S1793 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 1607
•9 NOVEMBER 2005
FEDERAL COURT OF AUSTRALIA
S1793 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1607
APPLICANT S1793 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR
NSD 2418 OF 2003
EMMETT J
SYDNEY
9 NOVEMBER 2005
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2418 OF 2003
BETWEEN:
S1793 OF 2003
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENTREFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTJUDGE:
EMMETT J
DATE OF ORDER:
9 NOVEMBER 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Order 51A rule 5(1) not apply to the proceeding.
2.The application for orders nisi be refused.
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
NSD 2418 OF 2003
BETWEEN:
S1793 OF 2003
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENTREFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTJUDGE:
EMMETT J
DATE:
9 NOVEMBER 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicants are husband and wife and citizens of Peru. On 30 July 1996, they lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). On 6 March 1997, a delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) refused the application. On 20 March 1997, the applicants applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 28 November 1997, the Tribunal affirmed the delegate’s decision. IP Para Legal Services represented the applicants in the primary and review applications and in the Tribunal hearing.
On 5 June 2003, the applicants commenced a proceeding in the High Court of Australia by filing a draft order nisi, together with an affidavit, sworn on 2 June 2003. Accordingly, the application seeks an order by the High Court that would require the respondents to show cause why writs of prohibition, certiorari, mandamus or an injunction should not issue to them in respect of the Tribunal’s decision.
The grounds and particulars upon which relief was claimed in the draft order nisi were as follows:
‘a.the decision of the third respondent involved jurisdictional error in that it failed to accord procedural fairness to the prosecutor/applicant.
Particulars
(1) The second respondent advised the prosecutor/applicant that it has looked at all the papers relating to his application, including the Part B documents, when it had not.
(2) The prosecutor/applicant was thereby misled into thinking that it was unnecessary for him to draw the information in the Part B documents that favoured his application to the attention of the third respondent. Had the prosecutor/applicant not been misled in that regard, he would have taken steps to correct that situation.
(3) Particulars of the relevant documents will be supplied.
b.the decision of the third respondent involved jurisdictional error in that it failed to accord procedural fairness to the prosecutor/applicant.
Particulars
(1) The third respondent failed to provide the prosecutor/applicant a reasonable opportunity to respond to material that the third respondent took into consideration in reaching its conclusion.
(2) Particulars of the relevant documents will be supplied.’
No further particulars were supplied.
In the affidavit, the applicant claimed that the application was made as ‘part of’ the Lie v Refugee Review Tribunal [2002] HCA 30 (‘Muin and Lie’) class action. It stated the grounds for the order nisi as follows:
‘a.the impugned decision [of the Tribunal] is manifestly invalid; and
b.the Applicants lives are demonstrably at risk.’
No particulars of the above allegations were provided in the affidavit, nor were such particulars later supplied.
In the material supplied to the Tribunal, the applicant husband claimed to have been forced, under threat to his life, to make financial contributions to the political groups of individuals who purported to be ‘guerrillas’. The applicant husband claimed to be unaware of the precise identity of the ‘guerrillas’. The applicant husband stated that he did not think the Peruvian government would protect the applicants, that the police ignored their complaints and that he suspected that the ‘guerrillas’ may have ‘infiltrated’ the police force. He claimed that there was no safe place to live in the entire country.
On 31 October 1997, the applicants, through their adviser, told the Tribunal that in Peru, political opinion is imputed to ‘business people’ because such people are associated with ‘wealth and class’. At the hearing, the applicant husband said that he now knew that the ‘guerrillas’ were probably members of the ‘Shining Path’ as they had told the applicant husband this when they came to his shop to demand fixed fortnightly financial contributions from him. The applicant husband claimed that in 1989, after experiencing such problems for a year, he left Peru and came to Australia on a six month visa but returned to Peru after a month and opened a new shop. He claimed that in August 1990, the Shining Path found him and threatened to kill him if he did not collaborate with them. The applicant husband claimed then, from 1991 to 1994, to have lived with family and colleagues, having lost his shop and possessions. He then came to Australia on a three month visa and returned to Peru. Upon his return and until 1996 he claimed to have moved from province to province, living with family and colleagues.
The applicant husband and applicant wife gave evidence to the effect that in 1991, the Shining Path had made threatening telephone calls to the applicant husband’s business premises and his father’s home.
The applicant husband said that the Shining Path were interested in him because he had money and ‘discriminated’ against him because he supported the UDP (a political party). The applicant husband said that his support of the UDP was limited to signing a petition they presented to him during the 1995 elections. At the hearing, the Tribunal pointed out elements of the evidence given by the applicant husband that made it difficult for the Tribunal to conclude that he could objectively fear persecution in Peru, such as the lack of trouble from the Shining Path for a number of years, including periods when the applicant husband resided in his father’s home in Lima where the Shining Path could have located him. The Tribunal also pointed out various inconsistencies between the evidence given at the hearing and that provided in the primary application to the Minister, which the applicant had affirmed to be correct at the beginning of the hearing.
On 27 November 1997, the applicants’ adviser sent material to the Tribunal including a psychological report of the applicant husband by a person who states she was a registered psychologist with experience working with victims of organised crime, medical reports of the applicant husband’s medical condition and a statement from the applicant husband stating that there were occasions in the Tribunal hearing where the interpreter had not translated his evidence in exact form.
In its findings and reasons, the Tribunal acknowledged that the applicants’ evidence was consistent with the available independent country information. The Tribunal further noted the various documents provided by the applicants in support of the applicant husband’s claims. However, the Tribunal found that the substantial inconsistencies and omissions in the evidence given to the Tribunal were inadequately explained by the applicants. The Tribunal further found some aspects of the applicant husband’s evidence to have been unconvincing. Despite these considerations, the Tribunal accepted that the applicant husband was approached by the Shining Path for money in 1988 and attacked by the group in September 2001 for refusing to pay. The Tribunal also accepted that, in 1991, the applicant husband and his family members received threatening phone calls from the Shining Path because the applicant husband had not paid them money. The Tribunal also accepted that the applicant husband’s name appeared on a list prepared by the UDP.
However, the Tribunal found that there was no objective basis for finding that the applicants held a subjective fear of persecution in Peru. In any event, the Tribunal found that the applicants’ claims were not related to the 1951 Convention Relating to the Status of Refugees (‘Convention’) as any fear, if such fear was in fact held, was regarding extortion based on a perception of the applicant husband’s personal wealth, rather than on his political opinion, actual or imputed. In response to the applicant husband’s claim that he was at risk as a member of a particular social group being ‘business people’, the Tribunal found that it was not possible to say that business people in Peru formed a ‘cognisable, distinct, united group in society’ so as to form a ‘social group’ for Convention purposes and that such a group could not be defined by a ‘common fear of persecution’ (which the applicant husband claimed united all business people in Peru). The Tribunal found that the applicants would not face a real chance of persecution for a Convention reason if they returned to Peru.
The proceeding commenced in the High Court was remitted to the Federal Court of Australia by the High Court. For the reasons set out in Applicant S195 v Refugee Review Tribunal [2005] FCA 1571, it is appropriate for this matter to be dealt with on the papers.
Accordingly, on 12 November 2004, the New South Wales District Registrar wrote to the applicant at the address shown in the papers inviting the applicant to make such written submissions as he wished on the question of whether the Court should make an order nisi. The letter, relevantly, stated as follows:
‘As a result of an order by the High Court, your application was transferred to the Federal Court of Australia. The Federal Court must consider whether there is an arguable case for the Court to make an Order nisi. If the Court decides that there is no arguable case, your application for an Order nisi will be refused.
The Court proposes to consider whether there is an arguable case on the basis of the written material that you have given to the Court and without any oral hearing. The lawyer for the Minister will not be giving any information to the Court. Before the Court makes a decision you may make such written submissions in the English language as you wish o the question of whether the Court should make an Order nisi. Any submissions must be lodged with the Registry of the Court no later than 10 December 2004.’
There has been no response to that letter.
The allegations contained in the draft order nisi would, if accepted, constitute grounds for relief under both limbs of the Muin and Lie ratio decidendi. However, there is presently no material before the Court capable of supporting the above allegations. The material before the Court discloses no arguable case for the grant of Constitutional writ relief in respect of the decision of the Tribunal and does not disclose an arguable case for the proposition that the Tribunal fell into jurisdictional error in making its decision.
Order 51A rule 5(1) of the Federal Court Rules provides that, where an application for an order nisi is remitted by the High Court to the Federal Court, the Court will, at the same time, hear the parties on whether, if the order nisi were made, it should be made absolute. However, under rule 5(2) the Court may, in a particular case, order that rule 5(1) does not apply. It is appropriate to make an order under rule 5(2) in this case.
Accordingly, the refusal of orders presently sought would not constitute a final determination of any question between the applicant and respondents named in the draft order nisi and thus would not give rise to any issue estoppel or res judicata as between the applicant and the respondents. The applicant may commence a fresh proceeding in the Federal Magistrates Court should the applicant wish to pursue any claim for relief in respect of the Tribunal’s decision.
An order nisi should be refused.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 9 November 2005
Date of Judgment: 9 November 2005
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