Federal Court Rejects Visa Appeal Set-Apart Application

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v Minister [NAME] [2005] FCAFC 241

[NAME] – application to set aside orders of a [ADDRESS] entered on an appeal where the appellant did not appear Federal Court Rules O 52 r 38A [APPELLANT] v MINISTER [NAME] 808 of 2004 [NAME] AND [APPELLANT] JJ 24 NOVEMBER 2005 [APPELLANT]

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 808 of 2004

BETWEEN: [APPELLANT]

APPLICANT

AND: [APPELLANT] [NAME]

RESPONDENT

[APPELLANT] OF ORDER: 3 NOVEMBER 2005

[APPELLANT]

THE COURT ORDERS THAT: 1. The application to set aside the orders made by the [ADDRESS] on 18 November 2004 be dismissed. 2. The applicant pay the respondent's costs of the application.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 808 of 2004

[APPELLANT]

APPLICANT

AND: [APPELLANT] [NAME]

RESPONDENT

JUDGES: [NAME] AND [NAME]: 24 NOVEMBER 2005

PLACE: [APPELLANT] FOR JUDGMENT

THE COURT 1 The issue on the application presently before the Court is whether orders made by a [ADDRESS] on 18 November 2004 ('the first [ADDRESS]') should be set aside. 2 Those orders were duly entered on 25 November 2004 and were as follows: '1. The appeal be dismissed.

2. The appellant pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs.' 3 We heard and determined the application to set aside those orders on 3 November 2005. The orders of the Court were: '1. The application to set aside the orders made by the [ADDRESS] on 18 November 2004 be dismissed.

2. The applicant pay the respondent's costs of the application.' 4 The parties were advised at the conclusion of the hearing that the Court would publish its reasons for judgment in due course. These are the Court's reasons for its judgment of 3 November 2005.

Background 5 The applicant was born in [DATE]. He is fluent in English, Urdu and Malay. He was married in Malaysia on 18 March 1998. On 11 December 2002 the applicant arrived in Australia from Malaysia travelling on a Pakistani passport issued to him in Kuala Lumpur on 27 July 1999. 6 On or about 8 January 2003 the applicant applied for a protection (class XA) visa. On 5 February 2003 that application was refused by the Minister's delegate. 7 By an application for review lodged with the Refugee Review Tribunal ('the Tribunal') on 5 March 2003, the applicant sought a review of the delegate's decision. By letter dated 15 September 2003 the applicant was invited to attend a hearing of the Tribunal on 23 October 2003. On 22 October 2003 [NAME], [APPELLANT] [NAME] of [NAME], applied for a postponement of the Tribunal hearing on the basis of a medical certificate which the applicant had obtained and submitted to the Tribunal. 8 The Tribunal postponed its proposed hearing from 23 October 2003 to 28 October 2003. 9 A hearing, attended by the applicant, proceeded before the Tribunal on 28 October 2003. At that hearing the applicant produced documents reproduced on six pages which were said to contain three charge sheets referable to the applicant expressed partly in Urdu and partly in English ('the first round documents'). The six pages were without any apparent authentication. 10 On the day following the hearing it would appear that [NAME] sent three separate facsimiles to the Tribunal (together, 'the second round documents'). The first two facsimiles were incomplete. The first was a covering letter which was said to attach six pages being a 'translation of Police Reports which were handed to The Member [of the Tribunal] on the time of the hearing'. This facsimile appears to have been transmitted at 1.50 pm on 29 October 2003 and to have comprised only one page. A second facsimile appears to have been transmitted by [NAME] at 1.37 pm on the same day. This facsimile was of one page in length and appears to have been a second page of a translation of one of the police charge sheets. A third facsimile comprised five pages, said to be translations of two of the police charge sheets and the first page of the translation of the third charge sheet. 11 After the reasons for decision of the Tribunal member were signed on 6 November 2003, the applicant lodged further documents with the Tribunal on 18 November 2003, ('the third round documents'). What was lodged appears to have been further copies of the six pages originally tabled at the Tribunal hearing, now bearing stamps of an '[NAME]' in Karachi and the date stamp for 5 November 2003. One of the stamps bears the word 'Attested' to which a signature has been subscribed and another stamp bears the words 'Attested True Photo Copy'. No indication was provided by the '[NAME]' as to the identity or source of the documents of which the copies were said to be true photocopies. Other documents within the bundle apparently produced to the Tribunal on 18 November 2003 were further copies of the translations which had been faxed in bits and pieces to the Tribunal on 29 October 2003. The translations again bore stamps of the same '[NAME]', the word 'Attested' with a signature and a date stamp for 27 October 2003. 12 The Tribunal member decided not to recall his decision and to proceed with the handing down of it as planned on 3 December 2003. He recorded his reasons for this decision as follows: 'All these documents (now altered by stamps that were not on previously-presented copies of the same) have already been presented at [NAME] and have been considered. The alterations to the documents do not give them any more weight; nor do the translations, for the documents were explained to [NAME] at [NAME] hearing.' 13 It is apparent that the Tribunal was referring to the third round documents and also to the second round documents. 14 In accordance with reasons dated 6 November 2003 and handed down on 3 December 2003, the Tribunal affirmed the decision not to grant a protection visa to the applicant. 15 The reasons of the Tribunal included the following: 'The Applicant tabled a photocopy of a FAX, purporting featuring the text of a police charge sheet. The document had the appearance of being a handwritten exercise set within a printed or desktop published pro-forma. The Applicant said it was a genuine charge sheet falsely implicating him in attempted murder and other crimes. The Tribunal put it to him that the document bore no signs of authenticity. The Applicant then said that elsewhere he had a document stamped by the High Court in Pakistan, being an English translation of this document, saying that it was a true translation of a genuine charge sheet. The Tribunal considered this, even though the Applicant failed to produce the translation. The Tribunal considered that the body authenticating the translation would not be competent to assess the genuineness of the original. The Tribunal also considered it implausible for the highest court in Pakistan to be using its time vetting the quality of translations.' 16 Under the heading 'Findings and Reasons' the Tribunal said: 'The Tribunal accepts that the Applicant is a national of Pakistan. The Tribunal dismisses as fraud the so-called police report or charge sheet submitted by the Applicant at the hearing. Its provenance is highly dubious and its appearance is amateur and haphazard, lacking in reliable evidence of authentication. Were the Tribunal wrong about the police charges, and it is highly confident that it is not, then it would still have to take into account the [NAME] claim that actions against his comrades, who in his account must have included him, were dropped after the union [a union of employees established for workers at the [NAME] in Karachi formed after the applicant left the employ of that hotel] was recognised by the courts. Thus there are strong grounds based in the [NAME] own assertions for finding that any mischief launched against him in 1991 by the police and the owners of the [NAME] has long-since been abandoned. … The Applicant is an unreliable witness in the present matter. The Tribunal is not satisfied that the Applicant faces a real chance of Convention-related persecution in Pakistan. He is not a refugee.'

Procedural history 17 By an application filed 6 January 2004 the applicant sought the issue of constitutional writs in respect of the decision of the Tribunal. The application was supported by an affidavit affirmed by the applicant on 6 January 2004 which included the following: '5. [NAME] failed to take in to consideration the merits of the case. 6. [NAME] failed to act on proper principles of fairness and natural justice. 7. [NAME] did not act in good faith to make this decision. The Grounds of Appeal (a) The decision made by [NAME] was an improper exercise of the powers conferred by the [NAME] 1958 and [NAME] regulations 1994 as amended. (b) The decision involved an error of law being an incorrect interpretation of the applicable laws and incorrect application of the law to the facts.' 18 The [NAME] application was heard and determined by the primary judge on 28 April 2004. The applicant appeared in person at the hearing before his Honour. The applicant relied upon both his oral submissions at the hearing and also written submissions to the Court. The primary judge ordered that the application be dismissed and that the applicant pay the respondent's costs. 19 In the reasons for judgment his Honour said: '19. In his written submissions to this Court the applicant concentrated on two matters; the first concerned the authenticity of the police charge sheets and the second related to his alleged involvement with the members of MQM.

20. I shall deal with the second matter first. The submissions concerning the [NAME] involvement with MQM do not go beyond inviting the Court to reach a different conclusion on the evidence that was before the Tribunal. It may be that a different Tribunal may have come to a different conclusion in relation to those matters. That is not a question upon which the Court should embark. The only question is whether or not any error in the way the Tribunal dealt with the allegations of involvement with MQM, indicate that there was some jurisdictional error on the part of the Tribunal. I do not consider that the submissions go anywhere near establishing a jurisdictional error in relation to the way in which the Tribunal dealt with the allegations of a fear of persecution arising out of involvement with MQM.

21. That is sufficient to dispose of the application. However, I shall say something briefly about the submissions concerning the police charge sheets. 22. … Those documents were referred to by the applicant at the hearing before the Tribunal on 28 October 2003. The [NAME] complaint is that the Tribunal had no regard to the documents in the course of the hearing, saying that on their face there was no guarantee that they were authentic. The applicant apparently said in the course of the hearing that he had a translation of the documents stamped by the High Court in Pakistan saying that they were true translations of genuine charge sheets. … 31. The way in which the Tribunal dealt with the documents causes some disquiet. However, it does appear that notwithstanding that the decision was made without reference to the certified translations, the Tribunal did, after the event, have regard to them and concluded that its first view ought not to be changed. However, as I have already said, while there may be some disquiet arising from the way in which the Tribunal dealt with the documents, the ultimate decision of the Tribunal was not based upon the authenticity or otherwise of the documents.

32. The Tribunal concluded that even if there were charges made, as might be inferred from the police reports, the Tribunal did not consider that it was plausible that such charges against the applicant would still be current if he were to return to Pakistan after an absence of more than 10 years. In the circumstances, I am not persuaded that there was any error on the part of the Tribunal such as would constitute jurisdictional error…It follows in my view that the application should be dismissed.' 20 The grounds in the notice of appeal filed 18 May 2004 which were before the first [ADDRESS] were: 'That the learned single bench failed to appreciate the judicial error in the instant case, moreover, the learned single bench also failed to appreciate the documents so placed on the file page 60 of the court book, regarding the fact that [NAME] decided the fate of the documents on 06/11/03 whereas the documents were received by them on 03/12/2003 i.e. a legal error on the part of [NAME] this means that the decision was made prior to receiving the documents. The document were received by them on 18/11/2003 and the decision was made on 06/11/2003.' 21 As has been noted above, the Tribunal received the third round documents two weeks before the Tribunal handed down its decision and had regard to them in the manner indicated above. 22 When the appeal came before the first [ADDRESS] on 18 November 2004, the applicant failed to appear. He did, however, fax a medical certificate to the Court indicating that he was not fit for work. 23 The applicant was contacted by a Deputy Registrar of the Court who reported that the applicant 'said he will see how he feels later on today and if necessary speak to the person who helped him with his appeal papers to see if he could attend the court on his behalf.' 24 At the hearing of the appeal on 18 November 2004 Ms [COUNSEL], who appeared for the Minister, sought an order under O 52 r 38A of the Federal Court Rules 'that the appeal be dismissed.' 25 The presiding judge responded: 'It should be added that the members of the bench have looked at the judgment appealed from, the decision of the Refugee Review Tribunal and the written submissions that were sent to the Court by the appellant. In the opinion of all of us there appears to be no substance in the appeal.

Accordingly, the order of the Court is that the appeal be dismissed with costs.' 26 Approximately 20 minutes after the appeal had been dismissed by the first [ADDRESS], a friend of the applicant, Mr [APPELLANT], arrived. His arrival was drawn to the attention of the Court which elected not to reconvene because the appeal had already been dismissed. Mr [APPELLANT] was asked to inform the applicant of what had transpired. 27 The orders of the first [ADDRESS] were entered on 25 November 2004, no action having been taken by the applicant in the meantime. 28 The applicant filed a notice of motion on 2 December 2004 seeking to set aside the orders of the first [ADDRESS]. An affidavit in support was also filed on 2 December 2004. The notice of motion and affidavit would appear to have been accompanied by a document in which the applicant said: '… [NAME] has gone beyond the jurisdiction which is vested with [NAME]. That the applicant has also challenged the validity of the jurisdictional error, [NAME] has committed while dealing the above matter. That the applicant has raised lot of legal issues which have been laid down by the applicant in the written submission …' The matter came before [NAME] on 16 March 2005. Doubt having arisen as to the power of a single judge to hear and determine the application his Honour ordered on 3 June 2005 that '[t]he application to set aside the orders made on 18 November 2004 by the [ADDRESS] comprised of [NAME] J, Sackville J and Finn J be stood over to a date to be fixed before a [ADDRESS].' 29 The parties agreed that, in the event that the orders made by the first [ADDRESS] on 18 November 2004 and entered on 25 November 2004 are set aside, the Court as presently constituted should immediately proceed to hear and determine the appeal. For this reason the Court heard the parties in full both on the application for an order setting aside the orders made by the first [ADDRESS] and on the merits of the proposed appeal should those orders be set aside. 30 Dr [COUNSEL] [NAME] who appeared with Mr [COUNSEL] of counsel for the applicant pro bono, indicated that, if the application to set aside the first [ADDRESS] judgment were to succeed, the applicant would seek to file an amended notice of appeal and an amended application under s 39B of the Judiciary Act 1903 (Cth)to take the place of the application filed 6 January 2004 upon which the primary judge reached his decision. 31 Were the applicant to be given a 'second' chance or, arguably, a 'third' chance as proposed, the grounds of alleged jurisdictional error on the part of the Tribunal upon which the applicant would wish to rely would be as follows: '(a) the decision was affected by apprehended bias with the consequence that there was a breach of procedural fairness; (b) the appellant was denied procedural fairness because there was no probative evidence or other material to support the Tribunal's finding of fact that actions against the appellant's [NAME] were dropped after the union was recognised by the court in Pakistan and that any charges against him had long since been abandoned; and (c) the Tribunal failed to give real and genuine consideration to the documentary materials provided to it under cover of a letter dated 18 November 2003.' 32 Dr [APPELLANT] indicated that the [NAME] principal argument now was that the Tribunal brought to bear or gave the appearance of bringing to bear a closed mind on the authenticity of the documents produced by the applicant at the Tribunal hearing.

Consideration

Power Exercised by the [ADDRESS] 33 Although the orders made by the first [ADDRESS] do not identify the rule pursuant to which the orders were made, we accept the [NAME] submission that the first [ADDRESS] proceeded, as counsel for the respondent invited it to do, under O 52 r 38A. That rule relevantly provides: '(1) If a party is absent when an appeal is called on for hearing, the Court may: … (d) proceed with the hearing, either generally or in relation to any claim for relief in the appeal. … (2) If the court proceeds with the hearing under paragraph (1)(d), the Court may (a) set aside or vary any order made after so proceeding; and (b) give directions for the further conduct of the appeal.' 34 We therefore proceed on the basis that this [ADDRESS] has power to set aside the orders made by the first [ADDRESS] but that this power is to be exercised on the basis that the first [ADDRESS] proceeded to hear the [NAME] appeal. In this regard we note that the first [ADDRESS] referred to the decision of the primary judge, the notice of appeal and the written submissions of the parties (see [24] above).

Explanation for Failure to Appeal 35 The first [ADDRESS] noted that the medical certificate provided to the Court by the applicant 'required further elaboration if it was to be accepted as indicating Mr [APPELLANT] was not fit to participate and would arrange for someone to participate.' The reasons for judgment of [NAME] drew attention to the fact that '[t]he explanation for the absence of the appellant on 18 November 2004 does not take the matter beyond that recounted by the presiding judge on 18 November 2004.' Nonetheless no material additional to that which was before the first [ADDRESS] in explanation for the [NAME] failure to appear on 18 December 2004 has been placed before this [ADDRESS].

[NAME] of Appeal 36 As identified above, the case that the applicant wishes to advance if the orders made by the [ADDRESS] on 18 November 2004 are set aside is one of apprehended bias on the part of the Tribunal. Although the affidavit in support of the application before the primary judge said '[NAME] failed to act on proper principles of fairness and natural justice' it is conceded on behalf of the applicant that no claim of actual or apprehended bias was made at the hearing before his Honour. The transcript of proceedings before the Tribunal was not placed before the primary Judge or, indeed, before the first [ADDRESS]. 37 An allegation of apprehended bias was not raised in the notice of appeal nor in the written submissions to the first [ADDRESS]. 38 It is thus apparent that the present application is not intended to place the applicant in the position that he would have been in had he attended the hearing before the first [ADDRESS]. It is intended to facilitate his advancing a case that there is no reason to think he would have advanced had he attended that hearing. Arguably he seeks to be placed in a better position than he would have been in had he attended the hearing before the first [ADDRESS].

Apprehended Bias 39 The allegation of apprehended bias is based upon the Tribunal's treatment of the 'three rounds' of documents sent to the Tribunal and the [NAME] description of those documents. What the applicant now wishes to do is, in effect, to bring a fresh application under s 39B of the Judiciary Act 1903 (Cth) almost two years out of time (see s 477(1) of the [NAME] 1958 (Cth)). 40 To enable the proposed new grounds to have any prospects of success it would be necessary for the applicant to secure the admission into evidence on the hearing of the appeal of a transcript of the proceedings before the Tribunal on 28 October 2003. For the purposes of the hearing of the current application to set aside the orders of the first [ADDRESS] the transcript of the Tribunal hearing has been admitted into evidence. The passage relied upon to found the allegation of apprehended bias was the Tribunal response to what was said by the applicant at page 17 of the transcript: 'Applicant Yes, this is the fax I receive yesterday. The original is with my brother. Attested by the Sindh High Court. Translated by Sindh High Court. So the FIR record is --- Member No, just a moment, there's no attestation as to the genuiness of this. Applicant This is the one he faxed me before the translation, Member But see, that's fine, you know what. I'll say this. Here you're in trouble and I'll tell you why you're in trouble. Applicant Okay. Member It's fine for a High Court to, it is a fine thing for a Notary Public or a solicitor or a proper person to certify the genuiness of a translation. All that that does is certify the correctness of the job of the translator, it is no guarantee as to the authenticity or authority of the document that was translated. Ok, now if ---' 41 The applicant proceeded to indicate to the Tribunal that '… if you want to check authenticity, you can check either from the Police Station with the reference number or you check from the Sindh High court.' 42 As we read that statement by the applicant, it is open to the interpretation that the applicant was saying that the original of the copy document (a faxed copy) that he gave the Tribunal had been attested. Clearly, if the original had borne an attestation, a copy of it should also have borne a copy of that attestation.

Accordingly, the comment to that effect by the Tribunal was understandable. It also explains why the Tribunal, having commented on the absence of the attestation, was suspicious of a subsequent copy of the document which bore the attestation. 43 It may also be noted that none of the documents later produced by the applicant to the Tribunal were 'attested by the Sindh High Court', nor was there any indication that any of the translations were effected by the Sindh High Court. 44 Even if that was not the correct meaning of the [NAME] statement to the Tribunal and the applicant meant that there was another original (with the Sindh High Court) to which the attestation of a true copy was attached, it is an interpretation that was available. Great difficulty attends the argument that adoption of it by the Tribunal demonstrates apprehended bias. 45 We are not satisfied that the ground of appeal set out in the proposed amended notice of appeal has a reasonable prospect of success.

CONCLUSION 46 We fully recognise the significance to the applicant of his claim to be entitled to a protection visa. We are also conscious of the many difficulties faced by [NAME] and of the consequent need for courts to avoid unnecessarily strict insistence on compliance by them with rules of practice and procedure. Nonetheless, for the reasons set out above, on 3 November 2005 we concluded that it had not been demonstrated that the interests of justice called for the orders of the first [ADDRESS] to be set aside. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME], [COUNSEL] and [COUNSEL].

Associate: Dated: 24 November 2005 Counsel for the Applicant: [redacted]

[NAME]: [RESPONDENT]

[NAME]: Australian Government Solicitor

Date of Hearing: 3 November 2005

Date of Judgment: 3 November 2005