Case: Decor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397
Outcome: applied
exercising the discretion conferred by s 24(1A) of the 1976 Act to grant leave to appeal, it may be accepted that that provision confers on the court " an unfettered discretion " in " unqualified terms ": Decor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 399 per Sheppard, Burchett and Heerey JJ. Considerations relevant when deciding whether leave to appeal should be granted are: whether in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and whether substantial injustice would result if leave were refused supposing the decision were wrong. In the present proceeding it is not considered that the decision of the Federal Magistrate is attendant with sufficient doubt to warrant leave being granted. Nor is it considered that the Applicant would suffer substantial injustice. His application for a protection visa has been considered on its merits by both a delegate of the Minister and by the Tribunal. His application filed with the Federal Magistrates Court has been carefully considered and no legal error discerned. No injustice is exposed in such circumstances. The Federal Magistrate, in his reasons for decision, recounted the facts relevant to the Applicant's claim for a protection visa. Those reasons record that " [n]o supporting evidence " for the claims being advanced by the Applicant was provided to the Department and also record the rejection of the claim. Those reasons further record that the Applicant was subsequently invited to attend a hearing before the Refugee Review Tribunal but that he declined that invitation. Express reference is made by the Federal Magistrate to some of the findings made by that Tribunal. Albeit not set forth expressly in his reason for decision, it is relevant to note that the Tribunal further stated: [36] The applicant did not attend the Tribunal hearing. The applicant only made the briefest of claims. The applicant claims he belongs to a minority group in Pakistan, the 'Mohanjir' community who are Muslims by religion. Without further information from the applicant I am unable to accept that he belongs to the 'Mohanjir' community. Without further information from the applicant I am unable to be satisfied that he and his family have been persecuted by the majority community in Pakistan for several years. ... [37] I am required to consider the situation if the applicant, a Pakistani citizen from Sialkot, were to return to Pakistan now or within a reasonably foreseeable future. ... But the independent evidence before me ... does not suggest that the applicant would not receive the protection of the Pakistani authorities or that such protection would be ineffective, if the applicant were to be harmed. Without further information from the applicant I am unable to be satisfied that if he returns to Pakistan he will be killed, harmed or persecuted for a Convention related reason. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. [38] I do not accept there is a real chance the applicant will suffer harm now or in the foreseeable future if he were to return to Pakistan and I am not satisfied the applicant has a well-founded fear of persecution for a Convention related reason. Given the paucity of the material submitted in support of his claim and the paucity of the material apparently available to the Tribunal, and the decision of the now Applicant not to accept the invitation extended to him to attend a hearing before the Tribunal, these conclusions were perhaps not unexpected. The reasons for decision of the Federal Magistrate then outline the manner in which he approached his task. The Federal Magistrate observed that " the applicant's original application made unparticularised contentions of ' gross violations of the Regulations and the Act '...". An amended application was apparently filed from which the Federal Magistrate discerned " four essential points ".