NAUK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 477

FEDERAL COURT OF AUSTRALIA

NAUK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 477

MIGRATION – no issue of principle NAUK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1857 of 2004 CONTI J 7 APRIL 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1857 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NAUK

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 7 APRIL 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed.

2. The appellant to pay the respondent's costs assessed at $4000.

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 NSD 1857 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NAUK

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE: 7 APRIL 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal against the reasons for judgment of Federal Magistrate Raphael delivered on 24 November 2004, whereby his Honour dismissed the appellant's claim to set aside a decision of the Refugee Review Tribunal handed down on 18 July 2003, which in turn had affirmed a decision of the Minister's delegate not to grant the appellant a protection (Class XA) visa. 2 The appellant is a national of India of Muslim faith who claimed a protection visa upon the basis that he feared harm from the BJP Party by reason of his membership of the Majlis Bacho Thareek (a political organisation), and on the grounds of his religious beliefs. He arrived in Australia on a student visa on 23 December 1998 and later lodged an application for a protection visa on 17 October 2001. A delegate refused the appellant's application on 14 March 2002. He made his application to the Tribunal for review of that decision on 14 January 2003. Contrary to his contentions, the Tribunal found that the appellant was not a member of the Majlis Bacho Thareek organisation and that he had not been kidnapped by the BJP. Furthermore, the Tribunal found that the appellant lacked credit. In paragraph [8] of his Honour's reasons, Raphael FM extracted the Tribunal's finding in this regard: '[t]hroughout the hearing the applicant was prepared to change his evidence in response to inconsistencies put by the Tribunal'. The Tribunal was therefore not satisfied that the appellant suffered from a well-founded fear pf persecution on either of the bases put forward by him. 3 During the hearing the appellant requested additional time in which to provide documentation that would corroborate his evidence as to his well-founded fear of persecution for reasons of religion. The Tribunal granted that extension of time. On 14 May 2003 the Tribunal received a letter from the appellant requesting a further extension of time which was granted until 10 June 2003. With this grant, the appellant had a total of 28 days in which to provide further documentation. Another request for an extension was made on 11 June 2003 by letter, however on this occasion only seven more days were given, the view being that the appellant had already had a number of years to compile that information. The appellant did provide some documentation, though only one of those documents bore directly on the position of the appellant in India. Raphael FM observed that the Tribunal did not accept that document (which purported to be a declaration of the District Court of Hyperabad) was genuine. 4 Before Raphael FM, the appellant submitted that the Tribunal had fallen into error because it had not allowed him a further period of time after the hearing (in addition to that already allowed to him) in which to adduce documentation which supported his case. Taking into account the various extensions of time afforded to the appellant by the Tribunal, Raphael FM was satisfied that no injustice was done to the appellant by the Tribunal, particularly in light of the fact that the appellant had not even provided an affidavit listing the types of documents that he might have liked to produce given still further time. A reasonable opportunity to present the appellant's case being afforded, in Raphael FM's opinion, the Tribunal had committed no jurisdictional error in affirming the delegate's decision and the appeal failed. 5 In his appeal to this Court, the appellant articulates the following purported grounds of appeal (read literally): (1) A breach of rules of natural justice occurred in connection with making of the decision; (2) Was not given time and a fair trial at the hearing. The appellant also appears to allege in his notice of appeal that the Tribunal member who affirmed the Minister's delegate's decision was biased. I infer this 'ground' from the orders sought by the appellant, which include (read literally) 'case should be sent back to RRT with a biase [sic] member appointed to dealt [sic] with the case'. Presumably the appellant meant to use the term 'unbiased', rather than 'biased'. 6 The appellant has not been able to articulate to me any reason or basis for those purported grounds of appeal; nor has he particularised those grounds in any way. Moreover, the appellant has failed to identify any error or point to any mistake, much less an error of law in either the Tribunal member's of the Federal Magistrate's reasons for decision. 7 I would adopt the submissions of counsel for the Minister and reproduce paragraphs [11] and [12] of the same (references to the relevant pages of the Court Book omitted): '[11] The appellant was entitled to no more than a reasonable time to put his case and it was not demonstrated that he was denied that entitlement. On the application for review to the Tribunal, the appellant was told that "with this application you should give us any information, documents or submissions that you want the Tribunal to consider or send them to us as soon as possible". By letter dated 14 January 2003, the appellant was also told that he should immediately send any documents, information or other evidence he wanted the Tribunal to consider. By letter dated 22 March 2003, inviting the appellant to the hearing on 2 May 2003, the appellant was expressly warned that the Tribunal had "considered the material before it in relation to [his] application but is unable to make a decision in [his] favour on this information alone"… [12] There was no jurisdictional error, or alternatively, if there was, it could not have affected the decision of the Tribunal…" 8 In my opinion, the appeal is misconceived and provides no fair or reasonable or proper basis according to law for the bringing of this appeal. The appellant has not identified anything that may vaguely resemble jurisdictional error and I must unfortunately conclude that this appeal was brought in the hope of delaying the inevitable return of the appellant to his place of origin. I therefore dismiss the appeal, and I order the appellant to pay the minister's costs calculated at $4000. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.