NBCZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 177 (18 February 2005)

Last Updated: 7 March 2005

FEDERAL COURT OF AUSTRALIA

NBCZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 177

NBCZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1438 of 2004

MOORE J
18 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1438 OF 2004

BETWEEN:	NBCZ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	18 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time 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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1438 OF 2004

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

JUDGE:	MOORE J
DATE:	18 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex Tempore – Revised)

1 This is an application for an extension of time in which to appeal against the judgment of Emmett J of 30 August 2004 dismissing an application for orders nisi in relation to a decision of the Refugee Review Tribunal of 2 February 2004.

2 The applicant is a citizen of India. He arrived in Australia on 6 August 2003 and lodged an application for a protection visa (class XA) on 18 September 2003. On 14 October 2003 a delegate of Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant the visa. On 11 November 2003 the applicant applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. The Tribunal affirmed the decision of the delegate on 2 February 2004 and on 22 March 2004 the applicant applied for review of the Tribunal decision under s 39B of the Judiciary Act 1903 (Cth). When Emmett J dismissed the application for orders nisi with costs on 30 August 2004, his Honour stayed the orders until 20 September 2004 to give the applicant an opportunity to get legal advice and seek to have the orders set aside. The circumstances which led to this course of action may be relevant to the current application. They are set out below.

The proceedings below

3 Prior to the hearing, Emmett J made directions that the Minister file and serve a bundle of relevant documents by 7 May 2004 and that the applicant file and serve an amended application giving complete particulars of the grounds relied on by 28 June 2004. The Minister did not serve a bundle of relevant documents on the applicant until 22 July 2004. But, the bundle served on that date did not relate to the applicant. The applicant returned the bundle to the Minister's office in mid August after which he was given the correct bundle of relevant documents. The hearing took place on 30 August 2004. The applicant did not file an amended application before that date.

4 At the hearing the applicant informed the Court that he had shown the correct bundle of documents to a solicitor who told him that he would not have time to look at them prior to the hearing date and that the applicant should ask for an adjournment. Another reason the applicant sought an adjournment was so that he could collect more evidence.

5 In his reasons for judgment, Emmett J noted that he had earlier given the Minister leave to file a notice of motion for summary dismissal of the application which the Minister had not taken up. He concluded that in those circumstances it was appropriate to deal with the matter that day. His Honour went on to set out the Tribunal's decision and a summary of the grounds for review on which the applicant relied:

(1) The decision-maker erred in relying on what has become known as the doctrine of effective protection. That doctrine is no answer to the claim that Australia has protection obligations where a person is found to be a refugee within the meaning of the Convention.
(2) The decision-maker did not follow proper procedures as required by the Act. No such procedures were identified.
(3) The decision-maker’s finding that the applicant does not have a well-founded fear of persecution in India was not open to it.
(4) The decision-maker failed to assess whether the applicant’s fear of being persecuted in the reasonably foreseeable future was well-founded.
(5) The Tribunal’s findings were an error of law.
(6) The Tribunal's decision was made in bad faith.

(7) The Tribunal’s decision involved an abuse of power.

6 In dismissing the application, Emmett J noted that there was nothing in the material before him to indicate the decision of the Tribunal was other than a decision under the Act. His Honour remarked that no particulars had been furnished and that it seemed likely that the assertions were based in no manner on the reasons of the Tribunal or the proceedings before the Tribunal. His Honour made the following orders:

1.	The application for orders nisi be dismissed.
2.	The applicant pay the minister's costs of the application.
3.	Orders 1 and 2 be stayed up to and including 20 September 2004.
4.	The applicant have leave to file and serve no later than 20 September 2004 a notice of motion and affidavit in support seeking that orders 1 and 2 be set aside, such motion to be returnable before Emmett J for hearing on 24 September 2004 at 9.30am.
5.	If any such motion and affidavit is filed in accordance with order 4 then the stay shall be extended up to and including 24 September 2004.

The applicant filed an amended application on 17 September 2004.

7 It is not clear whether his Honour had regard to the amended application. However, it is unlikely it could have been treated as a notice of motion of the type his Honour gave the applicant leave to file. In essence it alleged error of law, denial of procedural fairness and bad faith on the part of the Tribunal, though mostly it set out factual claims regarding his time in India.

Application for extension of time in which to file and serve a notice of appeal

8 On 5 October 2004 the applicant filed an application for an extension of time to file and serve a notice of appeal and a supporting affidavit. No draft notice of appeal has been filed. The applicant's affidavit in support of the application states the reason for delay is because he does not have functional English. He cannot read or write English. He states that he misunderstood that he had from 24 September "i.e. 28 days time from this time" to file and serve a notice of appeal. He states this was his mistake and that he could not get legal advice because he does not have money and requests the Court take into account his language problem.

9 On one view the orders his Honour made were interlocutory and additionally leave might be required. Ultimately, however, nothing turns on that question.

10 Having regard to both his Honour's reasons and a reading of the salient parts of the Tribunal's decision, it is clear his Honour was correct in dismissing the application for the orders nisi on the basis that nothing had been put to him that the decision of the Tribunal was infected by jurisdictional error. The Tribunal's decision is a privative clause decision and this Court has no power to intervene.

11 I dismiss the application for an extension of time and order the applicant to pay the respondent's costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 7 March 2005

The Applicant appeared in person
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	18 February 2005
Date of Judgment:	18 February 2005