S117 of 2005 v Minister for Immigration - [2006] FMCA 1169

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S117 of 2005 v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1169

MIGRATION – Application to High Court for orders nisi – matter remitted to Federal Court and transferred to this Court – no arguable case.

Migration Act 1958 (Cth)

Applicant M148/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 148
Commonwealth of Australia; Ex parte Marks (2001) 177 ALR 491
Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27
S172/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1659
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2

Applicant:

APPLICANT S117 OF 2003

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2273 of 2005

Judgment of:

Barnes FM

Hearing date:

8 August 2006

Delivered at:

Sydney

Delivered on:

8 August 2006

REPRESENTATION

Applicant:

In Person

Counsel for the Respondents:

Nil

Solicitors for the Respondents:

Sparke Helmore

ORDERS

That the application for orders nisi is refused;
That the applicant pay the costs of the first respondent fixed in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2273 of 2005

APPLICANT S117 OF 2005

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The application before me is an application for orders nisi for the issue of constitutional writs which was filed in the High Court on 22 April 2003 supported by an affidavit of the respondent sworn on 31 March 2003. The application was remitted by the High Court to the Federal Court and then transferred to this court. Directions were made in this court, by consent, on 21 September 2005 for the applicant to file and serve any further affidavit evidence and any written submissions on or before 3 February 2006. An order was also made, by consent, that the draft order nisi be listed for hearing today.
The applicant filed a document in the form of an application for an order to show cause under Rule 44.05 of the Migration Act 1958 headed “Amended Application”. I take this to be an endeavour to amend the grounds relied on in the draft order nisi within the constraints of the forms used in this court.
In the draft order nisi the applicant sought constitutional writs relating not only to the decision of the Refugee Review Tribunal (the Tribunal) handed down on 8 January 2003 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa, but also relating to the decision of the delegate of the first respondent made on 26 November 2001.
The principles to be applied in relation to an application for an order nisi remitted from the High Court and then transferred to this court have been considered in a number of judgments. (See in particular Applicant M148/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 148 and also see S172/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1659.) As was pointed out in Applicant M148/2003 the test in relation to an application for an order nisi is whether the applicant has established an arguable case.
There is a preliminary issue in relation to the application of time limits under the High Court Rules as they stood at the relevant time. The time limit in relation to an application for certiorari was six months under Order 55 Rule 17. In relation to applications for mandamus the time limit was two months under Order 55 Rule 30. The legal representative for the respondent indicated that no issue was taken as to compliance with time limits in relation to the application to challenge the decision of the Tribunal, but that there was an issue as to time in relation to the application to challenge the delegate’s decision of 26 November 2001. While there is a discretion to enlarge time pursuant to the High Court Rules (which have been applied in this court: see S172/2003), the High Court has made it clear that particularly to grant an extension of time beyond 12 months, exceptional circumstances would need to be shown: see Commonwealth of Australia; Ex parte Marks (2001) 177 ALR 491.
It is not, however, necessary in the circumstances of this case for me to determine the precise application of the High Court Rules in relation to extension of time and their application to the proceedings in this court. For the reasons given I give below I am not persuaded by what the applicant has put before me or on all the material before the Court that he has an arguable case in relation to either the decision of the delegate or the decision of the Tribunal.
Another preliminary point that I also mention, but do not need to consider at length, is that in his affidavit sworn on 31 March 2003 the applicant referred to the fact that after the Tribunal decision on 6 February 2003 he lodged an application for judicial review in the Federal Court of Australia. Annexed to the affidavit is a copy of orders that were made by the Federal Court on 7 March 2003 dismissing the application with costs. I am told from the bar table that the application was dismissed when the applicant failed to appear at a directions hearing. In any event no issue has been taken by the respondent in relation to the prior proceedings in the Federal Court.
As the applicant is now self-represented, albeit he had legal representation at the time at which he commenced these proceedings, I have considered all of the material before me in relation to whether an arguable case is established or apparent.
First, in oral submissions the applicant sought merits review and a further opportunity to put his case before the Tribunal. He did not suggest that there was any jurisdictional error in the Tribunal decision. He told the Court that it was only the Tribunal decision of which he sought review. He claimed that circumstances for Muslims in India had deteriorated and that he wished to have an opportunity to put further material in support of his case before the Tribunal. However merits review is not available in this court. The applicant’s wish to have another opportunity to put his case before the Tribunal does not establish an arguable case such as to warrant the making of the orders nisi that he seeks.
In relation to the grounds for the orders nisi, both in the amended application and originally, it is relevant to refer briefly to the Tribunal decision. The applicant, who is a citizen of India, claimed to fear persecution as a Muslim and because of his involvement in the Muslim League. The Tribunal’s reasons for decision outline the claims the applicant made at various times, including in written submissions from his then adviser.
In the findings and reasons part of its decision the Tribunal referred to independent country information in relation to the situation in India. It accepted that the applicant was a supporter of a Muslim party in India and also accepted that, as he claimed at the Tribunal hearing, he had encountered no difficulty prior to his travel to and return from Singapore and Malaysia to India in about November 2000 that would cause him to apply for refugee status. It accepted his general concern about the security of his country, but noted that such fears were not fears that engaged the provisions of the Refugee Convention, not being for reasons of ethnicity, religion or political opinion, but rather because of a fear of war generally.
The Tribunal discussed independent country information in relation to the situation between religious groups in India. It found the chance that the applicant would be involved in violence motivated by religious differences and seriously harmed as a result to be remote. It also found that the country information indicated that Indian authorities were willing and able to stop communal violence at the earliest opportunity. Elaborating on that information, the Tribunal did not accept that the applicant had a well-founded fear of persecution for reason of his religious belief and desire to practice his religion in India. It addressed his claims in relation to political profile, but was not satisfied he had a political profile of interest to the authorities in his State or elsewhere in India. It had regard to country information in relation to the existence of a robust democracy in India where elections are vigorously contended.
The Tribunal did not accept the applicant’s claims that he was harassed by police, as his claims in that respect were vague. The Tribunal also rejected the applicant’s claims in relation to mistreatment. The manner in which this claim was made at the Tribunal hearing led the Tribunal to conclude that the applicant was not recounting actual events. It found the applicant’s level of political involvement to be low and that even if in 1990 he was in a senior position in a branch it did not accept that this gave rise to a well-founded fear today, or that if he was involved in political matters it was at such a level that he was of interest to the authorities. The Tribunal noted the lack of any political involvement by the applicant in Australia and found that the applicant’s past activity in the Muslim League (based on country information indicating that it was a legal and active political organisation) did not give rise to a fear of persecution today. On the basis of those findings the Tribunal was not satisfied that there was anything more than a remote chance that the applicant would encounter difficulty upon return to India for reason of his past activities or if he decided to resume his interest in political activity.
In relation to the applicant’s claims to be wanted by the police the Tribunal also had regard to independent country information in relation to airport checks. It had no doubt that if the applicant had foreseen any difficulty from the authorities he would have taken measures to leave in a manner other than the way he did (travelling on his own passport). It was satisfied that that he had no well-founded fear of persecution.
The Tribunal also considered, on the basis of all of the evidence before it in relation to the applicant’s particular situation, the languages that he spoke, his employment history, his resilience and flexibility, and independent information in relation to the situation in India, that relocation was a real option for the applicant. It also found, based on the country information before it, that the applicant had genuine access to meaningful protection in his country of origin.
The Tribunal did not accept that the applicant had a political or other profile that gave rise to a well-founded fear of persecution in the Convention sense. It did not accept that he was sought by persons known to him or by persons unknown, or that the police in India would not offer him the same level of protection offered to all other Indian citizens. It did not accept he was tortured or mistreated by the police and was not satisfied that he experienced serious harm because of his involvement in political matters in India, or that he had any well-founded fear of persecution. On that basis the Tribunal affirmed the decision not to grant the applicant a protection visa.
The applicant indicated today that he relied on the grounds in the amended application filed on 7 February 2006. I address those grounds first. The first ground is a generally expressed ground that “The Tribunal failed to consider my application and refused to grant protection visa. The Tribunal denied my natural justice in relation to my well-founded fear of persecution and my right to stay here in Australia permanently.”
There are three particulars. The first is that: “The Tribunal found that it was possible that the applicant would suffer harm if he was returned to India. And therefore in breach of section 424A of the Migration Act (sic)”. As expressed, this generally expressed particular without any supporting evidence does not establish an arguable case of a breach of section 424A of the Migration Act 1958 (Cth). Despite the directions made in this court the applicant has not filed any further evidence in support of his claims. His affidavit of 31 March 2003 does not assist in establishing an arguable case of a breach of section 424A. More generally I note that insofar as this is intended to take issue with independent country information, such independent country information would be outside the 424A obligation by virtue of 424A(3)(a) of the Act. This is not a case in which the Tribunal purported to rely on inconsistencies or matters raised by the applicant before the delegate in a manner which would raise any issues consistent with the principles considered by the Full Court of the Federal Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 in conjunction with the principles in Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27. No arguable case is established on the basis of these particulars.
The second particular is:
The Tribunal was in breach of natural justice by not giving me an opportunity to respond to adverse information prior to affirming my protection visa application. The Tribunal short after hearing refused my application for protection visa and therefore in breach of section 424 on the Act.
Insofar as there is a reference to section 424 there is nothing in the material before the court to support any claim of an arguable breach of section 424. There is no suggestion that the Tribunal got any information and if it did so that it failed to consider that information. There is no particularisation of the more generally alleged breach of natural justice. There is no explanation of the way in which the applicant is said to have been denied natural justice and there is no evidence before the court to support such a claim. There is no transcript of the Tribunal hearing before the court. On the material before me, in circumstances where the applicant has had ample opportunity to put before the court whatever evidence he wished to rely on to support his claim, the general assertion of a denial of procedural fairness is not such as to establish an arguable case of a breach of natural justice.
The final particular relied on under this ground is that “The Tribunal did not consider the chance of persecution if I returned to India.” This is contrary to what the Tribunal decision reveals, which is that the Tribunal not only considered the applicant’s claims about past harm but also considered the chance of persecution if he returned to India (including his chance of harm if he wished to, and continued to, practice his religion) and in the context of its findings in relation to the availability of State protection and relocation. There is nothing in this generally expressed claim that raises any arguable case of a failure by the Tribunal amounting to jurisdictional error or that otherwise provides a basis for the applicant’s application for orders nisi.
I have also considered, insofar as they differ, the grounds relied on in the draft order nisi, which were also addressed by the legal representative for the respondent. The first is a generally expressed claim that the third respondent – and this is a reference to the Member of the Refugee Review Tribunal – did not follow the proper procedures as required by the Migration Act 1958. There are no particulars. Such an assertion is meaningless in the absence of particulars. I have already indicated above that the material before the court does not establish any arguable case in relation to a breach of section 424A or section 424 which are referred to in the amended application.
Similarly ground (b) contends generally that the Tribunal decision was affected by an error of law, jurisdictional error and lack of procedural fairness. Again, these mere assertions do not establish any arguable case in the absence of particulars or further evidence. Nor is there any evidence to support the generally expressed contention in paragraph (c) that there was no evidence or other material to justify the making of the decision. It is contrary to the Tribunal’s reliance on and reference to the claims made by the applicant, its assessment of those claims and of the independent country information before it. The material before the Court does not establish an arguable case of a claim on the basis of no evidence. The Tribunal gave consideration to the applicant’s claims in a decision which addressed those claims (insofar as they are apparent on the material before the court) and also addressed the country information and engaged in an analysis of the claims.
Paragraph (d) contends that there was a constructive failure of jurisdiction by the delegate of the first respondent to the decision of 26 November 2001 in that the delegate failed to address the correct legal question by not applying himself to all the issues he was required to consider in determining the matter before him. Again, this generally expressed contention does not clarify the manner in which it is contended that there was any error in the decision of the delegate. The contention is lacking in meaning without particulars or evidence. The same may be said in relation to the general contention in paragraph (e) that there was a failure by the delegate of the first respondent to exercise his jurisdiction because he did not reach a state of satisfaction based upon a correct understanding of the law on which acted and the general contention in paragraph (f) that the decision was made in breach of the rules of natural justice. Such grounds do not establish any arguable case of jurisdictional error.
Were it necessary for me to address the issue of time limits in relation to review of the delegate’s decision, the applicant has not established exceptional circumstances such as would be necessary to grant an extension of time. There is no evidence as to any circumstances that would warrant such an extension of time. The applicant previously sought judicial review of the Tribunal decision in proceedings in the Federal Court, but did not seek review of the delegate’s decision. Those proceedings were dismissed on 7 March 2003. The applicant does not dispute that this was because of his failure to attend a directions hearing. There is nothing before the court to suggest that he sought to have the orders made on 7 March 2003 set aside. Instead he proceeded by way of the proceedings in the High Court. In any event, as I have indicated, there is no arguable case established in relation to review of the delegate’s decision and hence any extension of time would be pointless.
On my reading of both the delegate’s decision and also the decision of the Tribunal, no arguable case of jurisdictional error is established in the manner contended for by the applicant. Nor is any such error apparent. On that basis I am of the view that no arguable case has been established and the application for orders nisi should be dismissed.
The respondent seeks orders that the applicant should pay the first respondent’s costs of the proceedings (which include the proceedings in the High Court, remittal to the Federal Court and to this court) fixed in the sum of $2,000. In light of the nature of this and other similar matters I consider that it is appropriate that the applicant, who has been unsuccessful, should meet the costs of the first respondent and that the amount sought is appropriate.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 28 August 2006