M118 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 289 (10 November 2004)

Last Updated: 22 November 2004

FEDERAL COURT OF AUSTRALIA

M118 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 289

NAHQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 297 – applied
Applicant S442 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 28 – applied
Applicant M98 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 106 – applied





























M118 OF 2003 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Q 115 OF 2004

LEE, MERKEL AND HELY JJ
10 NOVEMBER 2004
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 115 OF 2004

On appeal from a judgment of a single judge of the Court

BETWEEN:	M118 OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	LEE, MERKEL AND HELY JJ
DATE OF ORDER:	10 NOVEMBER 2004
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application for leave to appeal be refused.

2. The appellant’s appeal be dismissed as incompetent.

3. The appellant pay the respondent’s costs of the appeal and the application for leave to appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 115 OF 2004

On appeal from a judgement of a single judge of the Court

BETWEEN:	M118 OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	LEE, MERKEL AND HELY JJ
DATE:	10 NOVEMBER 2004
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT:

1 The appellant is a citizen of India. His application for a protection visa under the Migration Act 1958 (Cth) was refused by a delegate of the Minister. The Refugee Review Tribunal ("the RRT") affirmed the delegate’s decision and the primary judge (Kiefel J) dismissed the appellant’s application seeking judicial review of the RRT’s decision.

2 The appellant, who represented himself before the primary judge and on the appeal, has stated in his grounds of appeal that the primary judge’s decision is wrong in law and that the primary judge failed to give sufficient weight to the matters raised by the appellant in support of his application.

3 The RRT rejected the appellant’s claim that he has a well-founded fear of political persecution because of his actual or imputed involvement with, or support of, the LTTE. The difficulty confronting the appellant in his quest to challenge the RRT’s decision is that the RRT found that the appellant had exaggerated his claims and was not a credible witness.

4 Before the primary judge the appellant relied on a general, but unparticularised, list of grounds for review. Her Honour carefully considered those grounds, the appellant’s written submissions and the further matters raised at the hearing by the appellant and concluded that none of the grounds had been made out. Accordingly the primary judge dismissed the appellant’s application with costs.

5 In the course of the hearing of the appeal the appellant applied for an adjournment of his appeal to enable him to obtain legal assistance. He has not explained why the application is made at this late stage nor is it suggested that there is any likelihood of legal assistance becoming available. A similar application was refused by the primary judge. We are not satisfied that any proper basis for an adjournment has been made out.

6 The appellant failed to file written submissions in accordance with the Court’s directions but handed up a written submission that appears to raise two issues considered by the primary judge. The main issue of relevance to the appeal was whether procedural fairness was denied to the appellant because certain material before the delegate of the Minister may not have been sent to the RRT. Her Honour considered that ground at [11]-[12] of her reasons and found that it had not been made out. The appellant has not demonstrated any error in her Honour’s reasoning. The second issue related to whether time should be enlarged for the bringing of the appellant’s application to the Court, but that issue was resolved by the primary judge in the appellant’s favour by the time for bringing the application being extended.

7 The hearing of the appeal was adjourned for a short period to enable an interpreter, which the appellant had requested, to attend court. When the hearing resumed with an interpreter assisting the appellant was not able to add to the grounds he had presented before the trial judge or in his written submission.

8 The respondent filed written submissions outlining why the primary judge did not err in law or in fact in dismissing the appellant’s application. We are satisfied that the respondent is correct in contending that no error of fact or law has been demonstrated and that the appeal the appellant seeks to prosecute has no merit.

9 However, the respondent pointed out that the application refused by the primary judge was for an order nisi. The respondent then contended that, because her Honour’s decision was to dismiss an interlocutory application, leave to appeal is necessary. The respondent’s contention in that regard is correct: see NAHQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 297 at [3]; Applicant S442 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 28 at [7]; Applicant M98 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 106 at [7]. When the requirement for an application for leave to appeal was explained to the appellant he applied for his appeal to be treated as an application for leave to appeal. As the appeal sought to be brought is without merit it is appropriate to refuse the application for leave to appeal. In the circumstances the Court orders that:

• the application for leave to appeal be refused;
• the appellant’s appeal be dismissed as incompetent;
• the appellant pay the respondent’s costs of the appeal and the application for leave to appeal.

10 We would add that, if our view that the primary judge’s orders were interlocutory orders was incorrect, we would have dismissed the appeal with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee, Merkel and Hely.

Associate:

Dated: 10 November 2004

For the Appellant:	Appeared in person
Counsel for the Respondent:	Mr PG Bickford
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	10 November 2004
Date of Judgment:	10 November 2004