NADF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 71 (3 April 2003)

Last Updated: 29 May 2003

FEDERAL COURT OF AUSTRALIA

NADF v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 71

MIGRATION - appeal - notice of motion to set aside the order of the Full Court of the Federal Court dismissing the appellant's appeal for want of prosecution - claim that notification of appeal hearing date was not received - court unable to place reliance upon appellant's claim - appellant unable to describe any viable basis for impugning the reasons for judgment of the primary judge - notice of motion dismissed.

Federal Court Rules, O 52 38(1)(a)

NADF of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1068 referred to

NADF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 950 OF 2002

HILL, GOLDBERG & CONTI JJ

3 APRIL 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 950 OF 2002

BETWEEN:	NADF APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	HILL, GOLDBERG & CONTI JJ
DATE OF ORDER:	3 APRIL 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Notice of Motion is dismissed.

2. The appellant is to 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	N 950 OF 2002

BETWEEN:	NADF APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	HILL, GOLDBERG & CONTI JJ
DATE:	3 APRIL 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 The historical context to the present application is in summary as follows:

(i) The appellant, a national of Bangladesh, arrived in Australia on 12 January 1999.

(ii) His application for a protection visa was refused by a delegate of the Minister on 15 March 1999.

(iii) The delegate's decision was affirmed by the Refugee Review Tribunal ("the Tribunal") on 13 November 2001.

(iv) An application to review the Tribunal's decision brought by the appellant was dismissed by a judge of this Court on 26 August 2002 (NADF of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1068).

(v) The appellant filed a notice of appeal from the whole of the judgment of the primary judge on 12 September 2002.

(vi) The appellant's appeal to the members of this Full Court was dismissed on 5 March 2003 pursuant to O 52 r 38(1)(a) of the Federal Court Rules, the appellant not having appeared at court on that scheduled hearing date.

2 On 13 March 2003, the appellant filed a notice of motion to set aside the orders of 5 March 2003, and to fix a new hearing date for the appeal.

3 In support of the motion, the appellant stated by affidavit sworn on 17 March 2003 that he did not receive "on time" the court's letter of 27 February 2003 of notification containing the date fixed for hearing of his appeal on 5 March 2003, and consequently that he did not know of the hearing of his appeal on that day. Thus he claimed that his absence was not intentional.

4 The notice of appeal from the judgment of the primary judge contained the following purported ground of appeal alone:

"I am not satisfied with the judgment. Had established my arguable case before the federal magistrate(?) the grounds of my appeal shortly. I am making this appeal under the Judiciary Act 1903 s 39B."

The notice of appeal disclosed the appellant's address as 8/146-152 Pitt Street, Redfern, NSW 2016.

5 By letter sent by the Registry of this Court dated 14 October 2002 addressed to the appellant at 8/146-152 Pitt Street, Redfern, the appellant was notified that his appeal was listed for call-over on 30 October 2002. That letter stated, inter alia, as follows:

"This call over is one of a series of call overs being held across Australia for national Full Court sittings which will be conducted during the period 10 February - 7 March 2003. However, subject to the list of business, it is expected that the Sydney sittings will take place from 10 February - 7 March 2003."

6 At the call-over of the subject appeal proceeding before Sackville J on the notified day, the appellant appeared in person. He was informed by his Honour that "[t]his matter will be set down for hearing, the usual order for written submissions ... you will be notified of the date for hearing", and further that "[t]he matter will be listed as soon as possible", irrespective of the appellant's request for "a little bit of extended time ... to find an appropriate barrister". His Honour observed that the appellant had represented himself before the Tribunal.

7 The appeal was originally listed for hearing before a Full Court comprising Moore, Tamberlin and Hely JJ on 19 February 2003 at 10.15 am, and there was no appearance by the appellant before the Full Court on that occasion. The hearing was vacated by their Honours, doubtless because the Registry's notification of the hearing on that day was apparently sent to 4/16 McCourt Street, Lakemba, for reasons of which we are unaware. The court file contains no indication of the return of the unclaimed envelope containing that notification of hearing. It was not suggested by the appellant that he made enquiries of the Registry as to the fixing of the date for the hearing of the appeal, in the light of the remarks made by Sackville J at the earlier Full Court call-over.

8 Notification of the new hearing date of 5 March 2003 before the present Full Court, by letter dated 24 February 2003, was addressed wrongly by the Registry to the appellant at 7/146-152 Pitt Street, Redfern NSW 2016. That letter, which Australia Post had sought to deliver forthwith by hand to the appellant at that incorrect address, was returned promptly by Australia Post to the Registry with the notification "Not at this address".

9 A letter dated 27 February 2003, correctly addressed this time to the appellant at 8/146-152 Pitt Street, Redfern, was hand delivered by a court officer to the letterbox at 8/146-152 Pitt Street, Redfern. In this letter the appellant was notified, presumably by the same procedure, of the new hearing date of 5 March 2003 before the present Full Court. This was the letter of notification which the appellant asserted to the Court had not been received by him "on time" (see again [3] above), though precisely when he did receive or collect that letter has not been stated.

10 At the hearing of the present application to vacate the orders made on 5 March 2003, the appellant was provided with the assistance of a qualified interpreter, as was the case in the hearing at first instance before the primary judge.

11 The appellant informed the Court on 3 April 2003 that, notwithstanding that his affidavit of 17 March 2003 in support of the present motion disclosed his address as 8/146-152 Pitt Street, Redfern, he had in fact moved his place of residence to 19B Woodcroft Drive, Woodcroft in the State of New South Wales "... at the beginning of March, early March", though he also said that "[e]ven though I moved I was always going back to my old place so I still have contact with the other place".

12 When asked by a member of the Court whether he realised that the Court would not know that he had changed his address, he responded as follows:

"I understand the Court would not understand that I would be moving but I didn't understand myself that I should inform the Court that I possibly be moving."

13 The appellant denied to the Court that he thought it would be to his advantage not to inform the Court Registry that he would "possibly be moving". When asked further why he disclosed as his address, 8/146-152 Pitt Street, Redfern, in his affidavit in support of the present notice of motion, instead of his new address, the appellant said (confusingly) "[i]t did not really come to my mind that I moved but I did not put that new address in that, it has come to my mind". Moreover after informing the Court that he collected his mail from the Redfern address since ceasing to live there, "... maybe once a week or it cannot be exactly regularly", and in effect acknowledging, in those circumstances, that he would have thereupon ascertained the hearing date of his pending appeal, the appellant responded unconvincingly, "yes, I realise that. I do not open it regularly...".

14 The Court extended to the appellant an opportunity to explain what was the basis of his foreshadowed ground or grounds of appeal the subject of his intended appeal. The appellant thereupon looked at the reasons for judgment of the primary judge, as set out in the appeal book, and said that the documents placed before the primary judge disclosed "a true picture of Bangladesh and the torture that I faced in Bangladesh", and that those documents, and one in particular which he had obtained for the Tribunal from the internet, and which he believed the primary judge may not have looked at, would establish his case for refugee status.

15 Notwithstanding the appellant's letter to the primary judge, written on the same day as the hearing of the appellant's application for review conducted before the primary judge, and which appeared to the primary judge to allege bias and a denial of natural justice (as recorded in par [30] of the primary judge's reasons for judgment), the appellant thereupon purported to retract that allegation, saying "I wouldn't say it is biased but would consider to say that I did not understand. They may not have read my file". Yet the appellant acknowledged to the Court that it was in response to his claim of bias and denial of natural justice on the part of the Tribunal that the primary judge read the transcript of the hearing of the proceeding before the Tribunal and listened to the tape recording thereof (as the primary judge indicated in his reasons for judgment).

16 The conclusion of the Court is that it is unable to place any reliance upon the appellant's claim that he did not become aware of the hearing date having been fixed for his Full Court appeal for 5 March 2003 until after that day. Moreover, and in any event, it is apparent to the Court that the appellant is unable to describe any viable basis for impugning the reasons for judgment of the primary judge.

17 The notice of motion filed on 13 March 2003 to set aside the order for dismissal of the appellant's appeal made on 5 March 2003 should be dismissed, the same not having any merit. The appellant is ordered to pay the respondent's costs of the proceeding the subject of this notice of motion.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 14 April 2003

Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the Respondent:	S Burnett
Date of Hearing:	3 April 2003
Date of Judgment:	3 April 2003