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Re Refugee Review Tribunal; Ex parte HB

Re Refugee Review Tribunal; Ex parte HB

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Case Copied 8 June 2001 15 min read

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HIGH COURT OF AUSTRALIA
KIRBY J
RE REFUGEE REVIEW TRIBUNAL & ANOR RESPONDENTS
EX PARTE HB PROSECUTOR
Re Refugee Review Tribunal; Ex parte HB
[2001] HCA 34
Date of Order: 7 May 2001
Date of Publication of Reasons: 8 June 2001
S63/2001
ORDER
Application dismissed with costs.
Representation:
The prosecutor appeared in person
No appearance for the first respondent
M J Leeming for the second respondent (instructed by Sparke Helmore)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

KIRBY J. This is an application for relief pursuant to s 75(v) of the Constitution. It is brought by Mr B. I have described him in this way at his request. There is no interest in the Australian community in knowing his name. It may be desirable that his name should not be disclosed to authorities in his own country. I shall call him "the applicant".
In his application, the applicant names the Refugee Review Tribunal ("the Tribunal") as the first respondent and the Minister for Immigration and Multicultural Affairs ("the Minister") as the second respondent. Nothing turns, in these proceedings, on whether the first respondent is correctly named by its institutional title rather than by reference to the particular officer of the Commonwealth concerned[1]. The Minister has appeared to resist the relief sought. The Tribunal has submitted to the orders of this Court. The Minister is represented by counsel. The applicant is unrepresented and has communicated to the Court through an interpreter of the French language.
[1]cf Re Ruddock; Ex parte Reyes (2000) 75 ALJR 465 at 468 [25]; 177 ALR 484 at 489 referring to Brown v Rezitis (1970) 127 CLR 157 at 169.
The history of the proceedings
The draft order nisi filed by the applicant seeks the issue of the constitutional writs of mandamus directed to the Tribunal and prohibition directed to the Minister. Effectively, it seeks to restrain the carrying into effect of a decision of the Tribunal concerning the applicant given on 14 October 1999. That decision affirmed the decision of the Minister's delegate refusing the applicant a protection visa. Such visa was claimed on the basis that the applicant is a refugee under the Convention relating to the Status of Refugees 1951 as read with the Protocol of 1967 and as incorporated in Australian law[2].
[2]Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at [1], [58], [110] and [169].
The applicant arrived in Australia without proper documents on 18 November 1998. He applied for a protection visa on 2 December 1998. His application was refused by the Minister's delegate. The refusal was affirmed by the Tribunal on 11 February 1999. However, the applicant successfully applied to the Federal Court of Australia for review of that decision. On 8 July 1999 Tamberlin J set aside the Tribunal's decision. He remitted the matter for re‑determination by the Tribunal, differently constituted. Such reconsideration occurred on 14 October 1999.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] HCA 34
Decision Date: 8 June 2001

CaseChat Overview and Summary

The applicant, HB, an unrepresented individual held in immigration detention, sought constitutional writs from the High Court of Australia against the Refugee Review Tribunal. The dispute concerned the Tribunal's rejection of HB's application for a protection visa, which was based on a claim of refugee status due to persecution related to his Berber activism in Algeria.

The primary legal issue before the Court was whether HB had demonstrated jurisdictional error on the part of the Refugee Review Tribunal, thereby establishing a reasonably arguable case for the issuance of an order nisi for constitutional writs under s 75(v) of the Constitution. This involved considering allegations of apprehended bias and whether the Tribunal's mention of humanitarian considerations constituted a jurisdictional error.

Kirby J reasoned that the Tribunal's statement regarding humanitarian issues accurately reflected the limits of its jurisdiction, which is confined to determining eligibility for a protection visa. The power to grant a visa on humanitarian grounds rests solely with the Minister. His Honour found that HB's core complaint was that the Tribunal had reached the wrong factual conclusion, which did not, without more, amount to jurisdictional error. Despite acknowledging HB's disadvantage as an unrepresented litigant, Kirby J concluded that none of the grounds relied upon by the applicant were reasonably arguable, and there was no evidence of jurisdictional error. Consequently, the application was dismissed with costs.

Orders

Orders of the court

Application dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIRBY J

For all this, I consider that the applicant has said all that, unaided, he can say in complaint about the decision of the Tribunal. His essential complaint is that the Tribunal came to the wrong decision in his case on the facts placed before it. That is not a complaint that, without more, enlivens the jurisdiction of this Court to provide a constitutional writ. Specifically, it is a complaint that falls short of showing jurisdictional error on the part of the Tribunal. In the circumstances, I am not convinced, by what I have read and heard today, that any of the grounds relied on by the applicant has been made out as reasonably arguable. I see no evidence, in the matters placed before me, that supports any of the three complaints which the applicant makes.Conclusion: application dismissed In these circumstances, to extend the applicant's claim, and continuing loss of liberty, would be futile and unreasonable. Without skilled legal representation, the applicant has no real prospect that he could identify an arguable ground of jurisdictional error on the part of the Tribunal. Unaided by such representation, I can see none. The applicant has already been in Australia without a proper visa for two and a half years. The time has come to close this chapter in his life. He has exhausted the remedies available under the Australian legal system, save only for an appeal, by leave, to the Full Court of this Court. In my opinion, his application for an order nisi must be dismissed. In accordance with the normal rule it must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Established by: KIRBY J

For the foregoing reasons, the Tribunal expressed its ultimate conclusion on page 26 of its reasons:"if the applicant returns to Algeria, he will not face a real chance of persecution because of his Berber race and/or political opinion imputed to him by the authorities and/or the militants by reason of his Berber activism. The Tribunal finds that the applicant's fear of return to Algeria on the ground of his Berber activism is not a well‑founded fear of persecution for a Convention reason."Mention of humanitarian considerations At the close of its reasons the Tribunal, on page 27, stated this:"Given the state of Algeria, the Tribunal notes that the applicant's case appears to raise humanitarian issues. However the Tribunal's role is limited to determining whether the applicant satisfies the criteria for the grant of a protection visa. A consideration of his circumstances on other grounds is a matter solely within the Minister's discretion." The applicant stressed this last‑mentioned statement. The statement does appear to indicate accurately the limits of the Tribunal's jurisdiction. By s 417 of the Act, the Minister is entitled to substitute a decision for the Tribunal on humanitarian grounds. However, this entitlement must be exercised by the Minister personally. It is not a power that belongs to the Tribunal. Accordingly, it is not a power that could be exercised by this Court reviewing the decision of the Tribunal with a view to considering the availability of constitutional relief. I can understand why the applicant, having read the Tribunal's reference to humanitarian issues, regards that question as pertinent to his case. He apparently applied to the Minister for the exercise of the Minister's discretion. The Minister has not exercised the discretion in his favour and has given no reasons for his decision. The applicant mentioned other cases involving Berbers from Algeria where a protection visa was granted by the Tribunal. However, I know nothing of those cases or of the particular circumstances upon the basis of which those cases were determined. I can only deal with the present application on the material that has been put before me and in relation to the law applying to it.Absence of demonstrated jurisdictional error I am not sure that the applicant fully appreciated the distinctions which our law draws between an appeal on the merits from a decision such as that of the Tribunal and the limited jurisdiction which this Court enjoys to set such a decision aside for jurisdictional error. I endeavoured, during the hearing, to address his attention to the three grounds which were set out in his application. Those grounds were apparently drawn with the assistance of someone who understands the limited jurisdiction of this Court. The applicant did his best; as did I. However, obviously, he was at a severe disadvantage, not having an advocate or available legal advice. The subtleties of "jurisdictional error" have sometimes escaped experienced judges. It is, therefore, not wholly surprising that the distinction might not have been fully understood by the applicant.