NAMI v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 107 (7 February 2003)

Last Updated: 4 April 2003

FEDERAL COURT OF AUSTRALIA

NAMI v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 107

NAMI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1125 of 2002

SACKVILLE J

SYDNEY

7 FEBRUARY 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1125 OF 2003

BETWEEN:	NAMI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	7 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The notice of appeal be treated as an application for leave to appeal.

2. The application for leave to appeal be dismissed.

3. The appellant pay the Respondent's costs of the notice of the appeal and the application for leave to appeal.

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 1125 OF 2003

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

JUDGE:	SACKVILLE J
DATE:	7 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant, as I shall describe him, has filed a notice of appeal. The appeal purports to be from the judgment of Magistrate Driver given on 21 October 2002. On that day Magistrate Driver made orders dismissing the appellant's application for judicial review of a decision of the Refugee Review Tribunal given on 23 June 2002. The Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa. The Tribunal found that the application for a protection visa was "fraudulent".

2 The background to the order made by Magistrate Driver is as follows. The application for judicial review was set down for hearing before Magistrate Driver on 13 September 2002. On that date the appellant did not appear. However, as appears from the transcript of the proceedings on that date, he faxed to the court a medical certificate from a doctor. That medical certificate stated that the appellant was unfit for work for a period of three weeks from 10 September 2002.

3 Magistrate Driver adjourned the hearing until 2.15 pm on 21 October 2002. He also made orders granting leave to the appellant to discontinue his application by filing a notice of discontinuance up to and including 27 September 2002. If no such notice of discontinuance was filed, the appellant was directed to file and serve on the Minister on or before 27 September 2002, an amended application setting out at least one available ground of review and also to file and serve particulars of any such ground of review.

4 The orders made on 13 September 2002 further provided that if the appellant failed to comply with the previous orders the Court would dismiss the application without a further hearing pursuant to rule 13.03 of the Federal Magistrates Court Rules 2001 (Cth) ("FMCR"). Rule 13.03 of the FMCR provides, among other things, that if a party fails to comply with an order of the Court, the Court may on the application of another party or of its own motion, make an order to end the proceedings or any other order that it considers appropriate.

5 On 21 October 2002, the matter again came before Magistrate Driver. Once again the appellant did not appear. So far as the material before me goes, no explanation was provided to the Court for that non-appearance.

6 Magistrate Driver, according to the transcript of the proceedings on 21 October 2002, referred to the orders made on 13 September 2002. He then made orders dismissing the proceedings in accordance with rule 13.03 noting in particular the appellant's failure to comply with the earlier directions requiring him to file and serve an amended application.

7 Mr Reilly who appears on behalf of the Minister has pointed out two matters. First, although the appellant has filed a notice of appeal, in truth the decision of the Magistrate is an interlocutory decision in respect of which leave to appeal is required. Secondly, FMCR, rule 16.05(2)(a) provides that the Court may vary or set aside any order after it has been entered if the order was made in the absence of a party. It may therefore still be open to the appellant to apply to the Magistrates Court to re-open the proceedings, dismissing the order that was made on 21 October 2002. Of course, if any such application were to be made it would be a matter for the Magistrates Court to determine.

8 Since the appellant is unrepresented, the appropriate course is to treat the notice of appeal as an application for leave to appeal from the interlocutory decision of the learned Magistrate. The appellant has not, however, put forward any grounds that would suggest that the Magistrate erred in making the orders he did on 21 October 2002. On 13 September 2002 the Magistrate took account of the medical certificate, despite its unsatisfactory terms, by adjourning the proceedings until 21 October 2002. The appellant has not suggested that he was unaware of the proceedings on 21 October 2002. On the contrary, he has confirmed that he was aware that the hearing was to take place. There is nothing to suggest that the Magistrate was in error in concluding that the terms of the order made on 13 September 2002 had not been complied with. Nor is there any reason for thinking that the power relied upon by the Magistrate was not enlivened as at 21 October 2002.

9 I should add that I have examined the reasons given by the Tribunal for its decision. The reasons contain some extremely strong findings adverse to the appellant. In essence, the Tribunal concluded that his claims were largely or wholly invented and that his evidence was not credible. There is nothing on the face of the material that I have seen that suggests that the appellant has any genuine basis for judicial review of that decision. In saying that I take into account, of course, the judgment of the High Court in Plaintiff S157/2002 v Commonwealth [2003] HCA 2. In these circumstances, the appropriate course is that the application for leave to appeal should be dismissed and I propose to make that order.

10 The usual order for costs will be made, that is the appellant will be ordered to pay the costs of the Minister in respect of the notice of appeal and the application for leave to appeal. The orders I make, therefore, are that:

1. The notice of appeal is to be treated as an application for leave to appeal.

2. The application for leave to appeal is dismissed.

3. The appellant is to pay the Respondent's costs of the notice of the appeal and the application for leave to appeal.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated: 24 February 2003

The Applicant was self represented.

Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	7 February 2003
Date of Judgment:	7 February 2003