Applicant S450 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1766

FEDERAL COURT OF AUSTRALIA

Applicant S450 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1766

APPLICANT S450 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 595 of 2004

EMMETT J
2 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 595 OF 2004

BETWEEN:

APPLICANT S450 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

2 NOVEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        An order nisi be refused. 

2.        Order 51A rule 5(1) of the Federal Court Rules not apply. 

3.        The applicant pay the Minister’s costs in the sum of $1,000.

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 595 OF 2004

BETWEEN:

APPLICANT S450 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	2 NOVEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant was born in Nepal.  He entered Australia under a student visa issued in New Delhi, India on 25 November 1999.  That visa was valid until 31 January 2002.  The applicant applied for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). A delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a visa. The applicant then sought review of that decision by the Refugee Review Tribunal (‘the Tribunal’). On 17 October 2002, the Tribunal affirmed the decision not to grant a protection visa.

2. On 5 December 2002, the applicant applied to this Court for orders pursuant to s 39B of the Judiciary Act 1903 (Cth). On 23 May 2003, Hill J ordered that the application be dismissed. His Honour recorded that the applicant’s claim to have a well founded fear of being persecuted in Nepal for a Convention reason was accepted by the Tribunal. However, the Tribunal rejected the applicant’s claim to a protection visa on the basis that he had the right to enter and reside in India. The Tribunal found that India was a country in which the country had effective protection and was not a country in respect of which he likewise had a well founded fear of persecution for a Convention reason. The Tribunal discussed a number of cases concerning the interpretation of s 36(3) of the Act.

3. Section 36(3) provides that Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself of a right to enter and reside in any country apart from Australia. Under s 36(4) however, if an applicant has a well founded fear of being persecuted in that other country for a Convention reason then subsection 36(3) does not apply. The applicant accepted that as a citizen of Nepal he was entitled to live in India. His case however was that he would not be safe in India because Nepalese Maoists would find him there and kill him.

4. His Honour considered that the Tribunal summarised all or substantially all of the various documents or reports submitted by the applicant as well as other country material which it set out in its reasons.  The Tribunal concluded from that material that it was not satisfied that citizens of Nepal living in India were targeted either by Nepalese Maoists or their counterparts in India.  That was a finding of fact.  Hill J concluded that the Tribunal could not be said to have mis-stated the material submitted to it.  His Honour concluded therefore that the Tribunal had not made any jurisdictional error in reaching its conclusion.  Accordingly, s 474 would preclude any relief in respect of the decision of the Tribunal. 

5. On 19 June 2003, the applicant applied for an extension of time to file and serve notice of appeal from the orders of Hill J.  On 16 July 2003, Branson J dismissed that application.  Her Honour concluded that the matters relied on by the applicant in his affidavit in support of the application constituted special reasons within the meaning of O 52 r 15 of the Federal Court Rules.  Her Honour observed that while she had a discretion to grant the application for an extension of time, it was necessary for her to consider whether it would be appropriate in all the circumstances to grant the application.  Her Honour observed that an important factor to be taken into account in determining whether the applicant should be granted the extension of time is the prima facie strength of the proposed ground of appeal set out in the proposed notice of appeal.

6. Her Honour considered that the draft notice of appeal, although it contained a purported ground of appeal was in fact no more than a restatement of the applicant’s claim that his life would be in danger if he was required to return to India.  Her Honour considered the reasons of Hill J indicated that his Honour had given a thorough review to the material before the Tribunal.  Branson J concluded that the applicant was unable to demonstrate any arguable error in the judgment of Hill J.  Her Honour considered that no useful purpose would be served by granting the extension of time.

7. The submissions made by the applicant to Branson J confirmed that what in truth he sought was an opportunity to argue again the merits of his original application for a protection visa.  The applicant then commenced a proceeding in the High Court of Australia on 27 August 2003.  On that day he filed a draft order nisi and affidavit seeking constitutional writ relief in respect of the Tribunal’s decision.  On 16 February 2004 Hayden J ordered that the further proceeding in that application be remitted to the Federal Court of Australia.  His Honour directed that the further proceeding include any application for the enlargement of time necessary for the commencement of the proceeding.

8. The application for an order nisi is now before me.  After several false starts because of a misunderstanding concerning an interpreter, I have now heard submissions from the applicant.  His submissions were in writing and they confirm that he seeks to reventilate the merits of the decision of the Tribunal.  While the grounds stated in the draft order nisi and his affidavit normally constitute possible grounds of review, nothing of substance is contained within the affidavit and nothing of substance was said by the applicant that would justify interference with the Tribunal’s decision. 

9. In the draft order nisi the grounds are as follows:

   ‘(A)a breach of the rules of natural justice occurred in connection with the making of the Decision.

   (B)The decision involved an error of law, whether or not the error appears on the record of the Decision.

   (C)Procedures that were required by law to be observed in connection with the making of the Decision were not observed.

   (D)The decision exceeds the constitutional limits of legislative power imposed by the Commonwealth Constitution.

   (E)The making of the Decision was an improper exercise of the power conferred by the [Act].

   (F)There was no evidence or other material to justify the making of the Decision.

   (G)The decision was otherwise contrary to law.’

10. The grounds asserted in the affidavit are as follows:

    ‘(1)The decision exceeds the constitutional limits of legislative power…

    (2)The decision was not made in good faith.

    (3)The decision was not reasonably capable of reference to the power with which it was made.

    (4)The decision was not made by reference to the subject matter, scope and objects of the Act.

    (5)The decision was made in breach of an express statutory limit or condition upon a power, which, as a matter of construction… be observed for the exercise of the power…

    …

    (7)The decision was made in breach of the requirements of procedural fairness...’

11. As I have said, nothing was advanced in support of any of the grounds in either the draft order nisi or the affidavit.  In his written submissions, the applicant sought to reagitate the findings of the Tribunal.  His submissions contain assertions about errors made by the Tribunal in assessing the risk that Maoists would be able to find him in India.  It is unfortunately clear that the applicant is unable to demonstrate any error on the part of the Tribunal that would justify any interference by this Court.

12. It follows that no arguable case has been demonstrated by the applicant that would justify the grant of the order nisi in respect of the Tribunal’s decision.  Accordingly, an order nisi should be refused.  It is appropriate that an order be made under O 51A r 52 that rule 51 not apply to this proceeding. 

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

Associate:

Dated:             20 January 2005

The applicant appeared in person
Solicitor for the Respondent:	S. Burnett, Clayton Utz
Date of Hearing:	2 November 2004
Date of Judgment:	2 November 2004