Applicant NAIK of 2002 v Minister for Immigration & Multicultural &

REASONS FOR JUDGMENT 1 The applicant applies for an extension of time in which to appeal against a decision of the Federal Magistrates Court. The decision was given on 20 November 2002. The applicant was one day late in attending at the Registry of this Court to file his notice of appeal. He filed the application for an extension of time on 12 December 2002 and the time for filing a notice of appeal expired on 11 December 2002. 2 The affidavit evidence of the applicant shows that he was suffering from a severe eye infection as from 5 December 2002. There is a medical certificate dated 9 December 2002 annexed to his affidavit stating that he was suffering from conjunctivitis and was "unfit for any duty" from 9 December to 11 December 2002 inclusive. According to the affidavit, the eye infection prevented the applicant from instructing his solicitor in time for him to prepare the notice of appeal. 3 It is not suggested on behalf of the respondent ("the Minister") that he would suffer any prejudice if the extension of time were granted. I would not shut out the applicant from the opportunity of appealing, merely on account of his being one day late. 4 The fate of the present application turns, not on the applicant's lateness, but on the question whether there is an appealable issue. A Full Court should not be troubled with hearing an appeal if no such issue is shown. Unfortunately for the applicant, in my opinion, it is clear that what he is seeking is a review on the merits and that an appeal by him would have no prospects of success. 5 The applicant is a Fijian Indian and a citizen of Fiji. He arrived in Australia on 17 February 1996 with his wife and daughter. They unsuccessfully applied for permanent residence. On 31 October 2000, the applicant applied for a protection visa. His wife and daughter were included in the application. The application was refused by a delegate ("the Delegate") of the Minister on 20 November 2000. The applicant, his wife and daughter applied to the Refugee Review Tribunal ("the Tribunal") for review of the Delegate's decision. On 29 June 2001, the Tribunal affirmed the Delegate's decision not to grant a protection visa. But on 21 December 2001, this Court set aside that decision and remitted the matter to the Tribunal for reconsideration. The matter was reconsidered by the Tribunal which conducted a hearing on 21 March 2002. On 28 March 2002, the Tribunal again affirmed the Delegate's decision not to grant a protection visa. The Tribunal's decision was handed down on 19 April 2002. 6 On 16 May 2002, the applicant applied to this Court for a review of the Tribunal's decision. The proceeding was transferred to the Federal Magistrates Court. On 20 November 2002, Raphael FM dismissed the application for review. The applicant was represented by a solicitor on the hearing before Raphael FM. 7 The following are the grounds on which the applicant would rely on an appeal, as those grounds appear in his draft notice of appeal: "2. The Court erred in not explicitly finding that the Refugee Review Tribunal's ('the Tribunal's') decision that the third incident of arrest was not for a convention reason was a jurisdictional error. It further erred in holding that it was not reviewable under s 39B of the Judiciary Act. 3. The Court erred in that, though it held that the Tribunal's decision in relation to the fifth allegation 'that the Tribunal wrongly held that police inaction did not occur for a convention reason' was illogical and against the weight of evidence, it was not reviewable under s 39B of the Judiciary Act. 4. The Court erred in holding that the Tribunal's decision that the Applicant's activities were 'minimal and insignificant' were reasonably open to the Tribunal on the fact it considered, and in the light of the Tribunal's knowledge of these matter gained through its experience. We submit that there are two errors here, first being that it was not reasonably open to the Tribunal to hold that the Applicant's activities were 'minimal and insignificant'. Secondly the Statement about Tribunal's knowledge shows a predisposition about the Tribunal that was inconsistent with a neutral mental frame required of the Court. Thus it constitutes an error on the part of the Court." 8 The Tribunal Member gave reasons which, with respect, I would describe as detailed and thorough, for affirming the decision of the Delegate. The Member outlined the claims made in the protection visa application and the evidence which was given at the hearing before the Member. The Member also reviewed country information relating to Fiji. 9 In the "Findings and Reasons" section of the Tribunal's reasons for decisions, the Member made the following findings: "1. The applicant is a Fijian citizen who legally departed his country on 17 February 1996 and arrived in Australia on the same day, as the holder of a valid Fijian passport, endorsed with an Australian Visitor visa. 2. The applicant's race/ethnicity is Fijian Indian. 3. The applicant was involved in pro democracy activities in 1988 and was arrested on three occasions and detained overnight on one of these. The applicant was not a high profile activist. These incidents did not constitute persecution within section 91R of the Act. 4. The applicant's political activities in the 1980's do not give rise to well founded fear of persecution upon return to Fiji on the basis of political opinion, given the passage of time and substantial changes in the political situation in Fiji. 5. Threats made against the applicant because of his dismissal of a Fijian employee in 1989, due to theft and misconduct, were not made on the basis of the applicant's race, but because of non Convention related criminal activity. Even if the Tribunal is wrong in this finding, the threats did not constitute persecution within section 91R of the Act. The claims also do not give rise to well founded fear of persecution upon return to Fiji, given the passage of time and substantial changes in the political regime in Fiji. 6. The stoning of the applicant's house in 1989 by the perpetrators of the attack did not constitute persecution within section 91R of the Act. 7. The applicant's partnership with Fijians was disbanded in 1995 due to interpersonal conflicts and unreasonable demands made by the Fijian partners. The failed business venture was not based on a Convention ground and did not constitute persecution within section 91R of the Act. 8. The applicant's pro democracy activities in Australia essentially involved assisting with fundraising charitable works. This was a one off activity and was not known by the Fijian Government. These activities do not give rise to well founded fear of persecution upon return to Fiji by virtue of an adverse political opinion, or one imputed to the applicant. 9. The claims on an individual and cumulative basis do not give rise to well founded fear of persecution on the basis of race, or political opinion within the terms of the Convention. 10. There is no well founded fear of persecution upon the applicant's return to Fiji, or in the reasonably foreseeable future on any Convention ground." 10 The Member then proceeded to give reasons for those findings and dealt in some detail with the following topics under these headings: · 1989 dismissal and attack · General harassment by Fijians · The 1995 failed business venture · Non-renewal of the lease for his former residence · Pro-democracy activities in 1988 · The landowner's knowledge of the applicant's 1988 pro-democracy activities · The former landowner's son is now a Government Minister · Pro-democracy activities in Australia · Delay in the application for the protection visa · The applicant's daughter