Applicant S344 of 2003 v Refugee Review Tribunal

[2003] FCA 1614

FEDERAL COURT OF AUSTRALIA

Applicant S344 of 2003 v Refugee Review Tribunal [2003] FCA 1614

APPLICANT S344 OF 2003 v REFUGEE REVIEW TRIBUNAL & ORS

N999 OF 2003

EMMETT J
4 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N999 OF 2003

BETWEEN:

APPLICANT S344 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

4 DECEMBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        the application be dismissed;

2.        the applicant pay the second 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	N999 OF 2003

BETWEEN:

APPLICANT S344 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE:

4 DECEMBER 2003

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. The applicant is an Indonesian national.  He entered Australia on 16 December 1990 as a visitor and was granted a temporary entry permit valid for one month.  On 20 September 1994, when the applicant was residing illegally in Australia, he sought refugee status by way of an application lodged with the Department of Immigration and Ethnic Affairs, as it was then called.  The delegate of the then Minister for Immigration and Ethnic Affairs, now the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), decided on 30 March 1995 that the applicant was not a refugee.  The applicant applied for review of that decision by the Refugee Review Tribunal (‘the Tribunal’) on 27 April 1995.  On 18 July 1996, the Tribunal found that the applicant is not a refugee within the meaning of the Refugees Convention and found that he was not entitled to a protection visa. 

2. The applicant subsequently became a party to a proceeding in the High Court.  On 25 November 2002, the High Court granted leave for a group of persons who were then represented by legal practitioners to file an application seeking prerogative relief in relation to the Tribunal’s decision.  On 20 June 2003, the applicant filed a draft order nisi in the High Court.  That matter was then remitted to this Court.

3. On 27 October 2003, I ordered the applicant to file and serve, no later than 24 November 2003, a statement of contentions of relevant facts and law and any affidavits upon which the applicant intends to rely at the hearing.  There has been no compliance with that direction. 

4. However, on 24 November 2003, the Court received a request for an extension of time.  The request stated that the applicant had been assigned an adviser under the legal advice scheme, namely Mr Viv Hooton.  The request stated that Mr Hooton ‘has only just received my Green Book’.  That indicates a misapprehension, since there is no practice of providing a ‘Green Book’ in relation to matters of this sort.  It may be that the Minister’s solicitors furnished certain documents to Mr Hooton. 

5. The applicant confirmed at the directions hearing today that he has seen Mr Hooton, who gave him a tape of the proceeding before the Tribunal.  The applicant said that the tape demonstrated that there was a mistake in interpretation.  However, he was unable to be specific as to the mistake.

6. The Minister asks that the application be dismissed for non compliance with my direction pursuant to O 10 r 7(2) of the Federal Court Rules. 

7. I have considered the Tribunal’s reasons for affirming the delegate’s decision to refuse a protection visa.  The claims made in the application relate to the applicant being engaged, some years before, to perform specific installations in a hotel.  He said that he did not have his own finances and entered into an agreement with a subsidiary of a large company, whereby the company provided funding and he provided expertise.  The applicant claimed that he was then pushed out of the arrangement by the subsidiary company’s accountant, in league with a jealous engineer working for the same company. 

8. The Tribunal found the applicant to be candid and direct in his response to questions and consistent in all the evidence he provided.  His emotional state appeared to the Tribunal to be consistent with that of a person who deeply fears serious harm.  The Tribunal was prepared to accept that the applicant was telling the truth about what had happened to him and, in effect, what would happen to him if the company and its militant contacts caught up with him.

9. The Tribunal was prepared to accept that a person in the applicant’s position would be unable to avail himself of the protection of the State in relation to such a serious matter.  However, the Tribunal considered that the threat that gave rise to the applicant’s fear did not relate to his religion, race or any other Convention related reason.  The Tribunal observed that it might be one thing to say that the persons who started the trouble, namely the accountant and the engineer, are different from the applicant in one way or another.  However, it is quite another matter to say that they started the trouble because the applicant was either Chinese or non-Muslim or both.  The engineer is both Chinese and non-Muslim and, even if he is not, like the applicant, Christian, there was no basis for concluding that his action was based on either the ethnicity or the religion of the applicant.  The Tribunal considered that the source of any persecution  by the engineer or the accountant or the company, was not a Convention reason but purely mercenary. 

10. There is nothing on the face of the reasons to indicate any error on the part of the Tribunal and the applicant has produced no material to indicate that there is any basis upon which the Court could interfere with the decision of the Tribunal.

11. In the circumstances, I propose to accede to the Minister’s application.  Accordingly, I propose to order that the application be dismissed and that the applicant pay the Minister’s costs. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             22 January 2004

Counsel for the Applicant:	The applicant appeared in person with the assistance of an interpreter
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	4 December 2003
Date of Judgment:	4 December 2003