NAUR v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1300

FEDERAL COURT OF AUSTRALIA

NAUR v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1300

NAUR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ORS

N925 OF 2003

EMMETT J
31 OCTOBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N925 OF 2003

BETWEEN:

NAUR
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

KENNETH NORTHWOOD, MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

31 OCTOBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.the application be dismissed;

2.the applicant pay the first respondent’s costs of the proceeding;

3.leave be granted to the first respondent to file in Court the affidavit of Benjamin Alexander Cramer sworn 31 October 2003;

4.leave be granted to the first respondent to file an application by way of notice of motion seeking such orders as to costs as the first respondent is advised, such motion to be made returnable for directions on 14 November 2003 at 9.30 am before Emmett J.

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	N925 OF 2003

BETWEEN:

NAUR
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

KENNETH NORTHWOOD, MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

10 NOVEMBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS BY CONSENT THAT:

1.the order made on 31 October 2003 that the applicant pay the respondent’s costs be discharged and in lieu thereof the Court orders that the applicant’s solicitor, Mr Mark Clisby, pay the respondents’ costs of the application agreed in the sum of $4,000.00.

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	N925 OF 2003

BETWEEN:

NAUR
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFIRS
FIRST RESPONDENT

KENNETH NORTHWOOD, MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	EMMETT J
DATE:	31 OCTOBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant claims to be a citizen of, and formerly a resident in, Fiji.  He arrived in Australia on 7 July 2001.  On 20 July 2001, he lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth) (‘the Act’).  On 18 September 2001, a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa.  On 16 October 2001, the applicant applied for a review of that decision.  On 13 November 2002, the Refugee Review Tribunal (‘the Tribunal’) affirmed the decision not to grant a protection visa. 

2. On 5 August 2003, the applicant commenced a proceeding in this Court seeking relief under s 75(v) of the Constitution and s 39B of the Judiciary Act 1903 (Cth). The application records, in accordance with the Rules, that the applicant was notified of the decision of the Tribunal that is the subject of the application on or about 11 December 2002.

3. On 11 September 2003, the Minister filed a notice of objection to competency. Section 477(1) of the Act provides that an application to the Federal Court under s 39B of the Judiciary Act for prerogative writ or injunctive relief in respect of a privative clause decision must be made to the Federal Court within 28 days of the notification of the decision.  A ‘privative clause decision’ is, under s 474(2), a decision of an administrative character made under the Act. However, a decision purportedly made under the Act will not be a privative clause decision if it is affected by jurisdictional error on the part of the decision-maker.

4. Section 474(1) also provides that a privative clause decision is final and conclusive, must not be challenged, appealed against, reviewed, quashed or called in question in any court and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.  Thus, even if the application had been brought within 28 days of notification of the Tribunal’s decision, if it is a privative clause decision, this Court would not be able to grant any relief in respect of it.

5. The applicant, by written submission, contended that there was a jurisdictional error on the part of the Tribunal because it failed to assess properly and adequately the chance that the applicant might be seriously harmed because of his race upon his return to Fiji by reason of a further serious outbreak of violence against Indo-Fijians.

6. In its reasons, the Tribunal recorded that it accepted that the applicant is a citizen of Fiji.  The Tribunal noted his claims that his life is at risk in Fiji for reasons of his Indo-Fijian ethnicity and his alleged support of the Fijian Labour Party.  The applicant said to the Tribunal, at a hearing before it, that he feared that he would be harassed by indigenous Fijians if he returned to Fiji.  He asserted that, in the future, anything could happen to Indo-Fijians and expressed concern at what could happen if Indo-Fijians support the Fijian Labour Party at the next election.

7. The Tribunal was prepared to accept that the applicant may have experienced some incidents of harassment, threat and discrimination at the hands of indigenous Fijians. However, the Tribunal did not consider that he had appeared to have been denied any basic rights and freedoms.  It found that the applicant had freedom of movement, freedom to vote, and freedom to worship.  It found that he has had access to state structures such as education and that he had been able to complete his education.  It found that he had the opportunity to attain an elite level in his chosen sport of soccer.

8. The Tribunal was not satisfied that, taken individually or as a whole, the conduct of indigenous Fijians in the form of verbal abuse, the odd kick or punch and occasional theft amounted to the serious harm and systematic and discriminatory conduct that would constitute persecution within the meaning of the Refugees Convention. 

9. The Tribunal was satisfied that, generally speaking, the Indian community in Fiji is protected by the existing laws of Fiji, which include a sophisticated criminal justice system. The Tribunal was satisfied that, notwithstanding the claims made by the applicant of the dangers of cities and towns by night, there is effective protection available for all Fijian citizens in or near the major centres and townships. The Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention and accordingly the criterion set out in s 36(2) of the Act for the grant of a protection visa was not satisfied.

10. In his submissions, the applicant referred to a finding by the Tribunal that it was satisfied that the racially-motivated violence which took place in Fiji in 2000 has subsided and that it was satisfied that a further serious outbreak of violence against Indo-Fijians was not reasonably foreseeable.  The applicant’s assertion in his submission is that the Tribunal’s conclusion, that the chance that the applicant might be seriously harmed was remote, did not follow, and that thereby the Tribunal failed properly and adequately to assess the chance that the applicant might be seriously harmed. 

11. There appears to me to be no substance in the applicant’s submissions. If anything, they are no more than an invitation to this Court to review the merits of the Tribunal’s decision. I am not persuaded that there is any basis for concluding that there was jurisdictional error on the part of the Tribunal. It follows that the decision of the Tribunal was a privative clause decision within the meaning of the Act. Accordingly, this application was brought out of time. In any event, the Court would have had no power to interfere with it even if it had been brought in time. It follows that the application should be dismissed.

12. The Minister seeks an order for costs against the applicant.  There is no reason to depart from the usual rule in ordering an unsuccessful applicant to pay the respondent’s costs.  However, the Minister has also foreshadowed an application for a special order against the applicant’s solicitor, personally.

13. On 24 September 2003, the Minister’s solicitors wrote to the applicant’s solicitor, who was also acting in connection with a number of other matters commenced in the Court.  In that letter, the Minister’s solicitors asserted that each of the applications raised identical grounds without any particulars.  The letter ended by the statement that the Minister’s solicitors may bring the terms of the letter to the Court’s attention on the question of costs, including on the question of whether any such costs should be paid by the applicant’s solicitor personally.

14. On 27 October 2003, the Minister’s solicitors communicated by facsimile with the applicant’s solicitor again, indicating that the application ‘appears to us to be without merit’.  The letter also pointed out that the applicant had failed to comply with directions given on 22 August 2003.  The letter went on to say:

    ‘In the circumstances, we consider the Minister has incurred costs without reasonable cause.  Those costs have been incurred as a result of your filing a hopelessly unparticularised application and your failure to comply with the Court’s orders. 

    As foreshadowed in our letters dated 24 September 2003 and 15 October 2003, we hereby put you on notice that we will seek an order, in the event that the application is dismissed, that you personally pay the Minister’s costs associated with the application.’

15. On 30 October 2003, the applicant’s solicitor sent to the Minister’s solicitor a proposed form of amended application for an order of review.  Surprisingly, however, later in the evening of that day, the applicant’s solicitor foreshadowed an application for leave to discontinue the proceeding.  When the matter was called on for hearing today, a solicitor acting as agent for the applicant’s solicitors sought leave to discontinue. 

16. Under O 22 r 2(1) of the Federal Court Rules, the applicant would have been entitled to discontinue only with the leave of all respondents or with the leave of the Court.  The respondents did not consent to discontinuance.  Nothing was advanced to support an application for the Court’s leave to discontinue.  Accordingly, I refused leave.  Those matters are, however, material on the question of whether or not an order for costs may be made against the applicant’s solicitors, personally.

17. In the circumstances, I propose to give the Minister leave to file an application by way of notice of motion, returnable before me for directions on 14 November 2003, seeking such orders as to costs as the Minister is advised.  The Minister will, of course, have to comply with the rules for service in that regard and any affidavits in support of the application would need to be filed with the motion.  That will give the Minister and the applicant’s solicitors the opportunity, if they wish to take it, to discuss any other means of resolving the question as to whether the applicant’s solicitor should be ordered, personally, to pay the Minister’s costs of the proceeding.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            12 November 2003

Solicitor for the Applicant:	M Clisby through his Sydney agent, Ward Maxwell & Co
Counsel for the Respondent:	R J Bromwich
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	31 October 2003
Date of Judgment:	31 October 2003