Nath v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1593

FEDERAL COURT OF AUSTRALIA

NATH v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1593

NATH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, DR RON WITTON MEMBER REFUGEE REVIEW TRIBUNAL, THE PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL

N833 OF 2003

BENNETT J
18 NOVEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N833 OF 2003

BETWEEN:

NATH
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

DR RON WITTON MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

THE PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

BENNETT J

DATE OF ORDER:

18 NOVEMBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application to adjourn is refused.

2.The application is dismissed with 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	N833 OF 2003

BETWEEN:

NATH
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

DR RON WITTON MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

THE PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	BENNETT J
DATE:	18 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter was before the Court on 4 September 2003 on which occasion consent orders, signed by the agent for the solicitors for the applicant and the solicitors for the first respondent, were made.  The solicitors were notified of the hearing date on 23 September 2003 by the Court.  The consent orders included an order for the filing and service of any amended application and evidence and also an order that the applicant file and serve an outline of submissions on or before five working days prior to the hearing date.  The parties had liberty to apply on three days’ notice.

2. Yesterday, my associate was contacted by the solicitors for the applicant and told that an adjournment was sought.  Yesterday afternoon, a facsimile was sent by counsel for the applicant to my associate in the following terms:

   ‘I confirm I act for the applicant and have received instructions that the applicant will in the morning seek to adjourn the hearing on the basis that my instructing solicitor has been unable to obtain instructions.  Some evidence of this is being prepared.

   The respondent have advised that they are opposed to the application to adjourn.’

3. This morning counsel appeared and made an application for an adjournment.  This was, in reality, an application to vacate the hearing date.  In support of the application was an affidavit of Mark Wallis Clisby, sworn 17 November 2003.  Mr Clisby says that he is unable to get any instructions from the applicant despite attempting to do since, apparently, 13 November and up to yesterday, although only, apparently, by telephone. 

4. He also says that the reason why his office was late in trying to get instructions before 13 November was:

   ‘because of time pressures which have occurred in my office, as well as a series of staff changes.’

5. Mr Clisby says that he first became aware of the hearing date when a notice of hearing was faxed to his office by his Sydney agents on 31 November 2003.  He then annexes a letter sent by the Court to his agents dated 23 September 2003.  There is no explanation as to why so much time elapsed between the notification by the Court and the date when he says that his agents informed him of the hearing date, or why he took no steps to comply with the orders made on 4 September 2003 or why he failed to make a timely application to the Court for a vacation of the hearing date.  He was notified of the orders of 4 September 2003 by his agents by facsimile sent the same day as those orders were made.

6. I am informed by Mr Burwood, counsel for the applicant, that he was briefed on Friday, 14 November but that he had not seen any of the papers in this matter, including the decision of the Tribunal.  No explanation is given as to why this is so.  It goes without saying that in support of his application to vacate the hearing counsel did not advance any submissions on the merit of the application for review.

7. If the solicitor has been unable to obtain instructions it's hard to see how it could be said that the applicant is seeking an adjournment.  In that regard I note that the applicant declined to appear before the Refugee Review Tribunal (‘the Tribunal’).  Further, it is extraordinary that, despite the orders made on 4 September 2003, the solicitors and counsel waited until yesterday to notify the Court and in an informal manner of a proposed adjournment application apparently without the applicant's specific instructions.

8. As I have said, the application for an adjournment is opposed.  Ms Francois for the first respondent submitted that no adjournment should be granted as no sufficient explanation has been given and that there are no merits in the appeal.  She also pointed to a failure to explain why the instructions taken for the purposes of filing the application for review were insufficient or needed supplementing or were not provided to counsel for today.

9. The first respondent has appeared by her counsel and solicitor and has incurred costs.  The first respondent has also filed written submissions in accordance with the orders made on 23 September 2003 but, as pointed out, in the absence of written submissions by the applicant.  There is no way of ensuring that the first respondent's costs thrown away will be met and indeed there is no offer to pay such costs.  While costs are not the primary issue, it is a factor to be taken into account.

10. When I indicated that I was not minded to grant the adjournment, Ms Francois provided Mr Burwood with a copy of the Court book together with the application for review and her written submissions.  I adjourned the matter until later in the day to enable Mr Burwood to make submissions on that application.

11. In all the circumstances, bearing in mind the history of the matter, I did not vacate the hearing.  I am of the view that there is no sufficient reason advanced by counsel why I should do so.

12. I now turn to the application itself.  This is an application seeking review of a decision made by the Tribunal on 26 May 2003 and handed down on 20 June 2003 which affirmed a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (the Delegate’) to refuse the applicant a protection visa.

13. The applicant is a 21 year old Fiji citizen of Indian descent and Christian religion.  The applicant entered Australia on 4 August 2002 on a visitor's visa.  On 7 August 2002 the applicant lodged an application for a protection (class XA) visa.  The applicant claims that he only left his country in order to save himself from being killed by ‘native Fijians’.

14. The applicant claimed a well-founded fear of persecution in Fiji on the basis of his race.  In the protection visa application the applicant claimed:

    (a)He was having an ‘affair with a native Fijian girl with whom he was in love and she with him;

    (b)Her family ‘did not accept me because of my race’.

    (c)When they ‘caught me’, he was beaten ‘very badly’ and threatened and nearly ‘chocked to death’ when he continued to see the girl.

    (d)The girl's family were planning to kill him before he left Fiji.

    (e)He did not go to the authorities because he would be ‘punished for the affair’ and ‘some of the police officers are related to the girls family’.

15. He said that he was afraid of the police and the army.  No reasons were given for this fear of the latter.  He also referred to ‘discrimination and hatred’ between some native Fijians and Indians and ‘harassment’ and ‘mistreatment’.

16. The applicant claims that if he returns to Fiji ‘the girls relatives will beat me and put an end to my life’.  There is no suggestion by the applicant that if he returns to Fiji he intends to continue the relationship with the young woman.

17. The applicant's application was refused by the Delegate on 5 September 2002.  On 13 September 2002, the applicant applied to the Tribunal for a review of the Delegate's decision.  On 1 May 2003, the Tribunal wrote to the applicant at the address on his application and invited him to attend a hearing.  The letter informed the applicant that it had ‘considered the material before it in relation to [his] application but was unable to make a decision in [his] favour on this information alone’.

18. Despite being informed that the Tribunal was unable to make a decision in his favour on the information then before the Tribunal, the applicant, in writing, declined the invitation to attend a hearing and did not attend.  On 20 June 2003, the Tribunal handed down its decision affirming the decision of the Delegate to refuse the protection visa.

19. The Tribunal found that the applicant did not have a well-founded fear of persecution in Fiji.  In particular it found that the applicant had not been persecuted within the meaning of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (‘the Convention’) as there was no Convention nexus between the harmed fear and the Convention.  The Tribunal found:

    (a)The harm the applicant feared was for a non-Convention reason being as ‘merely a result of the anger of the girl's family that he and she had a relationship’;

    (b)While that anger may have a ‘racial aspect’, this is not the ‘essential and significant motivation’ for the persecution feared; and

    (c)The independent country information indicated that there was effective state protection available to the applicant in that there is a functioning Police Internal Affairs Unit and a constitutionally mandated Human Rights Commission. In the absence of further evidence from the applicant as to why he could not turn to these bodies were he to be refused protection by the police, the Tribunal was not satisfied that the applicant does not enjoy protection.  This finding was open to the Tribunal in the absence of any evidence on this aspect from the applicant.

20. The findings at (a) and (c) are independently fatal to the applicant's claim. The Tribunal's finding in relation to the reasons for the persecution in (a) and (b) was in accordance with section 91R(1)(a) of the Migration Act 1958 (Cth) (‘the Act’).

21. The applicant's solicitor filed an application in this Court on 11 July 2003 and in the application the applicant claimed the following grounds of review:

    1.That a breach of the rules of natural justice occurred in connection with the making of the Decision.

    2.That the Applicant was denied procedural fairness in connection with the making of the Decision.

    3.That the Decision involved an error or law, whether or not the error appears on the record of the Decision.

    4.That the procedures that were required by law to be observed in connection with the making of the Decision were not observed.

    5.That the making of the Decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

    6.That there was no evidence or other material to justify the making of the Decision.

    7.That the Decision was otherwise contrary to law.

    There was no further particularisation of these general grounds or anything that links any ground specifically with the decision of the Tribunal. 

22. Mr Burwood, after having been given the opportunity to examine the Court book and the Tribunal's reasons, said that there was no argument that he could find to advance the applicant’s position nor could he find any grounds on which to base a challenge to the Tribunal's decision.

23. The applicant has not demonstrated any error that would lead to the conclusion that the Tribunal had failed to exercise or exceeded its jurisdiction.

24. The application should be dismissed with costs.  The order of the Court is the application is dismissed with costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:             9 January 2004

Counsel for the Applicant:	Mr D Burwood
Solicitor for the Applicant:	Mark Wallace Clisby
Counsel for the Respondent:	Ms R Francois
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	18 November 2003
Date of Judgment:	18 November 2003