Applicant NAIK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 161 (28 February 2003)

Last Updated: 12 March 2003

FEDERAL COURT OF AUSTRALIA

Applicant NAIK of 2002 v Minister for Immigration & Multicultural &

Indigenous Affairs [2003] FCA 161

MIGRATION - application for extension of time in which to appeal from decision of Federal Magistrates Court, dismissing application for review of decision of Refugee Review Tribunal affirming refusal of protection visa - complaints about illogicality of reasoning in grappling with factual matters - held not to constitute error of law or jurisdictional error

Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 84 FCR 411 followed

Minister for Immigration and Multicultural Affairs v Perera (2001) 183 ALR 204 followed

Avesta v Minister for Immigration and Multicultural Affairs [2002] FCAFC 121 followed

W26 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 90 followed

APPLICANT NAIK OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1326 OF 2002

LINDGREN J

28 FEBRUARY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1326 OF 2002

BETWEEN:	APPLICANT NAIK OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	28 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time in which to file a notice of appeal be dismissed.

2. 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 1326 OF 2002

BETWEEN:	APPLICANT NAIK OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	28 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant applies for an extension of time in which to appeal against a decision of the Federal Magistrates Court. The decision was given on 20 November 2002. The applicant was one day late in attending at the Registry of this Court to file his notice of appeal. He filed the application for an extension of time on 12 December 2002 and the time for filing a notice of appeal expired on 11 December 2002.

2 The affidavit evidence of the applicant shows that he was suffering from a severe eye infection as from 5 December 2002. There is a medical certificate dated 9 December 2002 annexed to his affidavit stating that he was suffering from conjunctivitis and was "unfit for any duty" from 9 December to 11 December 2002 inclusive. According to the affidavit, the eye infection prevented the applicant from instructing his solicitor in time for him to prepare the notice of appeal.

3 It is not suggested on behalf of the respondent ("the Minister") that he would suffer any prejudice if the extension of time were granted. I would not shut out the applicant from the opportunity of appealing, merely on account of his being one day late.

4 The fate of the present application turns, not on the applicant's lateness, but on the question whether there is an appealable issue. A Full Court should not be troubled with hearing an appeal if no such issue is shown. Unfortunately for the applicant, in my opinion, it is clear that what he is seeking is a review on the merits and that an appeal by him would have no prospects of success.

5 The applicant is a Fijian Indian and a citizen of Fiji. He arrived in Australia on 17 February 1996 with his wife and daughter. They unsuccessfully applied for permanent residence. On 31 October 2000, the applicant applied for a protection visa. His wife and daughter were included in the application. The application was refused by a delegate ("the Delegate") of the Minister on 20 November 2000. The applicant, his wife and daughter applied to the Refugee Review Tribunal ("the Tribunal") for review of the Delegate's decision. On 29 June 2001, the Tribunal affirmed the Delegate's decision not to grant a protection visa. But on 21 December 2001, this Court set aside that decision and remitted the matter to the Tribunal for reconsideration. The matter was reconsidered by the Tribunal which conducted a hearing on 21 March 2002. On 28 March 2002, the Tribunal again affirmed the Delegate's decision not to grant a protection visa. The Tribunal's decision was handed down on 19 April 2002.

6 On 16 May 2002, the applicant applied to this Court for a review of the Tribunal's decision. The proceeding was transferred to the Federal Magistrates Court. On 20 November 2002, Raphael FM dismissed the application for review. The applicant was represented by a solicitor on the hearing before Raphael FM.

7 The following are the grounds on which the applicant would rely on an appeal, as those grounds appear in his draft notice of appeal:

"2. The Court erred in not explicitly finding that the Refugee Review Tribunal's (`the Tribunal's') decision that the third incident of arrest was not for a convention reason was a jurisdictional error. It further erred in holding that it was not reviewable under s 39B of the Judiciary Act.

3. The Court erred in that, though it held that the Tribunal's decision in relation to the fifth allegation `that the Tribunal wrongly held that police inaction did not occur for a convention reason' was illogical and against the weight of evidence, it was not reviewable under s 39B of the Judiciary Act.

4. The Court erred in holding that the Tribunal's decision that the Applicant's activities were `minimal and insignificant' were reasonably open to the Tribunal on the fact it considered, and in the light of the Tribunal's knowledge of these matter gained through its experience.

We submit that there are two errors here, first being that it was not reasonably open to the Tribunal to hold that the Applicant's activities were `minimal and insignificant'.

Secondly the Statement about Tribunal's knowledge shows a predisposition about the Tribunal that was inconsistent with a neutral mental frame required of the Court. Thus it constitutes an error on the part of the Court."

8 The Tribunal Member gave reasons which, with respect, I would describe as detailed and thorough, for affirming the decision of the Delegate. The Member outlined the claims made in the protection visa application and the evidence which was given at the hearing before the Member. The Member also reviewed country information relating to Fiji.

9 In the "Findings and Reasons" section of the Tribunal's reasons for decisions, the Member made the following findings:

"1. The applicant is a Fijian citizen who legally departed his country on 17 February 1996 and arrived in Australia on the same day, as the holder of a valid Fijian passport, endorsed with an Australian Visitor visa.

2. The applicant's race/ethnicity is Fijian Indian.

3. The applicant was involved in pro democracy activities in 1988 and was arrested on three occasions and detained overnight on one of these. The applicant was not a high profile activist. These incidents did not constitute persecution within section 91R of the Act.

4. The applicant's political activities in the 1980's do not give rise to well founded fear of persecution upon return to Fiji on the basis of political opinion, given the passage of time and substantial changes in the political situation in Fiji.

5. Threats made against the applicant because of his dismissal of a Fijian employee in 1989, due to theft and misconduct, were not made on the basis of the applicant's race, but because of non Convention related criminal activity. Even if the Tribunal is wrong in this finding, the threats did not constitute persecution within section 91R of the Act. The claims also do not give rise to well founded fear of persecution upon return to Fiji, given the passage of time and substantial changes in the political regime in Fiji.

6. The stoning of the applicant's house in 1989 by the perpetrators of the attack did not constitute persecution within section 91R of the Act.

7. The applicant's partnership with Fijians was disbanded in 1995 due to interpersonal conflicts and unreasonable demands made by the Fijian partners. The failed business venture was not based on a Convention ground and did not constitute persecution within section 91R of the Act.

8. The applicant's pro democracy activities in Australia essentially involved assisting with fundraising charitable works. This was a one off activity and was not known by the Fijian Government. These activities do not give rise to well founded fear of persecution upon return to Fiji by virtue of an adverse political opinion, or one imputed to the applicant.

9. The claims on an individual and cumulative basis do not give rise to well founded fear of persecution on the basis of race, or political opinion within the terms of the Convention.

10. There is no well founded fear of persecution upon the applicant's return to Fiji, or in the reasonably foreseeable future on any Convention ground."

10 The Member then proceeded to give reasons for those findings and dealt in some detail with the following topics under these headings:

* 1989 dismissal and attack

* General harassment by Fijians

* The 1995 failed business venture

* Non-renewal of the lease for his former residence

* Pro-democracy activities in 1988

* The landowner's knowledge of the applicant's 1988 pro-democracy activities

* The former landowner's son is now a Government Minister

* Pro-democracy activities in Australia

* Delay in the application for the protection visa

* The applicant's daughter

11 In relation to the first proposed ground of appeal, the finding made by the Tribunal that the incident did not constitute "serious harm" within s 91R of the Migration Act 1958 (Cth) ("the Act") was a finding which was open to the Tribunal on the evidence. The learned Federal Magistrate noted that it was arguable that the Tribunal's finding was illogical, but concluded that this did not give rise to a reviewable error. It is correct that illogicality of reasoning in grappling with factual matters, does not of itself constitute an error of law or jurisdictional error: Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 84 FCR 411 at [20]- [26]; Minister for Immigration and Multicultural Affairs v Perera (2001) 183 ALR 204 at [22]-[26]; Avesta v Minister for Immigration and Multicultural Affairs [2002] FCAFC 121; W26 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 90.

12 The second ground of appeal related to police inaction, but again the complaint that the holding that police inaction did not occur for a Convention reason was illogical and against the weight of the evidence does not amount to a complaint of jurisdictional error. In relation to this matter, the learned Federal Magistrate thought that there was some force in the applicant's argument and that the finding of the Tribunal was illogical and appeared to be against the weight of evidence, but his Honour said that this did not constitute reviewable error or a failure to act with bona fides in relation to the decision. I agree. As well, the finding was, I think, reasonably open to the Tribunal.

13 The third and final ground of appeal is that the learned Federal Magistrate erred in holding that the Tribunal's finding that the applicant's activities were "minimal and insignificant" was reasonably open to it. Again, it was open to the Tribunal to characterise the applicant's activities in that way, whether or not another person would have so characterised them.

14 I accept the Minister's submission that no jurisdictional error has been identified by the applicant and that it would be futile to grant the extension of time sought.

15 In these circumstances, the only appropriate order is to refuse the application for an extension of time, with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated: 11 March 2003

Solicitor for the Applicant	Mr T Silva of Silva Solicitors
Solicitor for the Respondent:	Mr I Muthalib of Blake Dawson Waldron
Date of Hearing:	28 February 2003
Date of Judgment:	28 February 2003