Applicant A386 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 195 (2 August 2004)

Last Updated: 9 August 2004

FEDERAL COURT OF AUSTRALIA

Applicant A386 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 195

MIGRATION – appeal from summary dismissal for failure to comply with orders, and on basis amended application cannot possibly succeed



Federal Court of Australia Act 1976 (Cth) s 24(1A)



























APPLICANT A386 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
S 761 OF 2003


SPENDER, STONE AND BENNETT JJ
2 AUGUST 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 761 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT A386 OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	SPENDER, STONE AND BENNETT JJ
DATE OF ORDER:	2 AUGUST 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 761 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT A386 OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	SPENDER, STONE AND BENNETT JJ
DATE:	2 AUGUST 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT

1 This is a purported appeal from orders of Lander J made on 8 September 2003 dismissing an application for review of a decision of the Refugee Review Tribunal (‘the RRT’). The basis of his Honour’s decision was that no steps had been taken by the applicant in accordance with orders for the conduct of this appeal made by Selway J on 7 July 2003. Lander J also ordered that the applicant pay the respondent’s costs.

2 The position is that when this matter and a number of other matters came before Lander J on 8 September 2003, Mr Clisby appeared on behalf of the applicants and informed the Court that each of the applicants had been made aware that if they failed to comply with the orders made by Selway J the respondent would seek orders dismissing the applications. It was confirmed that none of the parties intended to comply with the order. Accordingly, his Honour dismissed a number of applications with costs, including that of the present applicant.

3 In the appeal book there is a Notice of Appeal that purports to be an appeal from the whole of the judgment of Selway J given on 27 August 2003 in Adelaide. There is, however, nothing in the appeal book that refers to any judgment of Selway J given on that date in relation to this matter. Before us today, the respondent has confirmed that the reference should be to the judgment of Lander J and to his Honour’s orders referred to in [1] above.

4 The respondent has filed a Notice of Objection to Competency on the basis that the Court has no jurisdiction because the judgment of Lander J is interlocutory and the applicant has not been granted leave to appeal from that judgment pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) and/or because the applicant has failed to file and serve a Notice of Motion seeking leave to appeal.

5 This matter concerns an Indian national aged 28 who is of the Hindu religion. He claims that, as a result of him having been a member of the RSS (a Hindu fundamentalist organisation) and then having opposed their actions, there is a real chance he will be persecuted by the RSS if returned to India.

6 In the findings and reasons for decision of the RRT, the member found the applicant not to be credible in a number of important respects. It referred to the applicant’s lack of knowledge of even the most elementary aspects of the RSS organisation as indicated by independent country information. It was not accepted as credible that a person with his alleged RSS background would be unaware of the true nature of that body and its notorious activities against minority religions. The RRT member did not accept that the RSS was involved in a major incident in March 2000 in Kashmir on which the applicant relied. Having made two strong findings against the credibility of the applicant, the RRT member then found there were fatal credibility problems associated with the applicant’s claims about incidents he alleged had occurred in June and July 2001. The RRT discussed these problems in detail and gave reasons for this conclusion. The RRT did not accept that the RSS would have given a person as unimportant as the applicant the attention that he alleged.

7 In addition, the RRT member decided that even if the applicant were a member of the RSS he was a particularly low level member and could not be of interest to the RSS beyond his home district. The member did not think that there was any reason to suppose the applicant would be pursued by the RSS outside that area and found that, as a member of the majority group comprising over 80% of the Indian population, the applicant could relocate to other parts of India. In reaching this conclusion the RRT member relied on independent country information.

8 The applicant, who joined the Navy in 1996, also made a claim that he would be punished for desertion from his naval ship if sent back to India. The RRT member considered this was a matter of military discipline and noted that the applicant had lived under such discipline in the Indian navy from early 1996 to late 2001 and had not claimed to be treated unfairly under it in the past. Relying on country information concerning the Indian legal system the RRT member saw no reason to suppose any punishment in respect of desertion would discriminate against the applicant for a Convention reason or would amount to persecution.

9 For these reasons, the RRT member dismissed the application and found there was no well-founded fear of persecution within the meaning of the Convention.

10 At the hearing before this Full Court the applicant attributed his failure to respond to the orders made by Selway J to his depression and consequent inability to decide what, if anything, he should do. However, he did not contend that Mr Clisby, in making the statement referred to in [2] above, was acting other than in accordance with his instructions.

11 We do not consider that any reviewable error has been disclosed in the decision of the RRT. There would be no utility in an appeal and we therefore decline to grant leave to appeal from the judgment of Lander J. The appeal is incompetent and is dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Stone and Bennett.

Associate:

Dated: 6 August 2004

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Mr K Tredrea
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	2 August 2004
Date of Judgment:	2 August 2004