S153 of 2003 v Minister for Immigration

[2005] FMCA 1660

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S153 of 2003 v MINISTER FOR IMMIGRATION & ORS [2005] FMCA 1660

MIGRATION – Application for orders nisi in respect of a decision of the Refugee Review Tribunal – application remitted from the High Court – application late and disclosing no arguable case – application dismissed.

High Court Rules
Migration Act 1958 (Cth), s.417

Applicant S172/2003 v Minister for Immigration & Ors [2005] FMCA 1659
Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491

Applicant: APPLICANT S153 OF 2003

First Respondent:

Second  Respondent:

Third Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

File Number: SYG2276 of 2005

Judgment of: Driver FM

Hearing date: 14 November 2005

Delivered at: Sydney

Delivered on: 14 November 2005

REPRESENTATION

Counsel for the Applicant: Mr  B Young, appearing amicus curiae

Solicitors for the Respondent: Mr A Carter
Sparke Helmore

INTERLOCUTORY ORDERS

1. The application for orders nisi is refused.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2276 of 2005

APPLICANT S153 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

THE PRINCIPAL MEMBER OF THE
REFUGEE REVIEW TRIBUNAL

Third Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application for orders nisi seeking constitutional relief filed in the High Court on 21 April 2003.  The application was accompanied by an affidavit by the applicant filed on the same day.  On 8 August 2003 the parties consented to the proceeding being remitted from the High Court to the Federal Court which occurred by order of Heydon J on 20 August 2003.  On 5 August 2005 Emmett J transferred the proceeding from the Federal Court to this Court. 

2. Directions in relation to the proceeding in this Court were given by Registrar Hedge on 21 September 2005.  Relevantly, the applicant was ordered to file and serve evidence and legal submissions by 26 October 2005 and the matter was listed for directions before me today.

3. Mr Young appeared this morning as amicus curiae and alerted me to the fact that the applicant had been assisted by counsel on a direct brief but counsel was unable to continue.  Mr Young sought an adjournment in order to obtain instructions from the applicant with a view to further material possibly being filed in order to amend the application or further support it.  I refused that request.

4. I referred to the general principles relating to dealing with an application for orders nisi remitted from the High Court earlier this morning in Applicant S172/2003 v Minister for Immigration & Ors [2005] FMCA 1659. Those principles apply also in this case. I regard this case even weaker than the application in Applicant S172/2003. As in that case, there was an earlier proceeding in the Federal Court challenging the decision of the Refugee Review Tribunal (“the RRT”). That proceeding was instituted on 5 February 2002 and transferred to this Court on 7 May 2002. The application was discontinued on 5 June 2002. In his affidavit, the applicant explains that he discontinued in order to seek Ministerial intervention pursuant to s.417 of the Migration Act 1958 (Cth). That request was apparently refused and the applicant decided to institute the proceedings in the High Court, the subject of the hearing before me this morning.

5. The application on its face purports to challenge the decision of the Minister which Mr Carter, for the respondents, assumes is the Ministerial decision under s.417. It is clear that such a decision is not judicially reviewable. If on the other hand the applicant is seeking to again challenge the decision of the RRT made on 11 December 2001 and handed down on 9 January 2002 the application faces insuperable problems. First, it does not disclose an arguable case and nothing has been filed which would disclose an arguable case, notwithstanding the directions made by the Registrar on 21 September this year.

6. Mr Young, although he has only had a very limited opportunity to peruse the material and has not had an opportunity to take proper instructions from the applicant, suggested that a case might hypothetically be advanced of a failure to take into account a relevant consideration, namely threats against the applicant or his family by individuals from the Communist Party of India (CPI) and also the possible failure to comply with an obligation to disclose information adverse to the outcome of the application with particular reference to letters submitted by the applicant in support of his claims.

7. In my view, it is apparent from a reading of the RRT decision and reasons that the applicant's claims to fear harm at the hands of the CPI were considered by the RRT.  While some letters produced by the applicant were given no weight by the RRT, it does not appear to me that that rejection was in any way determinative of the outcome of the application.  The RRT took the view that the applicant probably had no fear of persecution but if he did it was not well founded and even if it was well founded he could relocate within India.  I see no arguable basis on which the decision of the RRT can be challenged. 

8. Secondly, there has been extensive delay between the decision of the RRT and the proceeding instituted in the High Court.  Under the High Court Rules an extension of time of over 12 months would be required.  In my view, exceptional circumstances would need to be shown to grant such an extension of time[1]. I see no such exceptional circumstances. 

   [1] Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491

9. Accordingly and having regard to the delay in bringing the proceedings in the High Court, I will dismiss the application for orders nisi.

10. On the question of costs, the application having been dismissed costs should follow the event.  The Minister seeks $2,500 on a party and party basis, taking into account the proceedings in the three courts which have dealt with the application.  Mr Young conceded that the amount sought was reasonable.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $2,500.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  21 November 2005