Applicants S335-2003 v Refugee Review Tribunal & Anor

[2006] HCATrans 399

[2006] HCATrans 399

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S539 of 2005

B e t w e e n -

APPLICANTS S335 OF 2003

Applicants

and

REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 AUGUST 2006, AT 1.22 PM

Copyright in the High Court of Australia

KIRBY J:  

Background

The applicants, nationals of Fiji, arrived in Australia in January 1997.  In April of that year the applicant husband (who was the moving party) applied for a protection visa pursuant to the Migration Act 1958 (Cth), on the basis of an alleged refugee status. Essentially, his claim was founded on his Indian ethnicity and what he submitted was the serious disadvantage occasioned to him and his wife and daughter on that ground as citizens of Fiji. In particular, he complained that he was discouraged by the government of Fiji from having children and that he and his wife had been pressured to have an abortion by a nursing sister and doctor, by inference allegedly as part of state policy antagonistic to ethnic Indian citizens.

Following the refusal of the application by the primary decision‑maker, the applicant sought review by the Refugee Review Tribunal (“the Tribunal”).  In March 1998, the Tribunal rejected the applicant’s application and affirmed the primary decision.  The Tribunal stated, on the basis of identified country information, that there was no evidence to suggest that abortion was legal in Fiji, let alone encouraged.  It accepted that there was some discrimination against persons on the basis of ethnicity.  However, it concluded that the applicant had exaggerated his claims and that any problems experienced by the applicant (and his wife) were not Convention-related.  Thus no protection obligations were owed attracting an entitlement to a protection visa.

The applicant initially sought constitutional writs in this Court.  By order of Gaudron J, dated 25 November 2002, this Court remitted the applicant’s proceedings instanter to the Federal Court of Australia.  So remitted, the proceedings were assigned to Wilcox J.  His Honour dealt with them on the papers.  In a brief statement of reasons for his disposition, his Honour ordered that subrule (1) of Order 51A rule 5 of the Federal Court Rules should apply to the case and that the applicant’s application for an order nisi should be refused.  His Honour did this for the reason that, having considered the papers “including the applicant’s submissions” he did not think that any of the grounds referred to by the applicant was fairly arguable.  For that reason his Honour decided that it would be inappropriate to grant an order nisi and the application for order nisi was refused. 

The applicant then sought leave to appeal within the Federal Court from this order of Wilcox J.  He sought leave, being in doubt as to whether the order was interlocutory or final.  He complained that Wilcox J had erred in holding that the papers filed, including the applicant’s written submissions, did not disclose a fairly arguable case.  He submitted that Wilcox J had misapplied and misconstrued the law.  This application was heard in the Federal Court by Lindgren J.  His Honour identified the alleged denial of procedural fairness to the applicant, in so far as it was asserted that the applicant was not given a fair opportunity to respond to country information upon which the Tribunal relied, as the only conceivably arguable ground.  However, Lindgren J concluded that there was no merit in the ground of failure to accord procedural fairness in this case.  He held that leave to appeal was required and that it should be refused.

Disposition

In this Court, the applicant’s draft notice of appeal is principally addressed, in its sixteen grounds, to the suggested failure of the judges of the Federal Court to understand and give effect to the complaints of persecution, advanced by the applicant for himself and his wife.  These grounds make generalised allegations of jurisdictional error and complain of the failure of Wilcox J to give reasons and to consider all of the claims advanced. 

Ordinarily, unless excused by statute or rules made under statute, before an application for an order nisi for judicial or constitutional review is refused, a party should be given the opportunity to be heard (if necessary by additional written submissions) before that step, which puts the applicant out of court, is taken.  The course adopted in the Federal Court in this case is reserved to cases of indisputable clarity where effectively no other outcome is arguable.  Even then, a judge should pause because of the possibility that he or she may not have fully understood the way the claim is advanced. 

This said, the Rules of the Federal Court, made under statutory authority, permit that Court, or a judge, in proceedings remitted to that court by this Court (as these were) and in the circumstances of “a particular case”, by order, to relieve the Court of the obligation to hear the parties as to whether an order nisi should be made absolute.  In the Federal Court, clearly, Wilcox J considered that hearing the applicant would be a waste of the Federal Court’s time.  Effectively, this was equivalent to a conclusion that the application, remitted by this Court to the Federal Court, was in the nature of an abuse of process, frivolous or vexatious.  That was an interlocutory, procedural conclusion.  Lindgren J decided that it was a conclusion fully open to Wilcox J in the circumstance of this case. 

We have carefully read the applicant’s written case.  We are not convinced that a reconsideration of the matter in this Court would enjoy any prospect of succeeding, given the well-known rules that restrain the disturbance by appellate courts of interlocutory procedural decisions of such a kind. 

The larger questions which the applicant seeks to advance must await a case, if any, in which relevant evidence is provided on the record to ground the application and in which the prospects of success are stronger than in this case.  Here, in effect, the applicant’s claim was rejected upon the basis of factual conclusions that were open to the Tribunal.  The prospects of disturbing those conclusions in an appeal to this Court are negligible.  Special leave should therefore be refused.

Order

Pursuant to r 41.10.5 of the High Court Rules we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish that disposition signed by Callinan J and myself.

AT 1.27 PM THE MATTER WAS CONCLUDED