Applicant S244/2003 v Refugee Review Tribunal

[2005] FCA 1226

FEDERAL COURT OF AUSTRALIA

Applicant S244/2003 v Refugee Review Tribunal [2005] FCA 1226

APPLICANT S244/2003 v REFUGEE REVIEW TRIBUNAL & MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 2752 of 2003

SACKVILLE J
1 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2752 OF 2003

BETWEEN:	APPLICANT S244/2003 APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	1 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an order nisi be dismissed.

2.The applicant pay the respondent’s costs.

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	N 2752 OF 2003

BETWEEN:	APPLICANT S244/2003 APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT
JUDGE:	SACKVILLE J
DATE:	1 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The High Court has remitted to this Court an application for an order nisi requiring the respondents to show cause why constitutional writs should not be not be issued in respect of a decision of the Refugee Review Tribunal (‘RRT’) handed down on 9 January 2001.  The RRT affirmed a decision of a delegate of the Minister refusing the applicant, a citizen of the Philippines, a protection visa. 

2. The applicant has provided written submissions in support of her application for an order nisi.  In those written submissions, which have presumably been prepared with the assistance of a person with legal training, the applicant seeks the substitution of the Minister for Immigration and Multicultural and Indigenous Affairs for the second respondent (the Secretary of the Department) and the removal of the third respondent (the Commonwealth).  I shall proceed on the basis that those amendments to the application have been made.

3. I propose to deal with this application on the papers.

4. It is important to appreciate that the RRT wrote to the applicant advising her that it had considered all of the papers relating to her application but was unable to make a decision in her favour on that information alone.  The applicant was advised that she was entitled to attend the hearing of the RRT in order to give oral evidence in support of her claims. 

5. The applicant chose not to reply to this letter and did not attend the RRT hearing.  The applicant does not suggest in her written submissions that the RRT failed to follow the appropriate procedures.  Nor does the applicant suggest that she did not receive due notification of the hearing.

6. The applicant’s complaint appears to be that the RRT had acted upon country information in its possession of which she was unaware.  She says that procedural fairness required the RRT to give her a reasonable opportunity to answer any information in its possession.  She was therefore denied (so she says) procedural fairness.

7. The very point of the RRT inviting the applicant to attend a hearing was to give her the opportunity to give oral evidence and to answer questions put to her by the RRT.  As the RRT said in its reasons, it would have wished to question the applicant about her claims that she had been threatened by the New People’s Army.  The RRT also wished to question her as to whether she could easily move to another region of the Philippines where there would be no threat of persecution.  As the RRT pointed out, by declining to attend the hearing, the RRT was not able to explore relevant aspects of her claim with her.  Doubtless the RRT would have wished to put to the applicant among other things, the substance of any relevant country information.

8. In these circumstances, the applicant has not made out an arguable case that she was denied procedural fairness by the RRT.  The application for an order nisi must be dismissed, with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             

Date of judgment: 1 September 2005