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[2004] FCA 523
Federal Court of Australia
2004-04-28
Sundberg J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 Application for leave to appeal from the decision of the Federal Magistrates Court dismissing an application for orders nisi for prohibition and certiorari directed to the Refugee Review Tribunal in respect of its affirmation of the respondent's decision to refuse the applicant a protection visa. The applicant and his family were applicants before the Magistrate, but only the husband/father seeks leave to appeal. 2 The application is supported by an affidavit by the applicant deposing that he is a Sri Lankan national who applied for a protection visa on 20 February 1997. The application was refused. The decision of the respondent was affirmed by the Refugee Review Tribunal. He says he joined in the Muin proceedings in the High Court, and subsequently filed an application in that Court. He says: "I disagree with the decision of his Honour, Federal Magistrate McInnis on the grounds that the Court is wrong when it concludes that there was no arguable basis for the application and that there has been a failure in the application to discharge the necessary evidentiary burden."
The draft Notice of Appeal accompanying the affidavit asserts an error of law constituting a jurisdictional error. The Particulars claim:
"The Court is wrong when it concludes that there was no arguable basis for the application and that there has been a failure in the application to discharge the necessary evidentiary burden." 3 The Federal Magistrate noted that before the Tribunal the applicant, who is a Tamil Roman Catholic, made numerous claims: racism at work, imputed support for the LTTE and threats against him by the JVP. The Magistrate noted the applicant's contention that the Tribunal had denied her procedural fairness by relying on "a number of country information and cables relating to persecution for association with the LTTE and Tamils in Colombo". His Honour said that no affidavit or other evidentiary material was filed in support of the claim. He said: "It was submitted in this case by the respondent that there are similarities between this case and the decision in M115/2003 when there was no affidavit material provided to suggest what the applicant could or would have done or said if the country information had been provided to him at the hearing. In this matter I am satisfied that there is no arguable basis for the application and accept the respondent's submission that there has been a failure in this application by the applicant to discharge the necessary evidentiary burden …. Applying the principles to which I have been referred in the present application, I am satisfied that the applicant has not provided material of a kind which would enable the court to grant the orders nisi sought."
His Honour's reference to "failure to discharge the necessary burden" and "the principles to which I have been referred" is to authorities establishing that an applicant who complains of the Tribunal's failure to provide him with information in its possession must put forward material to enable the court to determine whether, had the information been provided to him, he could have dealt with it in a way that might have affected the outcome of the case. See, for example, Applicant M115/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1448 at [18]‑[21] and Re Minister for Immigration and Multicultural Affairs; Ex parte A (2001) 185 ALR 489 at 501.
4 The draft Notice of Appeal simply takes issue with the Magistrate's conclusion. That conclusion is not attended by sufficient doubt to warrant its being reconsidered by the Court, whether a Full Court or a single judge. See Décor Corporation v Dart Industries (1991) 33 FCR 397. 5 In deciding whether to grant leave to appeal it is also necessary to consider whether substantial injustice would result if leave were refused, supposing the Magistrate's decision to be wrong. As was said in Décor at 399, the "doubt" and "injustice" questions bear upon each other. In view of what I regard as the applicant's very poor prospects of success on appeal, if leave were granted, it is artificial to suppose the decision below is wrong. In those circumstances, I am not satisfied that substantial injustice would result by the refusal of leave. 6 Leave to appeal is refused. The applicant must pay the costs of the application. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.
Applicant M183 of 2003
Minister for Immigration & Multicultural & Indigenous Affairs