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Federal Court of Australia - Full Court Decisions |
Last Updated: 11 May 2005
FEDERAL COURT OF AUSTRALIA
NAZV v Minister for Immigration &
Multicultural & Indigenous Affairs
[2005] FCAFC 76
MIGRATION – no point of
principle
Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190
ALR 601 referred to
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2;
(2003) 195 ALR 24 referred
to
NAZV
v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS
AFFAIRS
NSD 1623 OF 2004
TAMBERLIN, CONTI AND JACOBSON
JJ
SYDNEY
6 MAY 2005
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL
COURT OF AUSTRALIA
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BETWEEN:
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NAZV
APPELLANT |
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AND:
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MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS
AFFAIRS
RESPONDENT |
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TAMBERLIN, CONTI AND JACOBSON JJ
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DATE OF ORDER:
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6 MAY 2005
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WHERE MADE:
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THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent's costs.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court
Rules.
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT
OF AUSTRALIA
REASONS FOR JUDGMENT
THE COURT:
1 This is an appeal from a judgment of Moore J given on 19 October 2004. His Honour dismissed an application by the appellant purportedly made under section 39B of the Judiciary Act 1903 (Cth) ("the Act") for the review of a decision of the Refugee Review Tribunal ("the RRT"). The RRT affirmed a decision of the Minister dated 27 June 2003 refusing to grant the appellant a protection visa.
2 The appellant is a citizen of India. He claimed to have a well-founded fear of persecution on the ground that he was subjected to extortion and threats of violence from a particular police officer in India. His application for a protection visa also claimed that he was threatened by a "terrorist gang".
3 The appellant claimed that he owned a grocery shop and that a police constable in the area who was buying goods on credit from the shop refused to pay the bill, bashed the appellant and demanded further groceries on credit. The appellant also claimed that he had received threatening telephone calls from unknown people "possibly terrorist gangs".
4 By letter dated 16 October 2003, the RRT notified the appellant that it had considered the material before it on the application but was unable to make a decision in his favour on that information alone. The RRT invited the appellant to attend a hearing to give oral evidence and present arguments in support of his claims. On, or about, 5 November 2003 the appellant advised the RRT that he did not want to go to the hearing.
5 The RRT stated at [41] of its reasons that in the absence of an opportunity to discuss his claims with him and because of the very general unparticularised nature of the claims it was not prepared to accept that the appellant received threatening telephone calls from terrorist gangs.
6 The RRT said at [42] that it was satisfied that any threat of harm emanated from a corrupt police officer and some of "his cronies" who were motivated by greed. Accordingly the RRT was not satisfied that the appellant or his family had been persecuted for a convention reason, rather the appellant's problem were "criminal matters which were essentially matters for the local authorities". The RRT found that there was no convention nexus to the appellant's claims.
7 The RRT also found at [44] to [48] that the appellant would be able to obtain effective state protection from corrupt officers.
8 The primary judge summarised at [9] the appellant's grounds for attacking the decision of the RRT. The grounds, which do not seem to have been particularised, were that the RRT failed to accord procedural fairness, did not act in good faith and that the decision was not reasonably capable of reference to the decision-making power of the RRT.
9 The learned primary judge found that the approach of the RRT was unexceptionable. He found that no error was evident in the RRTs consideration of the material let alone jurisdictional error.
10 The notice of appeal filed on 8 November 2004 states eight grounds. However, the stated reasons contain nothing more than sweeping and unparticularised allegations of error. There are references to well known authorities including Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24 without any indication of how those authorities bear on the present matter.
11 The appellant filed no written submissions but he addressed us orally. The only submission which he put to us was that because of lack of funds he was not able to engage a lawyer and he asked for the hearing to be adjourned. We were satisfied that no reason for the adjournment had been advanced and that since the matter had been listed for hearing nearly six months ago there was no reason to adjourn the hearing.
12 The appellant also sought to tender two statement of evidence in support of his appeal however neither of the statements was before the RRT or the learned primary judge. Accordingly, we rejected the tender of those documents.
13 The RRT’s decision turned entirely on factual findings which were open to it. This was especially so in light of the appellant's failure to attend the hearing.
14 The notice of appeal raises no appealable issue. No error on the part of the primary judge has been demonstrated. The appeal must be dismissed with costs.
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I certify that the preceding fourteen (14) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Full Court.
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Associate:
Dated: 11 May 2005
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The Applicant appeared in person
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Counsel for the Respondent:
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Mr R Bromwich
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Solicitor for the Respondent:
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Blake Dawson Waldron
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Date of Hearing:
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6 May 2005
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Date of Judgment:
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6 May 2005
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2005/76.html