Applicant S291 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs
[2006] FCA 250
•23 MARCH 2006
FEDERAL COURT OF AUSTRALIA
Applicant S291 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 250
APPLICANT S291 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND ANOR
NSD 2446 OF 2003ALLSOP J
23 MARCH 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2446 of 2003
BETWEEN:
APPLICANT S291 OF 2003
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTREFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTJUDGE:
ALLSOP J
DATE OF ORDER:
23 MARCH 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The Minister for Immigration and Multicultural and Indigenous Affairs be joined as a respondent to the proceeding as first respondent.
2.The matter be listed for directions on a date to be fixed.
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 2446 of 2003
BETWEEN:
APPLICANT S291 OF 2003
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTREFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT
JUDGE:
ALLSOP J
DATE:
23 MARCH 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
These are reasons dealing with the further conduct of the remitted application under s 75(v) of the Constitution after consideration of the papers lodged by and on behalf of the applicant.
The applicant is a citizen of Libya. On 28 October 1996, the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). On 9 December 1997, a delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) refused the application. On 23 December 1997, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the decision. On 7 January 1999, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
The applicants commenced a proceeding in the High Court of Australia by filing a draft order nisi on 13 June 2003, together with an affidavit sworn the day before. Thus, the application seeks an order by the High Court that would require the respondents to show cause why writs of prohibition, certiorari, mandamus or an injunction should not issue to them in respect of the Tribunal’s decision.
In his affidavit, the applicant stated that he was ‘a member of the Lie class action’, that he wished to make an out of time application.
The ground upon which relief was claimed in the draft order nisi was as follows:
‘The First Respondent failed to afford the Applicant/Prosecutor natural justice because the Applicant/Prosecutor had not been given an opportunity or an adequate opportunity to prepare and present favourable material at hearing or an adequate opportunity to respond to unfavourable material.’
No further particulars were provided.
The applicant alleges in the affidavit ‘I believe that the Refugee Review Tribunal (RRT) failed to adequately consider country information in my case’. There is no elaboration, and no further allegations are made in the affidavit.
The allegations contained in the draft order nisi would, if accepted, constitute grounds for relief under both limbs of the ‘Muin and Lie’ ratio decidendi.
The applicant is a devout Muslim who claims to fear persecution by the Libyan regime for religious reasons. He claimed that individuals who go to dawn prayer in Libya were suspected of being Muslim fundamentalists and could be arrested and that every devout Muslim was in conflict with the regime. He said that security clearances were required for Muslims to go on pilgrimages and that these were not always granted.
The applicant was appointed as a staff member of the Garyounis University at the end of 1994 and claims that his application for a scholarship in 1994 to travel overseas to undertake post-graduate study was not successful because of his religious beliefs. The applicant claimed that his participation and ability to attend staff meetings was restricted by other members of the department and that the university administration did not respond to his complaints about this treatment. He claims to have been discriminated against on many occasions because of his religion.
The applicant claims to have been followed by security forces and detained for questioning and interrogation, involving a beating, on two occasions for several hours each time. The applicant claims to have been forced to sign an undertaking that he would not go to the mosque or see certain people. The applicant claimed that various relatives and colleagues from the university had been detained and arrested because of their religious practices.
The applicant claimed that he had been issued a security clearance which enabled him to leave Libya by concealing the information that he worked at the university. The applicant claimed to have done this so that the security authorities would not find out about his religion related problems at the university.
In June 1997, the applicant left Australia on a bridging visa to visit his ill mother in Egypt. While he was away, he learned that his father was also ill in Libya and travelled there to see him by bus. He claimed that a travel agent had ‘fixed things’ so that his passport was stamped by the border officials and he was able to enter Libya without incident. He claimed to have left Libya at night, when border control officials were ‘less diligent’ with papers provided by contacts of his brother.
The applicant claims to fear imprisonment and death if he were to return to Libya and claims that he would be questioned and interrogated by Libyan authorities in relation to his political and religious connections because of his absence from that country.
The Tribunal accepted the applicant’s claims to have been excluded at university staff meetings, to have not been awarded a scholarship and that he may have been followed on a number of occasions, detained, questioned and beaten. It also accepted the applicant’s reasons for his trip to Libya in 1997.
However, the Tribunal found that the evidence put forth by the applicant did not support the conclusion that the applicant’s exclusion from staff meetings or failure to be awarded a scholarship were because of his religious beliefs. The Tribunal considered that there were many possible reasons that could explain those events. Notwithstanding those conclusions, the Tribunal held that the events in relation to the university were of the type or severity which amounts to persecution as it was the type of disappointment that people routinely experience in the course of their working life.
The Tribunal recounted country information confirming government crackdowns on devout Muslim ‘activists’, including arrests. The Tribunal accepted that devout Muslims are persecuted in Libya and that being followed and questioned as per the applicant’s claims was consistent with the country information detailing the surveillance to which individuals could be subjected in Libya. It accepted that the applicant’s strong commitment to Islam could have led to the questioning which occurred. However, as he was soon released, the Tribunal did not accept that the applicant was a person who the authorities suspected of involvement with Islamic opposition and did not accept that the authorities were looking for him.
The Tribunal concluded that there was insufficient information to form a conclusion in relation to the applicant’s claims that his relatives and colleagues had been arrested for religious reasons. In the background of a much shorted period of detention experienced by the applicant and the context of the applicant’s evidence as a whole, the Tribunal was not satisfied that the treatment of his relatives and colleagues since the applicant left Libya could lead the applicant to face harm upon return on the basis of religion.
The Tribunal concluded that even if the applicant was questioned by authorities upon arrival in Libya about his period away from that country, being asked about a period outside the country did not amount to persecution within the meaning of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (the "Refugees Convention") and would not, as the applicant claimed to fear, be followed by detention, imprisonment or worse.
The Tribunal was not satisfied that there was a real chance that the applicant could face harm amounting to persecution because of his religion if he were to return to Libya.
The proceeding commenced in the High Court was subsequently remitted to the Federal Court of Australia along with over 1, 000 other proceedings commenced by persons who had nominally been parties to the Muin and Lie v Refugee Review Tribunal [2002] HCA 30 class action. In those other proceedings, similar relief was claimed in respect of other decisions of the Tribunal refusing the grant of protection visas.
On 12 November 2004, the New South Wales District Registrar wrote to the applicant saying, relevantly, as follows:
‘As a result of an order by the High Court, your application was transferred to the Federal Court of Australia. The Federal Court must consider whether there is an arguable case for the Court to make an Order nisi. If the Court decides that there is no arguable case, your application for an Order nisi will be refused.
The Court proposes to consider whether there is an arguable case on the basis of the written material that you have given to the Court and without any oral hearing. The lawyer for the Minister will not be giving any information to the Court. Before the Court makes a decision you may make such written submissions in the English language as you wish o the question of whether the Court should make an Order nisi. Any submissions must be lodged with the Registry of the Court no later than 10 December 2004.’
The letter was addressed to the applicant at the address shown in the draft order nisi.
Submissions have been provided to the Court by counsel which contain detailed submissions on the issue of asserted denial of procedural fairness. These submissions would need, in due course, to be supported by evidence. Nevertheless, on their face they are not hopeless, and raise issues which may be considered arguable.
The application and supporting affidavit do not show an arguable case for the grant of the final relief claimed. This material no more than pleads the right to such relief and does not contain evidence of facts that are capable of supporting the grant of such relief. This material does not disclose an arguable case for the proposition that the Tribunal fell into jurisdictional error in making its decision. However, counsel’s submissions do.
In the light of the material put on by counsel, I propose to list the application for directions. At that directions hearing, the Minister may address me on the further conduct of this matter including the operation of Order 51A rule 5(1). That rule provides that, where an application for an Order nisi is remitted by the High Court to the Federal Court, the Federal Court will, at the same time, hear the parties on whether, if the Order nisi were made, it should be made absolute. Rule 5(2) qualifies rule 5(1) and provides that, in a particular case, the Court may order that rule 5(1) does not apply. At the moment I would not make an order under rule 5(2).
The Minister should obtain access to the Court file to copy counsel’s submissions and should fix a date for a directions hearing with my associate in consultation, if possible, with the applicant or the counsel who drafted the submissions, Ms Tibbey of 8th Floor Wentworth Chambers.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate:
Dated: 23 March 2006
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