition that it was for the RRT to ask the appellant for evidence or for verification is not correct and is contrary to what was stated in Abebe and in other authorities.

13 The second answer to the submission is that in any event, the appellant put before the RRT a document setting out his claims. The document was entitled Statement of Claims and appears on pages 26 to 27 of the Court Book. The applicant's migration agents also filed written submissions in support of the claim that the appellant had a well founded fear of persecution. These submissions commence on page 47 of the Court Book. For these reasons it seems to me that I ought to dismiss the application for leave to appeal. There is no injustice to the appellant in so doing.

14 If leave to appeal had been granted, it seems to me to be clear from what I've said about the reasons given by the Magistrate that the appeal would have been dismissed. Accordingly, the orders I make are that leave to appeal is refused and the ordinary order that I make is that costs follow the event and therefore the appellant or applicant, as he should perhaps be more correctly described, is to pay the costs of the application.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Applicant was self represented

Counsel for the Respondent:	V A Hartstein

Solicitor for the Respondent:	Blake Dawson Waldron

Date of Hearing:	31 March 2004

Date of Judgment:	31 March 2004

Federal Court of Australia

NAFG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 389 (31 March 2004)