Azarcon v Refugee Review Tribunal [2002] FCAFC 349 (5 November 2002)

Last Updated: 21 March 2003

FEDERAL COURT OF AUSTRALIA

Azarcon v Refugee Review Tribunal [2002] FCAFC 349

HERMENIA AZARCON v REFUGEE REVIEW TRIBUNAL

N511 of 2002

MADGWICK, EMMETT AND CONTI JJ

5 NOVEMBER 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N511 of 2002

BETWEEN:	HERMENIA AZARCON APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL RESPONDENT
JUDGE:	MADGWICK, EMMETT AND CONTI JJ
DATE OF ORDER:	5 NOVEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. leave to appeal is refused;

2. the purported appeal is dismissed;

3. the applicant must 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	N511 of 2002

BETWEEN:	HERMENIA AZARCON APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL RESPONDENT

JUDGE:	MADGWICK, EMMETT AND CONTI JJ
DATE:	5 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(revised from transcript)

MADGWICK J:

1 This is an application for leave to appeal from a judgment of Whitlam J given on 10 May 2002. By that judgment, his Honour dismissed, pursuant to O 20 r 2 of the Federal Court Rules, the applicant's purported appeal from a decision of the Administrative Appeals Tribunal ("the AAT") given on 27 February 2002. The proceedings arose out of a request by the applicant under the Freedom of Information Act 1982 (Cth) for all of her files relating to her efforts to gain permanent residency status in Australia.

2 The AAT affirmed the respondent's decision to refuse to grant the applicant access to documents requested by her. The AAT was satisfied that the respondent, the Refugee Review Tribunal ("the RRT"), had no such documents and therefore there were no documents to which the RRT could give the applicant access. The AAT's finding was of course a finding of fact.

3 By her notice of appeal to the Court from the decision of the AAT, the ground specified by the applicant in support of the orders sought was as follows:

"FOI

The tribunal said there is no document exist in my name. And the refugee tribunal officer said at [what was apparently a conciliation conference held on 7 November 2001] there is document in my name but it is a man.

In 1994 Medical examination for permanent residence, I didn't receive a copy or result of my medical."

4 On the hearing of a motion before his Honour brought by the RRT to dismiss the applicant's purported appeal to the Court, as his Honour observed, the notice stated no question of law to be raised on the appeal and there was no such question suggested by the evidence admitted or anything said before his Honour.

5 His Honour pointed out that it is only an alleged error of law which founds an appeal to the Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from the AAT and as there was no such error alleged or discernible from the material, his Honour held that there was no reasonable basis for the appeal. In so doing, his Honour said that he was quite conscious of the exceptional caution with which the power to order summary dismissal must be exercised and referred to the well-known case of General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129. Accordingly, viewing the applicant's purported appeal as "utterly hopeless and foredoomed to failure", his Honour dismissed the proceeding with costs.

6 The RRT again asks today that the Full Court dismiss the purported appeal and the application for leave to appeal in pursuance of a notice of motion filed on 29 October 2002 and notice of objection to competency filed on 8 August 2002.

7 The decision of Whitlam J was interlocutory and therefore leave is required to bring the appeal. The Court determined that it would regard the applicant (as I have been calling the appellant) as having made an application for leave to appeal. The appropriate test is not in doubt. Firstly, it must be shown that the decision from which leave to appeal is sought is attended with sufficient doubt to warrant reconsideration by the Full Court and secondly, substantial injustice must be shown to result if leave were refused, supposing the decision to be wrong.

8 In my opinion, it is beyond doubt that the trial judge was correct in his approach to the matter and the appeal would be bound to fail. There is therefore no basis for the grant of leave to appeal the decision.

9 The applicant struggled to make us understand, even with an interpreter, why it is that she feels that, despite some considerable investigation of the matter, there may still be files relating to her. In the course of discussion, Ms Watson who appears for the respondent, undertook to inquire of the relevant authorities in effect whether there is any avenue left unexplored and to advise the applicant accordingly.

10 The applicant must pay the respondent's costs.

11 The orders of the Court therefore will be that:

(i) leave to appeal is refused;

(ii) the purported appeal is dismissed;

(iii) the applicant must 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 Madgwick.

Associate:

Dated: 14 November 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N511 of 2002

BETWEEN:	HERMENIA AZARCON APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL RESPONDENT

JUDGES:	MADGWICK, EMMETT AND CONTI JJ
DATE:	5 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(revised from transcript)

EMMETT J:

12 I agree. The reasons of the Administrative Appeals Tribunal ("the AAT") indicate that the AAT examined the application under the Freedom of Information Act 1982 (Cth) and was satisfied that the respondent, the Refugee Review Tribunal, has no documents to produce in answer to the application. The reasons do not suggest any error, much less any error of law and this Court has jurisdiction to entertain an appeal only on a question of law. Whitlam J correctly dismissed the application on the basis that it had no possible prospect of success. The appeal from Whitlam J to this Court has no prospects of success and therefore application for leave to appeal should be refused with costs.

I certify that the preceding numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 14 November 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N511 of 2002

BETWEEN:	HERMENIA AZARCON APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL RESPONDENT

JUDGE:	MADGWICK, EMMETT AND CONTI JJ
DATE:	5 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(revised from transcript)

CONTI J:

13 I agree with Madgwick and Emmett JJ.

I certify that the preceding paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated: 14 November 2002

Applicant appeared in person.
Solicitor for the Respondent:	Ms D Watson, Australian Government Solicitor
Date of Hearing:	5 November 2002
Date of Judgment:	5 November 2002