Nwaforjeffu v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 942

FEDERAL COURT OF AUSTRALIA

Nwaforjeffu v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 942

MIGRATION – Urgent application to prevent the respondent from deporting the applicant – applicant seeking deportation to a different country – whether grounds exist requiring the respondent to desist from deportation arrangements made - no evidence in support of alternative arrangements sought to be made by applicant

PETER OBIORA NWAFORJEFFU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 621 OF 2001

TAMBERLIN J
SYDNEY
25 JULY 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 621 OF 2001

BETWEEN:	PETER OBIORA NWAFORJEFFU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	25 JULY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay the costs of the respondent.

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 621 OF 2001

BETWEEN:	PETER OBIORA NWAFORJEFFU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	25 JULY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an urgent application which was made late yesterday in relation to arrangements which have been made by the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) to deport the applicant to Lagos.  I was informed during the morning hearing that the arrangements have been made for the applicant to depart Australia at 9.35 am on a flight to Johannesburg, where the applicant will board a connecting flight to Lagos.  The applicant seeks to restrain the Minister from forcing his departure.

2. The case which is advanced in support of the application to enjoin the Minister from giving effect to the arrangements which have been made to send the applicant to Lagos is that the applicant would be admitted to Fiji where there would be no suggestion of any danger to him as a result of the disturbances and circumstances which he referred to in his case before the Refugee Review Tribunal (“the Tribunal”) and before the delegate for the Minister.

3. In so far as the history of the matter is concerned, the applicant applied for a protection visa with the Department of Immigration and Multicultural Affairs.  A delegate of the Minister refused that application.  The delegate’s decision was affirmed by the Tribunal on review.  An application for judicial review was made to this court and on 16 May 2001 Wilcox J refused to grant the application and stated that he had considered carefully the reasons of the Tribunal and could not find any ground on which to review that decision for any error of law or principle.  This was because his Honour took the view that the claims made depended substantially on the applicant's credibility and the Tribunal was not satisfied of the applicant’s credibility.  It specifically rejected his claims, finding that they were factually improbable. 

4. An appeal was taken from that decision to the Full Court and on 30 November 2001 the Court delivered judgment dismissing the appeal.  It appears that no application was made to seek special leave to appeal from that decision to the High Court or if there was any such application, it does not appear to have been granted or progressed.  There was simply no evidence on this point.  Accordingly, the position is that on the findings made the applicant is not a refugee within the meaning of the well-known definition in the Refugees Convention as amended by the Protocol.

5. Nothing has been advanced to me today to indicate that there is any basis for saying that the Minister is bound or can be compelled to deport the applicant to Fiji. The findings of the Court and of the Tribunal are to the effect that if returned to Lagos, there would be no real chance that the applicant would be persecuted for a Convention reason. The application to Fiji has been made at a very late stage and no reasons have been given for its non-progression. No evidence, aside from a letter written by an Australian Member of Parliament to Fijian authorities, was proffered in support of the submission that he would be admitted to Fiji. I note that there was a considerable period between the date of the judgment of the Full Court on 30 November 2001 and today which is 25 July 2002 but I am informed that during this period there were applications by the applicant to the Minister under s 417 of the Migration Act 1958 (Cth) (“the Act”) for reconsideration of this matter.

6. In the circumstances I am not satisfied that there is any arguable ground indicated or suggested which would require the Minister to depart from the arrangements which have been made to deport the applicant to Lagos and to require the Minister to await arrangements being made with Fiji for the acceptance of the applicant by the authorities in Fiji.  Accordingly, I propose to dismiss the application which has been made this morning as I do not consider that any reasonably arguable ground has been advanced to adopt any other course. 

7. In the circumstances it may be difficult to recover the costs but in principle the costs should follow the event in the normal course and accordingly I make an order that the applicant pay the respondent’s costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            29 July 2002

Counsel for the Applicant:	I N Asuzu
Solicitor-Advocate for Respondent:	S Hanstein
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	25 July 2002
Date of Judgment:	25 July 2002