Applicant M128 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 511

FEDERAL COURT OF AUSTRALIA

Applicant M128 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 511

Décor Corporation v Dart Industries (1991) 33 FCR 397

APPLICANT M128 OF 2003 v MINISTER FOR IMMIGRATION AND INDIGENOUS AND MULTICULTURAL AFFAIRS

V 365 OF 2004

SUNDBERG J
27 APRIL 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 365 OF 2004

BETWEEN:	APPLICANT M128 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SUNDBERG J
DATE OF ORDER:	27 APRIL 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the respondents costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 365 OF 2004

BETWEEN:	APPLICANT M128 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SUNDBERG J
DATE:	27 APRIL 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Application for leave to appeal from the decision of Weinberg J dismissing an application for orders nisi for prohibition and certiorari directed to the Refugee Review Tribunal in respect of its affirmation of the respondent’s decision to refuse the applicant a protection visa.

2. On 26 April 2004 the Court received a letter from the applicant asserting that he was unwell and unable to attend Court. He said a medical certificate would be provided. No such certificate was provided. The applicant did not appear. Nor did anyone attend on his behalf. In the circumstances, pursuant to Order 32 rule 2(1)(d) of the Rules, I decided to hear the application notwithstanding the applicant’s absence.

3. The application is supported by an affidavit deposing that the applicant is an Indian national who applied for a protection visa on 10 December 1999. The application was refused. The decision of the respondent was affirmed by the Refugee Review Tribunal. He says he joined in the Muin proceedings in the High Court, and subsequently made application to the High Court on 21 May 2003. He says he “disagrees” with Weinberg J’s decision.

4. The draft Notice of Appeal filed with the application for leave reads:

   “There was an error of law in the court’s decision constituting a jurisdictional error.

   The court is wrong when it concludes that there was no arguable basis for the application and failure in the application to discharge the necessary evidentiary burden.”

5. In dismissing the application Weinberg J said:

   “The Minister contends that the application should be refused, upon the basis that the tribunal’s decision was essentially grounded upon a rejection by it of the applicant’s credibility. That seems to be borne out by the tribunal’s reasons for decision. In other words, the tribunal simply disbelieved the applicant.

   To the extent that the tribunal referred to country information and to the extent that there were matters in that country information that were adverse to the applicant, the tribunal drew those matters to the attention of the applicant specifically and gave the applicant an opportunity to be heard in relation to them, so the minister contends there was no practical injustice involved in this case whatsoever.

   Before me this morning, the applicant has essentially sought to have me revisit the tribunal’s findings of fact and conclude that the tribunal should not have disbelieved him. Notwithstanding the fact that I made it clear on a number of occasions that this was the very thing that the court could not do, given that it amounted to merits review, in substance this was all that the applicant was able to place before me.
   …
   In all the circumstances, I am not persuaded that there is an arguable case for the grant of an order nisi and the application for an order nisi is refused.”

   Despite the assertion in the draft Notice of Appeal that his Honour said the applicant had failed to “discharge the necessary evidentiary burden”, there is no reference to this in his Honour’s reasons.

6. The grounds in the Notice of Appeal disclose no appealable error. They are totally void of particularity. In the circumstances I will treat the applicant as wishing to repeat on appeal the matters he raised before the Judge.

7. In my view Weinberg J’s decision is not attended by sufficient doubt to warrant it being reconsidered by a Full Court. Indeed, I think it is attended by no doubt at all. The Tribunal’s reasons disclose that, as his Honour said, it rejected the applicant’s case because it did not accept him as a credible witness. The reasons also disclose, again as his Honour said, that the Tribunal drew relevant country information to the applicant’s attention and gave him the opportunity to deal with it.

8. In determining whether to grant leave it is also necessary to consider whether substantial injustice would result if leave were refused, supposing the decision to be wrong. As was said in Décor Corporation v Dart Industries (1991) 33 FCR 397, the “doubt” and “injustice” questions bear upon each other. In view of the absence of any prospect of success on an appeal, if leave were granted, it is artificial to suppose the decision below is wrong. In those circumstances, I am not satisfied that substantial injustice would result from a refusal of leave.

9. Leave to appeal is refused.

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

Associate:

Dated:             27 April 2004

No appearance by applicant
Solicitor for the Respondent:	Mr P Barker, Australian Government Solicitor
Date of Hearing:	27 April 2004
Date of Judgment:	27 April 2004