STWB v Minister for Immigration & Multicultural & Indigenous Affairs

6 The above descriptions are apt to characterise the present matter which arose out of an unsuccessful application for a protection visa.

THE PRIMARY JUDGE'S DECISION 7 The basis of the applicant's visa application was described by the Refugee Review Tribunal in these terms: "In written submissions the [applicant] claimed that he was a left-handed bowler in the game of cricket and had played for various clubs in India. He claimed that he had a good career ahead of him but that, because he was a Roman Catholic, Hindu members of his club in Kerala had told him that India belonged to Hindus and as a Christian he should not try to gain prominence in sport. In 1998 he was badly injured during an assault by members of the RSS during a cricket match in Mangalore in Karnataka state. The police were told but took no action. After this other professional clubs did not want him to play for them. He 'could have survived' if he was not prominent in his career as a fast cricket bowler. He returned to his home town of Chalakkudy and began to play cricket with small clubs there. In February 1999 RSS party members attacked him and broke his left arm. He left for Bombay and began playing for small clubs. In April 1999 he was attacked at his residence. He realised that the party Shivsena had carried out the attack under the instruction of the RSS. He went back to Mangalore and joined the Karawali Cricket Club. Through them he tried to go for training in Australia. He did not tell them the real purpose was to take refuge. He could not join the first group of players who left for Australia in May 1999. He came later to get away from the discriminatory politics of caste and religion."

8 The Tribunal rejected the application on two grounds. It did not accept the applicant's claims that he suffered the persecution he alleged because of Christian religion. It did not accept that the government authorities in India would not afford him adequate protection. 9 That decision was challenged in judicial review proceedings on procedural fairness grounds. It was claimed that the Tribunal did not give the applicant an adequate opportunity to present his case. The primary judge, in an ex tempore judgment, considered that claim to be "plainly untenable". 10 The undisputed facts were summarised by his Honour in the following terms: "(a) The hearing was initially set down for 27 August 2001. On 26 August 2001 the applicant requested that the hearing be adjourned to enable him to obtain further information. That request was acceded to and it was then relisted for 30 August 2001 … (b) The applicant claimed at the hearing that he was seeking documents to support his claim. The applicant advised the Tribunal that he could submit material about his claim by 7 September 2001. The Tribunal advised the applicant that he could have 21 days in which to obtain and submit his supporting documentation; that is, until Monday, 17 September 2001. (c) The applicant did not provide any further material on or before 17 September 2001, nor did he request any opportunity to provide any further documents after that date. (d) Under cover of a letter dated 25 September 2001, the applicant submitted a large bundle of documents which the applicant wished the Tribunal to consider. The Tribunal received those documents and considered them. (e) On 25 September 2001 the applicant also requested a further month in which to submit further documents. The Tribunal made no response to that. It is clear from the Tribunal's decision that the decision was signed and dated 9 October 2001. However, it is also clear that the Tribunal decision was not handed down until 6 November 2001. Under the Migration Act 1958 (Cth) ('the Act'), the date of the decision is the date that it is handed down, not the date that it is signed: see s 430B(4) of the Act. In my view, it was open to the Tribunal to have varied the decision that it made between 9 October and 6 November. In the result, then, the date of the decision was six weeks after the date requested by the applicant to provide further information. The applicant did not provide any further documents to the RRT within that period at all."

11 The primary judge concluded that "it is perfectly clear that the applicant was not denied procedural fairness". His Honour also observed that, even if there was such a denial, it did not go to the issue of State protection "which by itself is conclusive".

THE PROJECTED APPEAL 12 The draft Notice of Appeal does not as such specify a ground of appeal. It baldly asserts no more than that: "2. The learned Trial Judge erred in law by not finding that the Refugee Review Tribunal had made a jurisdictional error in reaching the conclusion that the Appellant is not entitled to Protection Visa."

13 The applicant, who represented himself, was invited to further specify the question of law that he would wish to raise on appeal and to file written submissions. All that has been elicited by way of response has been a factual narrative of the events he said gave rise to his fear of persecution and a bundle of extracts from newspapers, websites and periodicals containing country information which, seemingly, he wishes the appeal court to consider. 14 In an earlier affidavit filed in support of this application the applicant made plain that he has in his possession "strong evidences" which he believes the appeal court would "consider … favourably" and order a protection visa.

CONCLUSION 15 It is clear that the applicant in fact is seeking no more in the appeal he wishes to mount than a merits review of the Tribunal's decision. Such review, of course, is impermissible in this Court. It is equally clear that the primary judge has committed no arguable appellable error. If leave was granted the appeal would be doomed to failure. For this reason I will refuse the application for leave to file and serve a notice of appeal and I will order the applicant to pay the respondent's costs of the application. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.