Applicant S265/2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1488

FEDERAL COURT OF AUSTRALIA

Applicant S265/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1488

MIGRATION – Refugee Review Tribunal – application for order nisi – no issue of principle – application dismissed

APPLICANT S265/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1067 OF 2003

CONTI J
20 OCTOBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1067 OF 2003

BETWEEN:

APPLICANT S265/2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

CONTI J

DATE OF ORDER:

20 OCTOBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for order nisi be dismissed.

2.The applicant pay the first respondent’s costs of the application.

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 1067 OF 2003

BETWEEN:

APPLICANT S265/2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	CONTI J
DATE:	20 OCTOBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Pakistan who arrived in Australia on 24 January 1996.  On 22 April 1996 the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). A decision was made by a Ministerial delegate to reject that application on 26 July 1996 which decision was affirmed by the Refugee Review Tribunal (‘the Tribunal’) on 25 February 1998. The applicant sought review of that decision in the Federal Court and on 14 August 1998 the Court ordered by consent that the matter be remitted to the Tribunal to be determined according to law. On 28 April 1999 the Tribunal reaffirmed the Ministerial delegate’s decision to refuse the applicant a protection visa.

2. The applicant subsequently applied for review of that second decision of the Tribunal in the Federal Court.  His Honour, Justice Whitlam, dismissed that application at first instance on 20 August 1999 (Ahmed v Minister for Immigration & Multicultural Affairs [1999] FCA 1412), which judgment was upheld unanimously by the Full Federal Court on 18 February 2000 (Ahmed v Minister for Immigration & Multicultural Affairs [1999] FCA 123).

3. The applicant then apparently became a party to the proceedings in the High Court of Australia generally referred to as Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601 (‘Muin and Lie’).  On 4 June 2003 the applicant filed in the High Court of Australia a draft order nisi seeking constitutional writ relief in respect of the second decision of the Tribunal, together with an affidavit in support sworn by his former legal representative.  Pursuant to orders made by Gaudron J, the proceedings were remitted to this Court.

4. By correspondence dated 12 November 2004, the District Registrar of the Court advised the applicant that the Court proposed to consider whether there is an arguable case for the making of an order nisi on the basis of the written material before the court.  The applicant was invited to file written submissions, and did so on 22 December 2004.

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

6. The draft order nisi raises the single ground that the Tribunal failed to accord the applicant procedural fairness.  The applicant’s written submissions raise the following grounds:

   • the applicant was denied procedural fairness by the Tribunal because the Tribunal did not provide to the applicant particulars of information that it relied upon in reaching its decision adverse to the applicant;
   • the applicant was denied procedural fairness by the Tribunal because the Tribunal would not allow the applicant to respond to any adverse information upon which the Tribunal based its decision; and
   • the Tribunal erred in applying the applicable law, or failed to apply it to the facts as found by it, and as such, fell into jurisdictional error.

   No particulars were furnished in respect of the sole ground enumerated in the draft order nisi however further statements in support of those grounds were made by the applicant in his written submissions.

7. The Tribunal’s second decision, which is the subject of the draft order nisi, has already been the subject of detailed review by a single Judge of this Court and by the Full Federal Court.  Although the applicant is not now legally represented, he was represented by counsel before Whitlam J and by senior counsel before the Full Court. 

8. Both before Whitlam J and before the Full Court the applicant contended that the Tribunal had erred in law by failing to apply the ‘real chance’ test (see Chan v Minister for Imigration & Ethnic Affairs (1990) 169 CLR 379) when assessing whether the Pakistan government would provide effective protection to the appellant against further prosecution from a splinter-faction of a political party of which the applicant claimed to be a member. At both instances this contention was firmly rejected. It appears from the applicant’s written submissions that he is now attempting to re-assert that the Tribunal failed to correctly apply the ‘real chance’ test. The applicant also contends that the Tribunal erred in its application of that test to the facts as found by the Tribunal because it failed to consider the effects of those facts ‘cumulatively’.

9. After careful analysis of the Tribunal’s reasons for decision, the Full Federal Court concluded that the Tribunal had ‘made a clear finding that the applicant would receive effective governmental protection from persecution by the [splinter-group]’.  That, in turn, was the basis for its finding that ‘any fear of persecution which the applicant may have held, was not objectively well-founded’ (at [23]). 

10. Furthermore, a plain reading of the Tribunal’s reasons for decision indicates that the Tribunal did not fail to take into account the totality of the facts as found, or to consider the effect of those facts ‘cumulatively’ in reaching its decision that the applicant did not have a well-founded fear of persecution upon his return to Pakistan.  As is clear from the Full Court’s reasons for judgment, the Tribunal made a clear finding that the Pakistan government was able and willing to provide effective protection to the applicant from persecution from members of the splinter-group of the applicant’s party.  As was made clear by McHugh J in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 142 ALR 331 at 354:

    ‘The Convention is primarily concerned to protect those racial, religious, national, political or social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return.  Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution.’ 

    I would add that the Tribunal rejected the applicant’s evidence that he had suffered persecution at the hands of the Pakistan government and police.  Accordingly, this ground does not disclose any basis for the constitutional writ relief sought.

11. In respect of the ground that the Tribunal failed to observe the requirements of procedural fairness, insofar as it was alleged to have failed to provide the applicant with notice or particularisation of information that was the reason, or part of the reason for the Tribunal reaching a decision adverse to the applicant, and moreover that it failed to allow the applicant time to respond, so much is inconsistent with the Tribunal’s record of decision.  The Tribunal records at page 15 of its reasons for decision that at the conclusion of the hearing the applicant’s representative requested the member to advise her in writing of concerns that the member had with the applicant’s credibility, and to provide her with copies of any material relied upon by the Tribunal which the member had considered adverse to the applicant’s case.  So much was done by letter dated 2 March 1999 and the applicant provided a submission in response dated 29 March 1999 which was referred to at various stages in the Tribunal’s reasons.  In any event the applicant has not provided any relevant particulars or details about this claim at all and I do not consider that it provides adequate basis for the relief sought.

12. The material before me does not disclose any basis on which one could conclude there is at least an arguable case for the grant of constitutional writ relief. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:            20 October 2005

The applicant was self-represented
Solicitor for the Respondent:	Australian Government Solicitor
Date of Judgment:	20 October 2005