BZAA of 2004 v Refugee Review Tribunal

[2004] FCA 1508

FEDERAL COURT OF AUSTRALIA

BZAA of 2004 v Refugee Review Tribunal [2004] FCA 1508

BZAA OF 2004 v REFUGEE REVIEW TRIBUNAL
QUD 193 OF 2004

KIEFEL J
BRISBANE
18 NOVEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 193 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

BZAA OF 2004
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

KIEFEL J

DATE OF ORDER:

18 NOVEMBER 2004

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The application for extension of time to file and serve a notice of appeal be dismissed.

2.        The applicant pay the respondents’ costs of and incidental to 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
QUEENSLAND DISTRICT REGISTRY	QUD 193 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

BZAA OF 2004
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

KIEFEL J

DATE:

18 NOVEMBER 2004

PLACE:

BRISBANE

REASONS FOR JUDGMENT

1. The applicant seeks an extension of time within which to appeal from the decision of Jarrett FM which was given orally at the conclusion of a hearing on 16 August 2004.  The applicant does not appear in support of his application today although I am told that he was fully aware that the matter was before the court and that he had indicated earlier this week his intention to appear. 

2. The need for an extension of time arises because the time for the filing of an appeal was 6 September 2004 and the applicant’s solicitors filed a notice of appeal on 21 September.  They say that the delay was occasioned because written reasons were not available within the time for filing a notice of appeal.  I do not understand the applicant’s solicitors to have been present when judgment was given.  It therefore follows that they would have laboured under some difficulty in preparing a notice of appeal.  I would therefore be inclined to hold that special reasons were shown for an extension of time and would grant an extension if I were satisfied the applicant had some prospects of success on appeal.  That is where the difficulty for the applicant lies.

3. The application for review before the Federal Magistrate was wholly unparticularised despite directions that submissions be filed to explain the applicant’s position.  The application consisted merely of a reiteration of the applicant’s story before the Refugee Review Tribunal (‘the Tribunal’).  The Federal Magistrate therefore looked at the findings of fact made by the Tribunal. 

4. In summary, the applicant, an Indian national, had been engaged in student politics and was subjected to violence on two occasions from opposing political parties.  On one occasion two of his friends were killed.  He reported this to the Police and was to be a witness in the prosecution of three men charged with the killings.  Those three men attempted to harm the applicant and his family, he said, although no harm had in fact befallen his family since his departure from India. His fear of harm was from the three men.  There was no suggestion it was from opposing political parties.  The Federal Magistrate noted that the Tribunal determined the matter against the applicant for two reasons.  The applicant’s fear of harm was not shown to be for a Convention reason.  Further and perhaps alternatively, in the event that the Tribunal was wrong as to that, he was not at risk if he returned to a different location in India. 

5. The Federal Magistrate could discern no error in the Tribunal’s approach and for my part, I cannot either. 

6. The applicant’s amended notice of appeal raises matters not raised before the Federal Magistrate and it is unlikely that he would be permitted to agitate them now.  They do not in any event identify an error in his Honour’s or the Tribunal’s reasons.  He says that he was disadvantaged by lack of legal representation but this is not a ground of appeal.  There is an allegation generally that the Federal Magistrate should have come to a different view, which again does not constitute a basis for appeal.  The fourth and sixth grounds involve a different view of the facts than those found by the Tribunal as does the fifth ground.  This is not permissible on review.  The finding that the applicant’s fear of harm was not for a Convention reason disposes of the matter without resort to the relocation principle. 

7. As I have said, I can discern no error in the approach taken by the Federal Magistrate and it would follow that the applicant has not prospects of success on appeal.  For these reasons, the application for extension of time is dismissed with costs.  There will be orders accordingly.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:            18 November 2004

For the Applicant:	No Appearance
Solicitor for the First and Second Respondents:	Clayton Utz
Date of Hearing:	18 November 2004
Date of Judgment:	18 November 2004