A305 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 414

FEDERAL COURT OF AUSTRALIA

A305 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 414

A305 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 269 OF 2004

TAMBERLIN J
SYDNEY
29 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N269 OF 2004

BETWEEN:	A305 OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	29 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal is refused.
2. The applicant to pay the respondent’s cost of this application.

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 269 of 2004

BETWEEN:	A305 OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	29 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the applicant filed an affidavit on 19 November 2002 in the High Court, seeking an order nisi for writs of mandamus, prohibition and certiorari.  On 7 February 2003, his Honour Justice Hayne remitted the matter to the Federal Court.  On 25 July 2003, the matter was transferred to the New South Wales Registry of the Federal Court. 

2. The application for the order nisi was heard and refused by her Honour Justice Bennett on 19 February 2004.  On 2 March 2004, the applicant filed a document entitled Notice of Appeal, however, because a judgement refusing to issue an order nisi is an interlocutory judgement, the applicant requires leave to appeal.  That is the question presently before me.

3. The matter is proceeding on the basis that the Notice of Appeal is to be treated as an application for leave.  The only ground raised in the Notice of Appeal is that the Court has “failed in finding out an error of law and denial of natural justice in the decision of the [Refugee Review Tribunal].” 

   BACKGROUND

4. The applicant is a citizen of India who arrived in Australia on 1 May 2002, and applied for a protection visa. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused this application on 21 May 2002.  On 24 June 2002, the applicant applied for a review of that decision by the Refugee Review Tribunal (“the Tribunal”).  On 30 September 2002, the Tribunal handed down its decision affirming the decision of the delegate.

5. The ground on which the applicant claimed to fear persecution was on the basis of religion. His claim as ultimately presented to the Tribunal was that he was an active Christian, and had been arrested on three occasions for this reason.  He also claimed that after his mother had been killed in a car accident, which he said was caused by the fundamentalist Hindu Shiv Sena party, he had been harassed by that party, and feared further harm from the police or Shiv Sena if he returned to India. 

6. The Tribunal made adverse credibility findings against the applicant, particularly in relation to what it considered to have been discrepancies in the case that he presented.  These discrepancies are dealt with in the “Discussion and Findings” section of the Tribunal’s reasons. 

   APPLICATION FOR LEAVE TO APPEAL

7. The question on this application for leave is whether the applicant can show any significant prospects of success on the appeal from the interlocutory judgment of Bennett J.  At the hearing before me this morning, the applicant asserted from the bar table that the reason there appeared to have been discrepancies in the case that he presented to the Tribunal is that his migration agent had not acted in a proper and efficient manner and, indeed, to some extent had bungled his application, with the consequence that he was exposed to the Tribunal’s criticism of his evidence on a false basis. 

   CONCLUSION

8. Unfortunately, on the material before me, I do not think that any proper basis has been made out for finding any error in the decision of Bennett J, or in the decision of the Tribunal.  The Tribunal must deal with the questions before it on the basis of the evidence and other material that is placed before it.  In the present case, there is no indication that there was any significant credible evidence to the effect that the migration agent had misunderstood and wrongly presented the case advanced by the applicant.

9. In these circumstances, I am not persuaded that this is a case where leave ought to be granted.  Accordingly, I refuse the application for leave to appeal from the judgement of Bennett J and I order that the applicant pay the costs of the respondent on this application.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            7 April 2004

The Applicant appeared in person.
Counsel for the Respondent:	G R Kennett
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	29 March 2004
Date of Judgment:	29 March 2004