NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1508

FEDERAL COURT OF AUSTRALIA

NAMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1508

MIGRATION – Appeal from decision of Federal Magistrate dismissing application for review of Refugee Review Tribunal decision – application dismissed by Magistrate for non-compliance with orders – leave to appeal not sought – objection as to competency – whether special leave should be granted to appeal from decision of Federal Magistrate

NAMJ v MIISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 884 OF 2002

TAMBERLIN J
SYDNEY
1 NOVEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 884 OF 2002

BETWEEN:	NAMJ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	1 NOVEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The Notice of Motion filed by the respondent on 21 October 2002 is allowed.

2.        Leave to appeal be refused.

3.        The appeal be dismissed.

4.        The applicant pay the respondent’s costs.

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 884 OF 2002

BETWEEN:	NAMJ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	1 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who arrived to Australia on 9 April 1998.  He lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) on the ground that he is a refugee within the definition in Article 1(A) of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”).  This application was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) on 22 September 2000.  An application for review of that decision was lodged by the applicant with the Refugee Review Tribunal (“the Tribunal”) and on 24 April 2002 the member of the Tribunal, Dr O'Connell, affirmed the decision not to grant a protection visa.  I note that on that occasion, although having been having been invited to attend the hearing before the Tribunal, the applicant decided not to attend the hearing. 

2. The Tribunal examined the claims and evidence before it and made a determination on that basis.  The applicant had been informed prior to the hearing that the Tribunal was unable to reach a decision in his favour on the information provided in the documents which were before the Tribunal.  The Tribunal did not accept that the applicant's claims were Convention related.  When the matter came before me today I provided the applicant with an opportunity to state the basis of his claims and they appeared to be based on a fear of retribution by dissatisfied family members and matters relating to a union organisation.  This does not, in my view, indicate that the applicant could make out his case that he is a refugee, based on the matters which he has put before me today.

3. His application for review having been rejected by the Tribunal, the appellant sought judicial review of that decision. That application was heard by Driver FM on 1 August 2002 and a judgment was delivered on that day dismissing the application. The basis for the dismissal was that the applicant had not complied with directions to file an amended application and lodge submissions. Nor had the applicant in the view of the magistrate demonstrated any case which would be sufficient to warrant the granting of review of the Tribunal’s decision by the Court. Driver FM concluded that the application would serve no purpose other than to extend the period of the applicant's time in Australia and thus declined to hear the application, dismissing it pursuant to rule 13.03(2)(b) of the Federal Magistrates Court Rules.

4. When the matter came on for hearing this morning counsel for the Minister raised an objection based on a Notice of Motion which had been filed on 21 October 2002 to the effect that the Notice of Appeal was incompetent because no leave had been granted to lodge an appeal to the Court pursuant to O 52 r 18 of the Federal Court Rules.  The onus it is said was on the applicant to show that the appeal was competent.  I have given the applicant an opportunity to make an application for leave to appeal and the applicant has indicated that he wished to make such an application.  After hearing the applicant as to the case which he would attempt to make out if leave were granted, I am satisfied that there is no sufficient basis, nor has any doubt been cast on the decision of the magistrate or of the Tribunal, to warrant the granting of leave.

5. I do not think that any useful purpose would be served by the grant of leave in this matter having regard to the way in which the applicant has approached the prosecution of the application to date.  Accordingly, the appropriate order, in my view, is that the appeal should be dismissed as incompetent on the ground that I would not grant leave to appeal from the decision of the magistrate.  Accordingly, the order of the Court is that the appeal be dismissed with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            23 December 2002

Applicant appeared in person.
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	1 November 2002
Date of Judgment:	1 November 2002