FEDERAL COURT OF AUSTRALIA S1758 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 186 S1758 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR NSD 2349 of 2005 GRAHAM J 14 FEBRUARY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2349 OF 2005 BETWEEN: APPLICANT 21758 OF 2003 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: GRAHAM J DATE OF ORDER: 14 FEBRUARY 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Refugee Review Tribunal be added as a Second Respondent to the application for leave to appeal. 2. The time for filing the Applicant's application for leave to appeal from the Judgment of Justice Emmett of 9 November 2005, be extended up to and including 29 November 2005. 3. The application for leave to appeal be dismissed. 4. The Applicant pay the First Respondent's costs fixed in the agreed sum of $900. 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 2349 OF 2005 BETWEEN: APPLICANT S1758 OF 2003 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: GRAHAM J DATE: 14 FEBRUARY 2006 PLACE: SYDNEY REASONS FOR JUDGMENT 1 What is presently before the Court is an application for leave to appeal from a judgment of Emmett J given on 9 November 2005 and for an extension of time within which that application may be brought. The application was itself filed on 29 November 2005, that is to say, outside the time permitted by Order 52, rule 10(2A)(b) of the Federal Court Rules. However, the Minister, through her solicitor, has indicated that she does not oppose an extension of time within which the application may be brought. In the circumstances, the question becomes whether the Applicant has established that the decision of Emmett J was attended with sufficient doubt to warrant its reconsideration and whether substantial injustice would result if leave to appeal were refused. 2 To enable the matter to be properly considered, it is necessary to briefly recite the history of the matter. The Applicant is an Indian national who comes from the Punjab and is a Sikh. He claims to be a Punjabi poet. The Applicant arrived in Australia on 8 August 1996 and, as I would understand it, was accompanied by his wife. On 21 August 1996, the applicant and his wife applied for Protection Visas. The application was refused by the Minister's delegate on 27 June 1997. The Applicant and his wife then sought review of the Minister's delegate's decision in the Refugee Review Tribunal ('the Tribunal'). That application was filed on 28 July 1997. 3 It would appear that the Applicant's wife returned to live in India on 31 March 1998. On 11 January 2000, a hearing took place in the Tribunal, following which the Tribunal handed down its decision on 16 February 2000, that decision being to affirm the decision of the Minister's delegate to refuse the visa applications. On 30 May 2003, the Applicant and his wife, by their then solicitor, applied to the High Court of Australia for the grant of orders nisi for the issue of Constitutional writ relief to set aside the decision of the Tribunal and preclude the Minister from acting upon it. 4 The case of the Applicant and his wife, as advanced before the Tribunal, was to the effect that they had a well-founded fear of being persecuted in India for reason of their religion. The Applicant contended that he had been detained on some four occasions by the police because of his reading pro-Sikh poetry and/or making speeches at a Sikh temple. In addition, it was contended that the Applicant's wife had been detained, raped and mistreated by the police. 5 The Tribunal pointed out, and in my view correctly, that it would not be open to the Minister to grant the Applicant's wife a Protection Visa in circumstances where she had left Australia and returned to India. The Tribunal did not accept that the Applicant's wife had been detained, raped and mistreated by police. The Tribunal had problems in accepting the credibility of the Applicant's claims about his wife's return to India, her alleged activities there, his assertion that she had gone into hiding and his assertion that she went back to India to pay off the police. The Tribunal was unable to find that the Applicant's wife had a well-founded fear of persecution in India. 6 The Tribunal was not able to accept that the Applicant faced a real chance of persecution for a Convention reason if he returned to India. It did not consider him to be a '… high profile Sikh activist'. The Tribunal did not accept the Applicant's case that he had been arrested by the police on four separate occasions in 1995 and 1996. The Tribunal concluded that the Applicant was not a person of adverse interest to the authorities, as he had claimed. The Tribunal went further and found that, even if the Applicant had fears of persecution, those fears were not well-founded because of changed circumstances in the Punjab. The Tribunal had problems with the Applicant's credibility and was not satisfied that he had a well-founded fear of persecution for a Convention reason. 7 The applicant's application for an order nisi was supported by the affidavit of his then solicitor which, amongst other things, contended that the Tribunal took into account written submissions by the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs made in accordance with s 423(2) of the Migration Act 1958 (Cth) without giving him an opportunity to be heard in respect of those submissions. The Tribunal's decision makes no mention of any written argument relating to issues arising in relation to the decision under review by it. No evidence has been given by the Applicant identifying the alleged submissions. 8 Before Emmett J decided the Applicant's application for Constitutional writ relief, the Federal Court of Australia District Registry wrote to the Applicant inviting him to make such written submissions as he wished on the question of whether the Court should make an order nisi. It would appear that, contrary to what was said in Emmett J's reasons for judgment of 9 November 2005, the Applicant took up the invitation that was extended to him, writing to the Court on 1 December 2004 stating: 'I beg to state that I respect the Court and Judges. But RRT Judge did not read my case. Only one question asked me ten times and my answer was same. And the RRT Judge said I have not believe although I took oth (sic) the why I tell lie. Therefore I request you, please send my case to RRT. I am very thankfull to you.' 9 That letter has become exhibit A1 on the present application. When the present application was filed, so also was a draft notice of appeal. That draft notice propounded as a relevant ground that the Applicant was denied procedural fairness, not being given an opportunity to present his case at the time of the hearing. In the light of the communications to which I have referred, this submission would appear to be without foundation. The draft notice of appeal continued: 'I have a fear of persecutaion. If I go back to India I will be killed. The RRT did not apply the right test for judgeing my claim for the protection visa. 2. The RRT was biased when they made decision before the hearing.' 10 Emmett J, in his reasons for judgment, expressed the opinion that an order nisi should not be granted in the absence of evidence or material showing that there was at least an arguable case for the grant of the final relief claimed. He said that the material must be more than mere pleading or assertion of the right to such relief. There must be some evidence of facts that would support the grant of the relief claimed. In the context of the relief claimed by the Applicant, his Honour said there should be material that would show that it was at least arguable that the Tribunal had fallen into jurisdictional error in making its decision. 11 I agree with the decision of Emmett J that the material before him did not disclose an arguable case. Whilst his Honour may have been in error in indicating that there had been no response to the Court's letter to the Applicant of 12 November 2004, there was, in my opinion, nothing in the further submission received from the Applicant which could have influenced his Honour to decide the matter before him differently. Indeed, the terms of the submission, if anything, supported the decision which his Honour reached. In his oral submissions, the Applicant said that the Tribunal did not consider him to be a credible witness and that the Tribunal didn't believe him even though his evidence was true. 12 He wanted, in effect, a merits review and asked that the Court remit the matter to the Tribunal for a fresh hearing. Plainly, the Court does not have power on an application such as the present to simply give the Applicant a second chance or a favourable decision on the merits. The Applicant has not indicated anything which casts doubt on the correctness of the decision of Emmett J. Accordingly, the application for leave to appeal should be dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham . Associate: Dated: 6 March 2006 Counsel for the Applicant: The Applicant appeared in person. Solicitor for the First Respondent: A Markus of the Australian Government Solicitor Date of Hearing: 14 February 2006 Date of Judgment: 14 February 2006