Applicant S8 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1422

FEDERAL COURT OF AUSTRALIA

Applicant S8 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1422

APPLICANT S8 of 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR

N 592 of 2004

ALLSOP J
1 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N592 of 2004

BETWEEN:	APPLICANT S8 of 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
GILES SHORT, IN HIS CAPACITY AS A MEMBER OF THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	29 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to order 51A r (5)(2), direct that subrule (1) of Rule 5 not apply.

2.Dismiss the application for an order nisi.

3.The applicant pay the first respondent’s costs.

4.Extend time for any application for leave to appeal up to and including Monday, 15 November 2004.

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	N592 of 2004

BETWEEN:	APPLICANT S8 of 2004 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
GILES SHORT, IN HIS CAPACITY AS A MEMBER OF THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	ALLSOP J
DATE:	1 NOVEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter, on Friday, 29 October 2004, I made orders under Order 51A rule 5 subrule (2) ordering that subrule (1) not apply and dismissing, with costs, the application for a draft order nisi.  These are the reasons for those orders.

2. The applicant is a national of Pakistan who, on 5 January 2004, filed in the New South Wales Registry of the High Court of Australia a draft order nisi seeking orders under s 75(v) of the Constitution in respect of a decision of the Refugee Review Tribunal (the Tribunal) made on 11 October 2002, and handed down on 31 October 2002, in which the Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa.

3. Before examining the material put in support of the draft order nisi, it is relevant to understand that the Tribunal examined the material from the departmental file and indicated in correspondence to the applicant, that it was not in a position to be satisfied on the material before it of the legitimacy of his claims and that it would be necessary to have a hearing so that the applicant, if he wished to press his claims, could bring the Tribunal to the state of satisfaction required under s 65 and s 36 of the Migration Act 1958 (Cth).

4. The Tribunal rejected an application for an adjournment because of asserted illness and asked the applicant to attend the hearing on the appointed day some one month in advance.  The applicant indicated in a form that he was not going to attend; and he did not personally attend the Tribunal hearing. 

5. It should be recognised that the process of hearing and decision by the decision-maker being the Tribunal on review, is one in which the Tribunal must reach a state of satisfaction as to relevant matters including the existence of protection obligations of Australia in respect of the applicant before it is entitled to grant a protection visa. In circumstances where, as is the case here from a reading of the Tribunal reasons and the papers, it appears that there were logical and rational reasons why the Tribunal was not satisfied in the absence of a hearing of the existence of those protection obligations.  It becomes very hard for an applicant to identify jurisdictional error in a Tribunal’s decision when the Tribunal simply comes to the conclusion that it is unsatisfied of the existence of those protection obligations on the material before it.

6. The draft order nisi sets out a number of grounds upon which it is said that the Tribunal's decision was made without jurisdiction or without jurisdictional elements being satisfied.  It was first said that there was no bona fide attempt to exercise the power.  Secondly, and in the alternative, it was said that the Tribunal failed to recognise that the applicant continues to harbour protection fears in respect of the persecution he experienced in his native country.  Thirdly, it was said that the decision lacked reasonableness, exhibited a constructive failure to comply with the Migration Act and exhibited a denial of natural justice.

7. The particulars to these matters of lack of reasonableness, constructive failure to comply with the Act and failure to accord natural justice were five,  and set out factual matters concerning the applicant's history and factual matters concerning the request for an adjournment.

8. An affidavit was filed in support of the application in the High Court.  It is 17 paragraphs long.  The first seven paragraphs were admitted as an identification of the applicant's claims.  Two of the paragraphs touch upon the question of the request for an adjournment but do not identify any real reason why the applicant did not attend the hearing.

9. The Tribunal's reasons recount what happened in relation to the request for the adjournment.  By letter dated 31 July 2002, the applicant was notified that the Tribunal was unable to make a decision in his favour without a hearing and the hearing was scheduled for almost two months hence, 19 September 2002. On 18 August 2002, the applicant provided the Tribunal with a copy of a letter dated 14 August 2002 from a consulting psychologist stating that he had seen the applicant on 10 August 2002 and that the applicant was suffering from acute stress disorder associated with pain from an accident he suffered while working in Australia on 29 March 2000.  The consulting psychologist stated that the applicant had been asked to appear for an interview with immigration authorities, and that in his opinion the applicant would not be well enough to attend an interview for two to three months. On 20 August 2002, the Tribunal wrote to the applicant indicating that it was not prepared to postpone the scheduled hearing on the basis of the report.  The Tribunal noted that it appeared that the applicant had only consulted a psychologist on one occasion over two years after the incident which the psychologist suggested had caused the applicant to suffer the stress.  The Tribunal noted that the psychologist stated that the applicant had mentioned to him that he was suffering constant pain, yet the applicant had produced no reports from a treating doctor with regard to medication, if any, to control the pain.  The Tribunal noted that the psychologist was not a medical doctor and was not qualified to offer any opinion as to the applicant's medical condition or prognosis.

10. The Tribunal viewed the psychologist's report as formulaic and not stating, for example, what tests, if any, had been administered in forming the view that the applicant was suffering from acute stress disorder.  The Tribunal noted that it was not clear on what basis the psychologist had formed his opinion that the applicant was not well enough to attend an interview with the immigration authorities.  This was the basis for the Tribunal not postponing a hearing a further month. 

11. On 29 August 2002, the Tribunal received from the applicant a completed response to hearing invitation form indicating that he did not want to come to the scheduled hearing and consented to the Tribunal proceeding to make a decision without taking any further action to enable him to appear before it.

12. In these circumstances, I see no error procedural or otherwise in the steps taken by the Tribunal to hear the matter. I certainly see no argument that there was a denial of procedural fairness.

13. That possible basis for a denial of natural justice having been dealt with, there is nothing on the material filed in the High Court which would support an assertion that there had been jurisdictional error by the Tribunal in reaching the conclusion that it was not satisfied of the relevant matters on the material before it.

14. On 14 October 2004, the applicant filed in this Court an outline of submissions in support of his application.  First of all, there was an assertion of actual bias.  I take this to be another way of formulating the lack of bona fide attempt to exercise the power referred to in the draft order nisi.  There is simply no basis whatsoever from a reading of the Tribunal decision for any assertion of actual bias.  The particulars of actual bias appear to be based on the fact that the Tribunal was not satisfied of the existence of protection obligations in circumstances where the applicant did not appear before the Tribunal.  These assertions are baseless.

15. Thereafter there are a number of assertions of what might be said to be a formulaic kind asserting rights under Muin v Refugee Review Tribunal (2002) 190 ALR 601 and about the privative clause, s 474 of the Migration Act.  None of these matters was supported by any evidence.  None of these matters is in any way in the submissions related directly to this applicant's position or case. There is then a further series of formulaic assertions about R v Hickman; ex parte Fox & Clinton (1945) 70 CLR 598. The same comments apply. There is then a reference to the High Court decision in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476. No matter is raised which relates to the applicant's own case. Put shortly, the applicant's outline of submissions provides no foundation whatsoever for any argument that there has been jurisdictional error by the Tribunal.

16. In these circumstances, notwithstanding the view of the first respondent initially urged on me that I should deal with this matter on a final basis, the case is one where it is completely appropriate to make the direction in Order 51 rule 5 (2) that subrule (1) not apply and that this case be dealt with on an interlocutory basis by rejection of the draft order nisi on the ground that no arguable case is put forward. Before taking this course, I asked the applicant whether he had a view as to this course explaining in this context the different potential appellate structures. He said that he had no view on the matter.

17. The history of the applicant is relevantly fully set out in the Tribunal's decision.  It is also helpfully summarised in the first respondent's outline of submissions, which I will leave with the papers.  In this matter, the applicant has indicated no basis for any argument that the Tribunal's decision was infected by of jurisdictional error.  That absence is apparent from the draft order nisi, the affidavit in support of the draft order nisi and the submissions to this court in writing.

18. I should add that on the hearing of this matter on 29 October, I asked the applicant at least twice as to whether he wished to add to his submissions orally.  He indicated that he did not.  I should also add that on 29 October, the applicant said that he was not well.  This was only said at the time I began to deliver judgment.  No application was made for any adjournment before me.  No evidence was led before me as to any illness.  The applicant did not indicate that he was unable to put any submissions by reason of any physical or mental incapacity.

19. These are the reasons for the orders, which I made on Friday, 29 October 2004.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             2 November 2004

The applicant appeared in person with the assistance of an interpreter.
Counsel for the Respondent:	Mr A Markus (slr)
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 October 2004
Date of Judgment:	1 November 2004