Applicant A119 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 715

FEDERAL COURT OF AUSTRALIA

Applicant A119 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 715 APPLICANT A119 of 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 44 of 2004 SELWAY J 6 MAY 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 44 of 2004

BETWEEN: APPLICANT A119 of 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SELWAY J

DATE OF ORDER: 6 MAY 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The applications for an extension of time to seek leave to appeal and for an extension of time to institute an appeal and the application for leave to appeal have all been dismissed. 2. The applicant to 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

SOUTH AUSTRALIA DISTRICT REGISTRY S 44 of 2004

BETWEEN: APPLICANT A119 of 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SELWAY J

DATE: 6 MAY 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 On 28 February 2003, the applicant instituted proceedings in the High Court, seeking an order nisi for the issue of writs under section 75(v) of the constitution, to set aside a decision of the Refugee Review Tribunal. Those proceedings were remitted to this court. They were heard by the primary judge. His Honour dismissed the application on 4 March 2004. 2 The applicant has filed in this court an application for an extension of time to appeal from the order of the primary judge. The appeal should have been instituted by 25 March 2004. It was not instituted until 26 March 2004 by reason of some minor administrative errors. The respondent has not been prejudiced by that delay. The respondent has objected that the order made by the primary judge was an interlocutory order from which leave to appeal is required. 3 The application before the primary judge was an application for an order nisi. However, O 51A r 5 of the Federal Court Rules enables the court to proceed directly to determine whether a final order should be made. It might be thought to be implicit in that order that the court can also determine as a final order to dismiss the application. If that jurisdiction and power exists, it is clear that that is what the primary judge did in this case. There is nothing in his Honour's reasons which suggested that his Honour was considering whether an order nisi should be granted. In particular, he did not apply a test of whether it was reasonably arguable whether an order absolute should be made in due course, this being the relevant test for the grant of an order nisi. Rather, he seemed to have proceeded to the final issue of whether there had been a jurisdictional error. His reasons were that there had not been a jurisdictional error. His order was that he dismissed the application. If the matter were clear of authority, it might be thought that such an order was a final order and that leave to appeal was not required. 4 However, the Full Court of this Court has held in NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297 by majority that in circumstances that seem similar to those before me the order should be treated as an order refusing an order nisi from which leave is required. On the face of it then it would seem that leave is required in this case. Mr Newman on behalf of the applicant made an oral application for leave to appeal and made a further oral application for an extension of time for seeking such leave. In any event, an extension of time is required. 5 In relation to the extension of time there are two issues to be considered. One involves the delay itself; the other the prospects of success if an extension were granted. In regard to the application for leave to appeal, again the prospects of success need to be considered. 6 In this case, the first proposed notice of appeal did not identify any relevant error by the primary judge. Rather, the grounds of appeal seemed to assume that the primary judge was engaged in a process of merit review. He was not, as his Honour's reasons make clear. On 23 April 2004, the applicant filed an amended proposed notice of appeal. That amended notice makes reference to the High Court decision in S157 of 2000 v The Commonwealth (2003) 211 CLR 476. It would seem that it is at least acknowledged that the primary judge's jurisdiction was limited to any jurisdictional errors in the process, reasoning or decision of the Tribunal. However, the particulars provided do not identify any error by the primary judge that might be thought to relate to the Tribunal's jurisdiction. 7 Mr Newman, who appeared for the applicant, argued that one relevant jurisdictional error by the Tribunal was its failure to deal with the claim by the applicant that he had to leave the safe area in which he lived in order to go to work and that he was at risk of persecution when he did so. However, it would seem to me that the Tribunal did deal with this issue. The Tribunal said: '… on the applicant's own admission, he lives in a majority Christian district, he is able to live in his own community without fear of harm, his family are able to live in safety and he is not prevented in any way from pursuing his own religion. However, he says he fears leaving in his own particular area for fear he will be targeted by a Hindu fundamentalist. The Tribunal notes that in nearly 30 years of active Christian participation, the applicant has been in a situation on one occasion in which he feared serious harm from assailants whom he believed to be Hindu fundamentalists. The Tribunal is satisfied that this was a random event and that, in any case, state protection was (and is) available.' 8 The Tribunal did acknowledge that there was communal violence in India and that some of it was directed or could be directed against Christians. In consequence, the Tribunal came to the conclusion: 'Although there is some ground for the applicant's apprehension about tensions between Hindu fundamentalists and Christians in general, there is nothing to indicate that he himself is particularly at risk. He comes from a part of India which is singled out in the independent evidence as being actively secular and pro minority. The state government in Tamil Nadu is active in keeping the peace and protecting its citizens. The tribunal notes that none of the anti-Christian incidents enumerated in the Religious Freedom Report 2002 occurred in Tamil Nadu.' 9 It would seem clear that the Tribunal did in fact address the question whether the applicant would be safe if and when he left the Christian area in which he lived. It would also appear to me that the primary judge understood this. In his own reasons the primary judge said: 'Counsel for the applicant contended that the Tribunal had erred in failing to address whether the applicant had a well-founded fear of persecution if he were to return to India because it focused only upon his local community. The submission was based upon a particular passage in the tribunal's reasons in which it noted, on the basis of the applicant's own evidence, that he lives in a majority Christian district, that he was able to live in his own community without fear of harm, that his family is able to live in safety and that he is not prevented in any way from pursuing his own religion. He complained however, that he could not move outside his community and pursue his career without fear of such violence from Hindu fundamentalists. It was submitted that the Tribunal had not addressed that claim. If the Tribunal had failed to address an integer of his claim to be a person having a well-founded fear of persecution for a convention reason, that failure would amount to a jurisdictional error on its part (See Plaintiff S157/2000 v Commonwealth of Australia (2003) 211 CLR 476. However, in my judgment the Tribunal did not fail to appreciate the applicant's claims or to address them. The reference in that passage of its reasons to the applicant's own community is, as his counsel acknowledged, a reference to his local community or local village rather than to the state of Tamil Nadu itself. Whilst noting that part of the applicant's evidence, the tribunal did in fact address his claims in relation to his ability to live and work generally in the Tamil Nadu state. It made findings, recorded above, that within the Tamil Nadu state the applicant did not have a well-founded fear of persecution for a Convention reason. The applicant did not give any evidence that he needed to or intended to, leave the Tamil Nadu state to move to other parts of India. In those circumstances, the Tribunal did not need to address his claims to have a well-founded fear of persecution beyond his participation in the life of the Tamil Nadu state.' 10 Mr Newman also argued that the Tribunal misunderstood the applicant's claim in relation to there being only one incident involving a personal attack upon him or his property – that incident involving an attack on his car (discussed further below). Mr Newman said that there had been other incidents of economic discrimination against the applicant over many years and gave as examples the failure of banks to give him loans. In relation to that, the Tribunal in its reasons did mention that the applicant had said that there were troubles that he had faced in 1980 and again prior to his father's death in 1985. However, the Tribunal found that: '…[The applicant had] made no claims that he had suffered harm, let alone harm amounting to persecution, for reason of his Christianity until the election of the BJP government.' 11 It would seem to me that the matters to which Mr Newman has referred do not involve harm, let alone harm amounting to persecution sufficient to give rise to a right to protection under the Convention. In those circumstances, it is correct to say, as did the primary judge, that there was only one incident where the applicant had made a report of harassment since 1998. That incident occurred in November 2000 and involved an attack on the applicant by a mob. The primary judge records in relation to that incident: '… The Tribunal accepted his version of events. He was driving a car near a convent when he was stopped and threatened. He thought that he could have been threatened then by fundamentalist Hindus because of his Christian religion. Soon after being stopped, a police siren was heard approaching the scene and those attacking him scattered. No harm came to him. However, he maintained the view that those in authority do not seek to protect Catholics in his region from religiously-motivated mob violence.' 12 In my view, the Tribunal did understand the claims being put by the applicant and the primary judge has appropriately dealt with them. If the issue was solely one in relation to an extension of time, then clearly the prospects of success if leave were granted must be weighed against any considerations relating to the delay. Given that the delay was short, was explainable and that there was no prejudice, I would be very ready to grant an extension of time if it would enable the applicant to put any arguable proposition to a Full Court. 13 However, in this case, the applicant has not identified any ground of appeal or any particulars of any ground that identifies any specific or arguable error that he alleges was made by the primary judge. In my view, no arguable basis for an appeal has been shown and to give an extension of time in these circumstances would be futile. For the same reasons, it would be futile to grant leave to appeal or to grant an extension of time to seek leave to appeal. For these reasons, it seems to me that these various applications for an extension of time and for leave to appeal should be dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.