Applicant S451 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 602

FEDERAL COURT OF AUSTRALIA

Applicant S451 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 602 APPLICANT S451 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 411 OF 2004 STONE J 10 MAY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 411 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: APPLICANT S451 OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 10 MAY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant to pay the respondent's costs of the notice of motion, excluding costs incurred in relation to the hearing before Branson J on 29 April 2004. 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 411 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: APPLICANT S451 OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE: 10 MAY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 I have before me a notice of motion seeking leave to appeal from a decision of Moore J made on 18 March 2004. The applicants are husband and wife who are citizens of Sri Lanka. They arrived in Australia in 1997. They applied for a protection visa but were refused successively by a delegate of the respondent and by the Refugee Review Tribunal. Their application for review of the Tribunal's decision in this Court was rejected both at first instance and on appeal. The applicant then commenced proceedings in the High Court seeking relief by way of constitutional writ. Gaudron J remitted the proceedings to this Court pursuant to s 44 of the Judiciary Act 1902 (Cth). 2 In his decision of 18 March 2004, Moore J dismissed the application for an order nisi and ordered the applicants to pay the respondent's costs. It is now well established that this was an interlocutory decision and is subject to appeal only with the leave of the Court. Applicant S442 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 28; NAHQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 297. In considering an application for leave to appeal from an interlocutory decision, regard must be had to the likelihood of the appeal succeeding and whether it is in the interests of justice for leave to be given; Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 3 The proposed notice of appeal sets out three grounds of appeal. They are: (a) His Honour erred in holding that a breach of the rules of natural justice did not occur in connection with the making of the Decision. (b) His Honour erred by misunderstanding the proposition put forward by the applicant and thus dismissed the second ground. (c) His Honour erred by holding that the Tribunal made a distinction, between, on the one hand "helping Tigers" and "Tigers had come to his house", and on the other "harbouring Tigers". Thus holding what the Tribunal did was to decide that the claim "he was accused of helping the Tigers" and "Tigers had come to his house did not go as far as to suggest what was being alleged against him was that he was harbouring Tigers". 4 The background to the applicant's claim is set out at [3] to [4] of his Honour's judgment: 'Generally, the applicant's claims were as follows. He is a Sri Lankan Tamil and a Roman Catholic. His claims, in overview, were described by the Tribunal in the following passage from its reasons: In essence, the applicant claims to fear persecution by the Sri Lankan authorities by reason of political opinion, which has been imputed to him on the bases that: First, that he accepted funds from Tamils outside Jaffna and from overseas which he then transferred from his bank account to the recipients in Jaffna and, in the course of this activity, he was associated with Catholic priests who were arrested for taking money and goods into Jaffna and who were thought by the authorities to have been assisting the Liberation Tigers of Tamil Eelam (LTTE); and second, that he was suspected of providing shelter or of harbouring LTTE members in his home in Colombo. Specific aspects of his claims were that he had been detained overnight in April 1996 (though the Tribunal discussed uncertainties about this date) because his name had been found on a Catholic priest, Father Jebanesan, who was arrested while travelling with a large amount of money in his possession. He also claimed to have been arrested and detained on subsequent occasions, in particular March 1997.' 5 At [5] to [10] of his reasons, his Honour reviewed the Tribunal's reasons for its decision and considered the claims made by the applicant. His Honour concluded at [21] that: 'Having regard to the absence of any point of substance raised in the application, I propose to dismiss the application for the order nisi with costs.' 6 Neither in written or oral submissions before me today has the applicant identified any error made by his Honour. I accept the respondent's submission that the applicant's arguments amounted to an attempt to re-argue the merits of the case. It is not necessary for me to canvass those submissions in detail. In my view, Moore J's judgment was correct for the reasons which his Honour gave. 7 It follows that I am of the opinion that there would be no point in granting leave to appeal and accordingly leave is refused. The respondent has also applied for costs. There is an issue in relation to a hearing held before Branson J on 29 April 2004. The hearing before Branson J had to be aborted because of an error which, I understand, was quite innocently made on the part of the respondent. For that reason, the respondent should have the costs of the notice of motion not including costs incurred in relation to the hearing on 29 April 2004. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone .