Applicant S1815 of 2003 v Refugee Review Tribunal

[2006] FCA 1202

FEDERAL COURT OF AUSTRALIA

Applicant S1815 of 2003 v Refugee Review Tribunal [2006] FCA 1202

MIGRATION – application for order nisi – no breach of rules of procedural fairness or other arguable ground – application dismissed

Migration Act 1958 (Cth)

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 related
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 cited
Randhawa v Ministerfor Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 referred to

APPLICANT S1815 OF 2003 v REFUGEE REVIEW TRIBUNAL, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND COMMONWEALTH OF AUSTRALIA
NSD 2410 OF 2003

GYLES J
29 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2410 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT S1815 OF 2003
Applicant

AND:

REFUGEE REVIEW TRIBUNAL
First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Second Respondent

COMMONWEALTH OF AUSTRALIA
Third Respondent

JUDGE:	GYLES J
DATE OF ORDER:	29 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an order nisi be dismissed. 

2.The applicant pay the costs of the respondents.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2410 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT S1815 OF 2003
Applicant

AND:

REFUGEE REVIEW TRIBUNAL
First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Second Respondent

COMMONWEALTH OF AUSTRALIA
Third Respondent

JUDGE:	GYLES J
DATE:	29 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this case I am in the rather extraordinary position of hearing in August 2006 a judicial review application in relation to a decision of the Refugee Review Tribunal (the Tribunal) made on 31 May 1999 concerning an application for a protection visa made on 13 August 1997.  The explanation lies in the fact that the prosecutor was permitted to join a class action in the High Court of Australia in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601.

2. On 25 November 2002, the High Court granted leave to a group of persons including the prosecutor to file an application seeking an order nisi.  The draft order nisi, which was attached to the affidavit of a solicitor who acted for the applicant at that time, was directed to both the Minister and the Tribunal.  However, the ground isolated in the draft order nisi attacked the decision of the Tribunal to affirm the refusal of the delegate of the Minister to grant the applicant a protection visa.  The draft order nisi alleged that the decision was invalid as the Tribunal failed to afford the applicant/prosecutor natural justice because the applicant/prosecutor had not been given an opportunity (or at least an adequate opportunity) to prepare and present favourable material at hearing or an adequate opportunity to respond to unfavourable material.

3. This matter, along with many others, was remitted to this Court by the High Court in 2003.  In December 2004, the applicant provided submissions to this Court which included five so called grounds in support of an argument as to why an order nisi should be issued.  The first ground was that the Refugee Review Tribunal erred in law in failing to weigh the credibility of the applicant’s evidence correctly according to law.  It is apparent from the oral submissions of the applicant today that that is the burden of his complaint.  He has referred to various pieces of evidence which he says were before the Tribunal but which was not properly weighed or considered by it.  That ground is doomed to failure.  It has not been demonstrated that the Tribunal failed to have regard to any claim of a significant nature by the applicant.  The assessment of the credibility of the applicant and the evidence presented by him was a matter for the Tribunal.  No arguable error of law has been raised in relation to that matter.  The second, third and fourth grounds refer to sections of the Act which came into force after the Tribunal’s decision, albeit, in the case of s 424A, the day after.  Such complaints as are made about notification of the handing down of the decision would not lead to its setting aside, even if correct.

4. The fifth ground was that the Tribunal breached the rules of procedural fairness.  That ground matches at least a part of the ground stated in the original application to the High Court.  The argument in favour of it, incorporating the detail of other grounds and liberally construed, amounted to a complaint that the Tribunal acted upon adverse material which was not put to the applicant for him to answer, or at least not sufficiently to deal with it adequately.  No examples were given in relation to that submission, although a reference was made to tapes of the hearing before the Tribunal and an extract from the tapes was attached to the submissions.  That extract does not bear upon this topic. 

5. The applicant handed up some written submissions today which do not, in substance, go beyond those earlier submissions and, indeed, largely reproduce them.  He makes the point there, as he did orally, that as he is not a lawyer it is very difficult for him to put a proper argument to the Court.  He again refers to the existence of tapes and sought to tender a two page rather than a one page extract from the transcript.  It was objected to and I rejected it.  The applicant has said that the tapes are in Griffith although, of course, the Urdu portion of them will not be decipherable or understandable.  I am informed, as a result of inquiries made this morning, that the Tribunal may have the tapes in storage off site.  I have considered whether or not I should adjourn the matter further to enable those tapes to be produced and played.  However, it seems to me that that would not be an appropriate course to take.  That would be, at the very most, a fishing expedition to see if there is something which would assist the applicant’s case rather than bearing out an argument which has been properly presented.

6. At no stage, either whilst he was represented or later, has the applicant been able to point to any material in the very detailed reasoning of the Tribunal that is based upon something of which he was not aware.  It is submitted by counsel for the Minister that the Tribunal has in its reasons indicated in various places that adverse material was put to the applicant, and that is correct.  I cannot, of course, conclude that every piece of adverse material was put to the applicant but it is clear that a great deal of it was and no particulars have been given of anything which was not.  It is very likely, it seems to me, that in any event the substance and thrust of the adverse material was put to him (see NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241, particularly at [25]).

7. The gravamen of the claim on behalf of the applicant, who is from Pakistan, was based upon his membership of the party known as the Pakistan People’s Party (PPP).  This party was one of the principal political parties of that country at the relevant time and the gist of the country information, (which it appears from the reasons of the Tribunal was put to the applicant,) was to the effect that PPP members would not, generally speaking, be persecuted for taking , an active interest in politics. 

8. It is also submitted on behalf of the Minister that the Tribunal found, as one separate limb of its reasoning, that the applicant could relocate to another part of Pakistan, such as Karachi, where his father resided and he claimed to have resided without incident.  Based upon the principles in Randhawa v Ministerfor Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, the Tribunal determined it would not be unreasonable to expect the applicant to relocate to an area of Pakistan other than his local district or the Punjab if he retained a subjective fear of harm in that place. There seems to me to be substance in the argument that that finding was based upon material which had been identified as having been put to the applicant.

9. In my opinion, there is not even an arguable case made by the applicant for prerogative relief of the kind sought and there will be no order nisi or relief granted.  I would only add that, as I said in opening, it is extraordinary that a matter such as this should be dealt with after such a long delay.  It is quite unsatisfactory.  It is not part of my function to go into the reasons for that delay, manifold as they are, but they plainly involve delay on the part of a number of public authorities, perhaps including the Court.  I am not sure what scope there is for some reconsideration at ministerial level of the position of persons such as this who have been part of the Australian community for something like nine years.  It is not something I can make any order about.

10. I refuse to grant an order nisi.  The application is dismissed.  The applicant is to pay the respondents’ costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:        1 September 2006

The Applicant appeared in person
Counsel for the Second Respondent:	Ms S McNaughton
Solicitor for the First, Second and Third Respondents:	Australian Government Solicitor
Date of Hearing:	29 August 2006
Date of Judgment:	29 August 2006