The appeal
18 On 5 May 2011 the first applicant (apparently on behalf of all applicants) applied to this Court for leave to appeal the federal magistrate's decision. Leave is required because a decision to dismiss under r 44.12(1)(a) is interlocutory (Federal Magistrates Court Rules, r 44.12(2)) and an appeal shall not be brought from an interlocutory judgment unless the Court or judge grants leave (Federal Court of Australia Act 1976 (Cth), s 24(1A)).
19 Order 52 r 5(2) of the Federal Court Rules 1979 (Cth) (repealed, effective 1 August 2011) ("the former Rules") required that an application for leave to appeal had to be filed within 21 days after the judgment was pronounced or a later date fixed for that purpose by the Court. Order 52 r 5(3) provided that, where an application was not filed within that time, an order had to be sought in the application that compliance with subrule (2) be dispensed with. In his application the first applicant sought such an order. In that regard he was mistaken. No such order was necessary. The application was filed just within the prescribed time.
20 In his application the first applicant also expressed a wish that the application be dealt with without an oral hearing. The Minister consented to this course and I therefore dispensed with an oral hearing.
21 The grounds of appeal are in the following terms (without alteration):
(1) That the Learned Federal Magistrate has failed to determine the actual harm to which the appellant is faced with, the appellant belongs to the Indian national Congress Party, in the province of Gujarat, India. The applicant is open to the serious harm as the appellant submitted in his statement of claim[.] The appellant was involved in the political party which does not matched the ideology of the present party, the appellant was subjected to serious harm, the applicant has undergone lot of persecution[.] This is a jurisdictional error, and a mistake of law.
(2) That the Appellants submitted the whole evidence of his being involved in the political activities, the applicant submitted the bundles of the evidence before the department, and RRT, but the evidence was not taken in to consideration which has resulted in the miscarriage of justice. The applicant has an arguable case, to which the applicant shall submit more evidence. The applicants evidence was ignored, if it was not ignored, the applicant, if the evidence is read, the applicant has an arguable case. The appellant made out a case which really requires the judicial inference of this honorable Court as to determine the danger of life being taken away.
(3) That the Respondents did not applied the proper law and procedure, this has resulted in the error of the law. The Learned FM only repatriated the decisions made by the Respondents, but failed to give their own verdict in accordance with the Federal Magistrate Court Rules.
22 The application was supported by an affidavit sworn by the first applicant. In it the first applicant complains that the federal magistrate
only passed an order without going in to the evidence of the applicant, and made his statement of decision under special leave to appeal. This is against the rules of the Federal Magistrate Court, the Learned FMC only repatriated the orders and statement of decision made by the Respondent, and specially the [tribunal].
23 He then proceeds to recapitulate his claims concerning his fear of harm in India.
24 No submissions were made in support of the application.
25 The application should be refused. The federal magistrate was entitled, indeed obliged, to dismiss the application. On any view it was bound to fail.
26 In the first place, it was not for the federal magistrate to determine whether or not the first applicant could suffer harm in India. As I indicated earlier, he had no jurisdiction to do so. That question was for the tribunal alone.
27 The reference to "bundles of evidence" in the draft notice of grounds of appeal is obscure. The Court Book presented to the federal magistrate contained only one item of evidence relating to the first applicant's claims and that was the statement he made in his application for a protection visa.
28 Secondly the first applicant may have had an arguable case before the tribunal but that is beside the point. The point is whether he had an arguable case before the federal magistrate. Without doubt he did not. That is because he was unable to show that the tribunal's decision was affected by jurisdictional error. His Honour referred to the remarks of the Full Court in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]. There, the Full Court noted that, in assessing the adequacy of the tribunal's reasons, it was necessary to bear in mind the fact that the tribunal had told the applicant that it was unable to find in his favour on the basis of the material it had been given and had invited him to provide additional information. The Full Court then referred to the applicant's outline of his case for protection, describing it as "short and vague", and to make the commonsense observation that the tribunal is not obliged to accept everything an applicant says at face value. It went on to say:
Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.
29 The applicants in this case were given the same warning and afforded the same opportunity. Here, as there, the outcome was inevitable.
30 Thirdly, while a denial of natural justice does amount to jurisdictional error, there was no denial here. Section 422B of the Migration Act provides that Division 4 of Part 7 of the Migration Act is taken to be an exhaustive statement of the natural justice hearing rule. At [21]-[34] of his reasons the federal magistrate explained why there had been no violation of that rule. His Honour was entirely correct. On the material before him there was no breach of the relevant provisions of Division 4 of Part 7.
31 For completeness I should say that the federal magistrate's decision on the question of fraud, though not apparently challenged, was also correct. There was simply no evidence before him to support such a finding. If the account the first applicant gave the tribunal was true (and I have no reason to think otherwise), he was, as his Honour said, poorly advised. The tribunal was not, however, "disabled" on that account "from the due discharge of its imperative statutory functions" (SZFDE at [51]). The process the tribunal followed was the natural consequence of the first applicant's conscious election not to accept the tribunal's invitation. Cf. Minister for Immigration and Citizenship v Lu (2010) 189 FCR 525 at [38].
32 Leave to appeal will generally only be granted where, amongst other things, there is sufficient doubt about the correctness of the decision below: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. There is no reason here to depart from the general rule, and I am in no such doubt. Indeed, I am well satisfied that the decision of the federal magistrate was right.