Applicant S1051 of 2003 v Refugee Review Tribunal

[2005] FCA 1700

FEDERAL COURT OF AUSTRALIA

Applicant S1051 of 2003 v Refugee Review Tribunal [2005] FCA 1700

APPLICANT S1051 OF 2003 v REFUGEE REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 2039 of 2005

MADGWICK J
8 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2039 OF 2005

BETWEEN:

APPLICANT S1051 of 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

8 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application is refused with costs assessed in the sum of $700.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2039 OF 2005

BETWEEN:

APPLICANT S1051 of 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE:	8 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MADGWICK J:

1. This is an application for leave to appeal from a judgment of Justice Branson given on 20 October 2005.  The application asserts that leave to appeal is required by virtue of the time for filing an appeal having expired, but that is not why leave is required at all.  The application for leave to appeal was duly lodged within the period limited for the lodgement of applications in respect of interlocutory judgments – which is what her Honour’s judgment was – and it is because the judgment is interlocutory that leave to appeal is required.

2. Her Honour was hearing an application remitted to this Court from the High Court of Australia.  The original application was for an order nisi requiring the respondents to show cause why constitutional writs should not be issued in respect of an adverse decision of the Refugee Review Tribunal given on 5 June 2001.  Her Honour was considering the matter on the papers.

3. The attack made on the Tribunal’s decision was that the applicant was denied natural justice, that the decision of the Tribunal was mistaken on the merits and that the Tribunal erred in allegedly finding that women in India or, alternatively, Sikh women in India, did not constitute a social group for the purpose of the relevant Convention which effectively defines refugee status for the purpose of Australian law.

4. Her Honour found that there was no basis for the alleged denials of natural justice, that the Tribunal had not failed to consider then current information as had also been alleged, that the challenge to the merits was of no legal significance to the present application and that there never had been such a finding about a social group as was complained of.  Her Honour concluded that the applicant had not made out an arguable case that the Tribunal had committed jurisdictional error and dismissed the application for an order nisi.

5. The applicant’s documents before do not assert any basis upon which it is alleged that her Honour erred in any respect.

6. The applicant appeared unrepresented and sought an adjournment of this proceeding so that she could obtain a barrister. She was unrepresented before Justice Branson and, had she wished to be legally represented, she had over four years since the Tribunal decision to put some money together for that purpose.  She had been unable to do so it would seem, if she had wished to be represented.  She now seeks further time to get some money together to have a lawyer represent her.  I declined to adjourn the proceedings for that purpose. If she were sincere in seeking to be legally represented nothing was indicated as to how much time would be necessary to get the money together, however the record to date does not suggest that it would be acceptably short. 

7. The applicant was then unable to suggest any reason why her Honour’s judgment was mistaken.  As far as I can tell, if the applicant had had the advantage of being represented by the likes of Justice McHugh before he went to the Bench no error would have been able to be suggested either.

8. Her Honour’s decision is unattended by sufficient doubt to warrant leave to appeal being granted and I refuse the application with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            24 November 2005

Solicitor for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 November 2005
Date of Judgment:	8 November 2005