FEDERAL COURT OF AUSTRALIA

Applicant M98 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 106

APPLICANT M98 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

V 14 of 2004

BLACK CJ, DOWSETT AND BENNETT JJ

MELBOURNE

5 MAY 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.             The appeal be dismissed as incompetent.

2.             The appellant pay the respondent’s costs of the appeal.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

(Revised from transcript)

The Court:

1                     This is a purported appeal from an order of a single judge of the Federal Court made on 22 December 2003.

2                     The appellant, who is a citizen of India, first arrived in Australia on 13 October 1997. On 12 November of that year he applied for a protection visa. This application was refused by a delegate of the respondent in March 1998 and in April of that year, the appellant sought review of this refusal by the Refugee Review Tribunal (‘RRT’). He attended a hearing before the RRT in May 2000, and a few days later, the RRT affirmed the delegate’s decision.

3                     The appellant joined in the Muin and Lie class action (commenced in the High Court in reliance on O 16 r 12 of the High Court Rules), which was heard by the High Court in August 2002 (see Muin v Refugee Review Tribunal (2002) 160 ALR 601). Following the success of that class action, Gaudron J ordered, on 25 November 2000, that leave be granted to each of the individuals identified in the Schedule to the Statement of Claim for the Muin and Lie class action to file an application seeking an order nisi for constitutional writs in relation to the decisions of the RRT concerning that particular individual. The applications were to be filed on or before 1 June 2003. Her Honour further ordered that any application so filed should be remitted instanter upon filing to this Court pursuant to s 44 of the Judiciary Act 1903 (Cth). The appellant, who is one of the individuals identified in the Schedule to the Statement of Claim, filed an application for an order nisi seeking writs of prohibition and certiorari in respect of the RRT’s decision. He did so within the time limited by her Honour’s order.

4                     The proceedings then being before the Federal Court, a directions hearing was held on 17 December 2003. The respondent submitted that the matter should be dismissed because the appellant’s contentions did not put forward evidence to support his claims that the RRT had not afforded him procedural fairness. The learned primary judge informed the respondent that he was not satisfied on the material before him that the grant of an order nisi would be appropriate and he requested the appellant to identify the material in the RRT’s decision to which he claimed he was not given an opportunity to respond. The learned primary judge adjourned the hearing to allow him to do so.

5                     When the hearing was resumed 25 minutes later, the appellant requested more time. The primary judge then adjourned the proceeding until 22 December 2003 to give the appellant a further opportunity to identify the material which he said the RRT did not give him an opportunity to respond to. His Honour informed the appellant that the respondent’s application to have his application for an order nisi dismissed would be heard on 22 December 2003.

6                     The appellant did not appear on 22 December 2003 and the primary judge ordered –  presumably in the exercise of the powers conferred by O 20 r 2(1)(a) of the Federal Court Rules or s 20(5)(c) of the Federal Court Act 1976 (Cth) – that:

·                    the application for orders nisi for the issue of writs of prohibition and certiorari be refused; and

·                    the applicant pay the first respondent’s costs of and incidental to the application.

7                     On 7 January of this year the appellant filed a notice of appeal against these orders. The notice of appeal was filed within the seven-day period allowed from the date of the primary judge’s decision, taking account of the fact that the period between 24 December and 14 January is not counted (see O 3 r 2(4A) of the Federal Court Rules). Since, however, an order refusing an application for an order nisi is interlocutory, leave to appeal from the primary judge’s order was still required; see NAHQ v Minister for Immigration and Multicultural Affairs [2003] FCAFC 297 and s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

8                     The need for leave to appeal was raised at a callover on 10 February 2004 when this matter was set down for hearing before the Full Court and it was then ordered that the appellant file and serve any application for leave to appeal on or before 27 February 2004. It was also ordered that the application for leave to appeal be accompanied by a notice of appeal stating precisely and specifically the grounds of appeal to be relied upon, including the full particulars of those grounds.

9                     The appellant has not filed any application for leave to appeal or any new notice of appeal and has not appeared before the Court today. The respondent, however, has filed a notice of objection to competency in relation to the appeal, relying upon the absence of any grant of leave.

10                  Leave being required and no request for the grant of such leave having been made, the purported appeal must be dismissed as incompetent.

11                  We should, however, note that, even if the application for leave to appeal had been made, it would seem to have had no prospect of success since the appellant was unable or unwilling, when asked to do so, to specify any basis for the grant of the relief he sought.  

12                  The appellant’s application for a protection visa was based on his claim that he faced a real chance of persecution on return to India because he was a young Sikh male from the Punjab suspected of having assisted members of Babbar Khalsa, a separatist organisation seeking to establish a separate state of Khalistan. The RRT considered his claims, as well as a large amount of country information about Sikhs in India, the situation in the Punjab and the Babbar Khalsa. It concluded:

‘I do not find the applicant’s claims of harassment in Punjab convincing. There were a number of anomalies and inconsistencies in his story…

Country information on Babbar Khalsa, cited at page 7 of this decision, indicated that people who played such a minor role as the applicant described, would not now be sought by the police.

Further country information at pages 8 to 15 of this decision indicated that there has been a wholesale resolution of the insurgency situation in Punjab, and that the police no longer commit the sorts of harassment prevalent in the late 1980s and early 1990s…

Having considered all of the evidence, I do not accept that there is a real chance that the applicant will be persecuted for reason of his real or imputed political opinion of support for Babbar Khalsa. I therefore find that the applicant does not have a well-founded fear of persecution for this Convention reason if he were to return to India now or in the foreseeable future.

If the applicant has a subjective fear of return to the Punjab, I consider that he could relocate elsewhere in India. Country information is that Sikhs reside throughout India…’

13                  The grounds on which the appellant sought an order nisi before the primary judge were:

‘In making its decision, the Tribunal failed to observe or breached procedural fairness, in that it relied upon a large body of country information material relating to the situation in the Punjab and also relocation of Sikhs from the Punjab, without giving the Prosecutor the opportunity to respond to those materials.’

14                  At page 6 of the RRT’s decision, however, the RRT noted:

‘The applicant was given country information about Sikhs in India, the situation in the Punjab, and the Babbar Khalsa. The applicant said that young Sikhs were still being killed, and that he feared for his life, the police were still enquiring about him, and he would not be safe there.’

15                  This passage suggests that the RRT did in fact put before the appellant at least the substance of the country information upon which it relied and that the appellant was given an opportunity to respond to it.  Despite being asked to do so, the appellant has not been able or willing to identify any particular country information to which he was not given an opportunity to respond. In such circumstances, even if leave to appeal were granted, there is no basis to suppose that the appellant could have made out any case for the relief sought.

Associate:

Dated:              11 May 2004