Applicant S169 of 2003 v Minister for Immigration & Citizenship & Anor

[2007] HCATrans 432

[2007] HCATrans 432

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S148 of 2007

B e t w e e n -

APPLICANT S169 OF 2003

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Summons for reinstatement

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 13 AUGUST 2007, AT 9.50 AM

Copyright in the High Court of Australia

APPLICANT S169 appeared in person.

MR M.A. WIGNEY:   May it please the Court, I appear for the first respondent.  (instructed by Clayton Utz)

ABDUR RAUF affirmed as interpreter:

HIS HONOUR:   The Registrar has received notice of a submitting appearance from the second respondent.  Mr Interpreter, the gentleman next to you is the applicant?

THE INTERPRETER:   Yes, your Honour.

HIS HONOUR:   Could you tell him that I have read all the documents he has filed and that the first respondent has filed.

THE INTERPRETER:   Right, your Honour.

HIS HONOUR:   Is there anything he would wish to add orally to what has been put in writing?

APPLICANT S169 (through interpreter):   Your Honour, what I have written, that is sufficient, but I just want to add that the letter I was expecting from RRT I never received it, so I just want to go back to RRT for my hearing.

HIS HONOUR:   Yes, thank you.  For the record I should note that among the material filed is an affidavit of the applicant and it was filed on 21 May 2007 and I will treat that as having been read.  Mr Wigney, you do not object to that?

MR WIGNEY:   No, your Honour.

HIS HONOUR:   Very well.  Nothing further the applicant wishes to say?

APPLICANT S169 (through interpreter):   No, your Honour.

HIS HONOUR:   Very well.  I need not trouble you, Mr Wigney.

This is an application for reinstatement filed on 21 May 2007 of an application for special leave to appeal from an order made by Justice Tracey in the Federal Court of Australia dismissing an appeal against an order by Federal Magistrate Barnes who dismissed an application for judicial review of the decision by the Refugee Review Tribunal.  The special leave application was deemed to be dismissed because of a failure to file a draft notice of appeal within the time specified by rule 41.10 of the High Court Rules.

The applicant, who is a citizen of Pakistan, claims to have a well‑founded fear of persecution by the Taliban.  After an application for a visa to the Minister had been dismissed by a delegate of the Minister the applicant applied to the Refugee Review Tribunal.  The Tribunal invited the applicant to a hearing.  The applicant did not attend the hearing and did not contact the Tribunal and the Tribunal thereupon proceeded to make a decision on the material before it.

The Tribunal noted that the claims made by the applicant raised questions it would have wanted answered by him had he attended the hearing.  In the result the Tribunal said it was unable to be satisfied on the evidence that the applicant had a well-founded fear of persecution.  On 6 May 2003 the applicant filed an application in this Court for orders nisi for constitutional writs.  That application was remitted to the Federal Court on 25 August 2003 and then transferred to the Federal Magistrates Court on 5 August 2005.

Among the grounds stated in the relevant documents were that there had been an excess of jurisdiction, that the conduct of the Tribunal’s hearing had led to an apprehension of bias and that the applicant did not receive an invitation letter.  The applicant suggested that the Tribunal may have sent the invitation to his former address despite the fact that he had given notification of his actual address.

Federal Magistrate Barnes found nothing in the materials filed by the applicant capable of constituting an arguable ground of review or an arguable ground of jurisdictional error and for those reasons she dismissed the application for judicial review.  Justice Tracey in considering the appeal from Federal Magistrate Barnes’ orders identified two specific issues as being raised by the applicant.  One was that the Tribunal did not consider independent country information.  The second was the failure of the Tribunal to invite the applicant to the hearing as required by the Migration Act 1958 (Cth).

The applicant appeared in person before Justice Tracey with the assistance of an interpreter.  Justice Tracey drew attention to the inconsistency between the applicant’s complaint that the Tribunal had not invited him to attend a hearing and his statement in an affidavit of 6 May 2003 that he had received the invitation but had been advised by his migration agent not to attend.  The applicant was, according to Justice Tracey, unable to offer any explanation for the inconsistency beyond saying that he had not noticed the relevant passage in the affidavit before he affirmed it and that he did not speak English well at the time.

For the following reasons I would dismiss the application.  First, the application for special leave to appeal contains no properly defined grounds and it would merit being struck out for that reason alone.  Secondly, the conclusion of Justice Tracey that there was no appealable error on the part of the Federal Magistrates Court appears to be plainly correct.  Thirdly, in his affidavit in this Court in support of the application for reinstatement the applicant refers to the conduct of his migration agent and appears to contend that that migration agent advised him not to attend any hearing before the delegate of the first respondent.  This is not a piece of evidence which goes to any jurisdictional error on the part of the Tribunal.  Even if it did, it was not a matter that was ventilated in the courts below.

The reason Justice Tracey gave for dealing with the contention of the migration agent has been summarised in what I have said above.  In short, it would be futile to reinstate the application for special leave and for that reason I dismiss the summons with costs.

AT 10.00 AM THE MATTER WAS CONCLUDED