FEDERAL COURT OF AUSTRALIA

STWB v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1165

STWB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

No S 146 of 2004

FINN J

ADELAIDE

10 SEPTEMBER 2004

THE COURT ORDERS THAT:

1.         The application for leave to file and serve a notice of appeal be refused.

2.         The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

1                     This is an application under O 52 r 15(2) of the Federal Court Rules for leave to file and serve a notice of appeal out of time.  It is being determined, by consent, on the papers:  cf O 52 r 15A.

2                     The application was filed only eleven days after the expiry of the twenty-one day appeal period.  The explanation given for the delay in seeking to appeal is that the applicant had not been provided with a copy of the primary judge’s reasons by his legal adviser.

3                     Ordinarily one would view an application in such circumstances with some sympathy.  The defaults of a legal adviser should not too readily be visited on his or her client where the delay is not a serious one and there is a genuine issue to be litigated:  see Jess v Scott (1986) 12 FCR 187;  WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [7].

4                     Nonetheless, in determining whether there are “special reasons” for O 52 r 15(2) purposes which justify a departure from the ordinary appeal period prescribed in the Rules, it is necessary to have some regard to the applicant’s prospects on the appeal if leave is given.

5                     As Bennett J observed in Hasan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 788 at [27]:

“When the Court forms the view that the applicant does not have an arguable case, the reason given for refusing to extend time can be couched in various ways.  For example, in Jackamarra v Krakouer [1998] HCA 27 at [7], Brennan CJ and McHugh J used the expression whether ‘the Court can be satisfied that the appeal is so devoid of merit that it will be futile to extend time’.  In NAII v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1008 at [8], Whitlam J said:  ‘I am firmly convinced on the materials before me that the appeal would be totally fruitless’.  His Honour held that there was no reason why the discretion under Order 52 rule 15 should be exercised in the applicant’s favour.  In WAGL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 595, French J observed (at [10]) that in circumstances where there did not appear to be any reviewable error on the part of the Tribunal ‘it would be a waste of time granting an extension of time within which to appeal’.  In Rahmatullah v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 132, Finn J looked to whether the question was ‘so unarguable that any appeal is doomed to failure’.  In SZAAK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 702, Gyles J said that he was satisfied that the applicant ‘has not any arguable ground of appeal’ in refusing to extend time under Order 52 rule 15.”

6                     The above descriptions are apt to characterise the present matter which arose out of an unsuccessful application for a protection visa.

THE PRIMARY JUDGE’S DECISION

7                     The basis of the applicant’s visa application was described by the Refugee Review Tribunal in these terms:

“In written submissions the [applicant] claimed that he was a left-handed bowler in the game of cricket and had played for various clubs in India.  He claimed that he had a good career ahead of him but that, because he was a Roman Catholic, Hindu members of his club in Kerala had told him that India belonged to Hindus and as a Christian he should not try to gain prominence in sport.  In 1998 he was badly injured during an assault by members of the RSS during a cricket match in Mangalore in Karnataka state.  The police were told but took no action.  After this other professional clubs did not want him to play for them.  He ‘could have survived’ if he was not prominent in his career as a fast cricket bowler.  He returned to his home town of Chalakkudy and began to play cricket with small clubs there.  In February 1999 RSS party members attacked him and broke his left arm.  He left for Bombay and began playing for small clubs.  In April 1999 he was attacked at his residence.  He realised that the party Shivsena had carried out the attack under the instruction of the RSS.  He went back to Mangalore and joined the Karawali Cricket Club.  Through them he tried to go for training in Australia.  He did not tell them the real purpose was to take refuge.  He could not join the first group of players who left for Australia in May 1999.  He came later to get away from the discriminatory politics of caste and religion.”

8                     The Tribunal rejected the application on two grounds.  It did not accept the applicant’s claims that he suffered the persecution he alleged because of Christian religion.  It did not accept that the government authorities in India would not afford him adequate protection.

9                     That decision was challenged in judicial review proceedings on procedural fairness grounds.  It was claimed that the Tribunal did not give the applicant an adequate opportunity to present his case.  The primary judge, in an ex tempore judgment, considered that claim to be “plainly untenable”.

10                  The undisputed facts were summarised by his Honour in the following terms:

“(a)     The hearing was initially set down for 27 August 2001.  On 26 August 2001 the applicant requested that the hearing be adjourned to enable him to obtain further information.  That request was acceded to and it was then relisted for 30 August 2001 …

(b)       The applicant claimed at the hearing that he was seeking documents to support his claim.  The applicant advised the Tribunal that he could submit material about his claim by 7 September 2001.  The Tribunal advised the applicant that he could have 21 days in which to obtain and submit his supporting documentation;  that is, until Monday, 17 September 2001.

(c)        The applicant did not provide any further material on or before 17 September 2001, nor did he request any opportunity to provide any further documents after that date.

(d)       Under cover of a letter dated 25 September 2001, the applicant submitted a large bundle of documents which the applicant wished the Tribunal to consider.  The Tribunal received those documents and considered them.

(e)        On 25 September 2001 the applicant also requested a further month in which to submit further documents.  The Tribunal made no response to that.

It is clear from the Tribunal’s decision that the decision was signed and dated 9 October 2001.  However, it is also clear that the Tribunal decision was not handed down until 6 November 2001.  Under the Migration Act 1958 (Cth) (‘the Act’), the date of the decision is the date that it is handed down, not the date that it is signed:  see s 430B(4) of the Act.  In my view, it was open to the Tribunal to have varied the decision that it made between 9 October and 6 November.  In the result, then, the date of the decision was six weeks after the date requested by the applicant to provide further information.  The applicant did not provide any further documents to the RRT within that period at all.”

11                  The primary judge concluded that “it is perfectly clear that the applicant was not denied procedural fairness”.  His Honour also observed that, even if there was such a denial, it did not go to the issue of State protection “which by itself is conclusive”.

THE PROJECTED APPEAL

12                  The draft Notice of Appeal does not as such specify a ground of appeal.  It baldly asserts no more than that: 

“2.       The learned Trial Judge erred in law by not finding that the Refugee Review Tribunal had made a jurisdictional error in reaching the conclusion that the Appellant is not entitled to Protection Visa.”

13                  The applicant, who represented himself, was invited to further specify the question of law that he would wish to raise on appeal and to file written submissions.  All that has been elicited by way of response has been a factual narrative of the events he said gave rise to his fear of persecution and a bundle of extracts from newspapers, websites and periodicals containing country information which, seemingly, he wishes the appeal court to consider.

14                  In an earlier affidavit filed in support of this application the applicant made plain that he has in his possession “strong evidences” which he believes the appeal court would “consider … favourably” and order a protection visa.

CONCLUSION

15                  It is clear that the applicant in fact is seeking no more in the appeal he wishes to mount than a merits review of the Tribunal’s decision.  Such review, of course, is impermissible in this Court.  It is equally clear that the primary judge has committed no arguable appellable error.  If leave was granted the appeal would be doomed to failure.  For this reason I will refuse the application for leave to file and serve a notice of appeal and I will order the applicant to pay the respondent’s costs of the application.

Associate:

Dated:              10 September 2004