NATE v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCA 1000
•18 SEPTEMBER 2003
FEDERAL COURT OF AUSTRALIA
NATE v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1000NATE v MINISTER FOR IMMIGRATION & MULTICULTURAL &
INDIGENOUS AFFAIRSN 815 OF 2003
LINDGREN J
18 SEPTEMBER 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 815 OF 2003
BETWEEN:
NATE
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
LINDGREN J
DATE OF ORDER:
18 SEPTEMBER 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs.
3. The respondent not enter orders 1 and 2 until Tuesday, 21 October 2003.
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
N 815 OF 2003
BETWEEN:
NATE
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
LINDGREN J
DATE:
18 SEPTEMBER 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant seeks prerogative relief under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) given on 17 June 2003 by which the Tribunal affirmed a decision of a delegate of the respondent (‘the Delegate’ and ‘the Minister’ respectively) not to grant a protection visa to the applicant.
The applicant was found by the Tribunal to be a national of Iran. He arrived in Australia on 7 February 2003. On 3 March 2003 he lodged an application for a Protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) under the Migration Act 1958 (Cth) (‘the Act’). The Delegate refused to grant the visa on 16 April 2003. Also on 16 April 2003 the applicant applied to the Tribunal for review of that decision.
The Tribunal gave reasons for its decision extending over 31 pages. It had before it the Department’s file and had regard to the material referred to in the Delegate’s decision and other material available to the Tribunal. The applicant gave oral evidence to the Tribunal on 21 May 2003 and again on 23 May 2003.
The applicant claimed to come from a family which supported the former monarchy. His claim was that he had come to the adverse attention of the Iranian authorities because of certain pro-monarchist political activities in which he had been engaged.
A particular claim related to events alleged to have occurred in Tehran on 7 December 2002, National Students’ Day, when, according to the applicant, he was distributing leaflets at the university. He claims to have been targeted by the Iranian police.
The Tribunal analysed the applicant’s claims over the events of 6 December 2002 and was not satisfied that he was in Enqelab Avenue during the serious civil unrest which, according to the Tribunal, occurred in the afternoon, whereas the applicant’s claim was that he was present at about 10.00 am. The Tribunal considered numerous other aspects of the applicant’s claims which, for the Tribunal, cast doubt on the reliability of those claims.
In summary, the Tribunal did not accept as credible the applicant’s claim that he had been identified as an activist in support of the monarchy in Iran or that his family members in Iran had been harassed for that reason since the applicant’s departure. The Tribunal did not accept that the Iranian authorities had any intention of arresting or harming the applicant because of pro monarchy beliefs.
In the application filed in this Court on 9 July 2003 by which this proceeding was commenced, the applicant stated four grounds, none of which were particularised. The four grounds are as follows:
(a) failure to make a bona fide attempt to exercise power and failure to act in good faith;
(b) unreasonableness;
(c) failure or constructive failure to comply with the requirements of the Act; and
(d) denial of natural justice ‘in respect of legislative procedure’.It should be noted that the applicant, who gave his address for service as Villawood IDC Stage 2 on the form of application, was not represented on the Court record by any legally qualified person.
At the time of filing the application (by facsimile transmission) the applicant filed a supporting affidavit which, omitting formal parts, was as follows:
‘1. I am the applicant in these proceedings.
2.I strongly believe that I am entitled to be recognised as a refugee in a civilised society like Australia.
3.The decision-maker failed to consider all the relevant information and country information provided to him.
4.I only wanted the right to settle in Australia due to persecution which I experienced in my native country.
5.I acknowledge that my well-founded fears are true and are continuing.’
This morning Ms Scanlan, solicitor, appears for the applicant and has applied for an adjournment of the hearing. Ms Scanlan received instructions from the applicant as recently as about 4.30 pm yesterday afternoon and has little knowledge of the background facts. Ms Scanlan asserts that the applicant has had a succession of legal advisers; that Ms Scanlan has been informed by Mr Levet of counsel that there is an arguable issue in favour of the applicant’s case; and that Mr Levet is out of Sydney today. Ms Scanlan herself is not in a position to make submissions in support of the substantive application. The Minister does not consent to an adjournment.
This case was fixed for hearing as long ago as 17 July when directions were made for preparation of the proceeding for hearing. I note from the Court file that the applicant participated in the Court’s pilot ‘Migration Advice’ scheme and was referred by the Registry to solicitors for legal advice. According to Mr Lloyd of Counsel who appears for the Minister, the applicant did in fact participate to the extent of receiving legal advice. Of course, I do not know what the advice was, but what matters for present purposes is that at least the applicant has had some legal advice. This is one factor relevant to be taken into account on the application for adjournment. As well, I understand from Ms Scanlan that Mr Levet was briefed some six weeks ago but it is unclear to what extent he has been involved, if at all, since then.
There is no affidavit in support of the application for the adjournment and Ms Scanlan is not in a position to indicate what is the precise point which Mr Levet says is arguable in favour of the applicant.
Ms Scanlan also submits that, according to her instructions, the applicant has come by further evidence which, if it had been before the Tribunal, may have given added weight to the applicant’s claim and may have led to the Tribunal accepting those claims. This, of course, is not, without more, a ground for review by this Court and therefore is not to be taken into account on the application for the adjournment.
There is simply no adequate case made out for an adjournment and I refuse that application.
I indicated that, if an order adverse to the applicant should be made, I would order that the Minister not enter the order of dismissal for a period of some four weeks, during which time the applicant could apply by notice of motion supported by affidavit for an order setting aside the order of dismissal. The evidence in support of such a motion would need to explain why the point could not be run on the hearing today as well as to demonstrate that the point had some prospects of success.
The Tribunal did not believe the applicant on the central aspects of his claims. The Court cannot grant him relief.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate:
Dated: 23 September 2003
Solicitor for the Applicant: M Scanlan Counsel for the Respondent: S Lloyd Solicitor for the Respondent: Sparke Helmore Date of Hearing: 18 September 2003 Date of Judgment: 18 September 2003
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