S1814 of 2003 v Refugee Review Tribunal

[2005] FCA 1593

FEDERAL COURT OF AUSTRALIA

S1814 of 2003 v Refugee Review Tribunal [2005] FCA 1593

APPLICANT S1814 OF 2003 v REFUGEE REVIEW TRIBUNAL & ORS

NSD 2409 OF 2003

EMMETT J
SYDNEY
9 NOVEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2409 OF 2003

BETWEEN:

APPLICANT S1814 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:

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 2409 OF 2003

BETWEEN:

APPLICANT S1814 OF 2003

APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE:

9 NOVEMBER 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Indonesia.  On 2 March 2000, the applicant lodged an application for a Protection (Class XA) Visa under the Migration Act 1958 (Cth) (‘the Act’). On 9 March 2000, a delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) refused the application. On 12 April 2000, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 28 March 2001, the Tribunal affirmed the delegate’s decision.

2. The applicant commenced a proceeding in the High Court of Australia by filing a draft order nisi on 13 June 2003, together with an affidavit sworn the day before. Thus, 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.

3. The affidavit discloses that the applicant is a person named in the Schedule to the Statement of Claim in the matter of Muin v Refugee Review Tribunal [2002] HCA 30. The matter was remitted to this Court pursuant to an order of the High Court following the decision of Muin v Refugee Review Tribunal [2002] HCA 30.

4. The ground for relief is described in the draft order nisi as follows:

   ‘the Tribunal failed to afford the Applicant/Prosecutor natural justice because the Applicant/Prosecutor had not been given an opportunity or an adequate opportunity to prepare and present favourable material at hearing or an adequate opportunity to respond to unfavourable material.’         

5. No particulars are provided in support of this claim. The draft order nisi makes reference to ‘grounds stated in the accompanying affidavit’, however, that affidavit does not provide further claims, grounds or particulars.

6. On 24 January 2001, the Tribunal wrote to the applicant, inviting her to give oral evidence and present arguments at a Tribunal hearing on 21 February 2001.  The Tribunal advised the applicant in that letter that, having considered all the papers supplied in relation to her application, it was unable to make a decision favourable to the applicant on the basis of that information alone.  On 16 February 2001, the applicant wrote to the Tribunal, communicating that she did not wish to give oral evidence and wanted the Tribunal to make a decision ‘on the papers’ alone.

7. In the material supplied by the applicant, she claimed to have been born in Bogor, to have lived most of her life in Jakarta and to fear persecution in Indonesia on the basis of her Chinese ethnicity.  She arrived in Australia on 12 May 1995 and applied for protection almost 5 years later on 2 March 2000.

8. The applicant claimed to have suffered discrimination by local Indonesians and to have been ‘treated differently’ to the local Indonesians.  She claimed that it was hard for an ethnic Chinese to study, work and live among local Indonesians.  She claimed that they called her ‘funny names’ and blamed her when there was any trouble at school.  She claimed to have left school for this reason but that she found it impossible to obtain a job because of her ethnicity and lack of education. The applicant claimed that in 1962 when she was 15 years old, her mother and father disappeared.  She claimed that she was told that they had left her a letter, but that she never saw it.

9. The applicant claimed that in 1998, after she had left Indonesia, her parents house was burned down.

10. The Tribunal, on the basis of independent country information and evidence given by the applicant, found that the applicant’s claims of racial discrimination did not amount to persecution for a reason under the 1951 Convention Relating to the Status of Refugees (‘the Convention’). 

11. The Tribunal reasoned that the matters identified by the applicant as forming the basis of her fears were ‘largely matters of personal circumstance’ and noted that the material put before it by the applicant raised general claims of racial discrimination but lacked specific details about the applicant’s own circumstances.  The Tribunal also considered that the applicant’s delay in lodging an application for a protection visa was, in the circumstances, inconsistent with a subjective fear of persecution.  The Tribunal, further, was satisfied that the government in Indonesia provided adequate State protection to the ethnic Chinese minority and to removing discriminatory practices.

12. The Tribunal concluded that the applicant was not a person to whom Australia has protection obligations under the Convention.  There is no material before the Court that suggests the existence of an arguable case for the claim that the Tribunal fell into jurisdictional error in making its decision.  

13. The proceeding commenced in the High Court was remitted to the Federal Court of Australia. 

14. 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.

15. Accordingly, on 12 November 2004, the New South Wales District Registrar wrote to the applicant stating, relevantly, 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 on 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.’  The letter was addressed to the applicant at the address shown as the “last known address” of the applicant in the “Notice of Withdrawal of Solicitor” filed by the applicant’s then solicitor on 20 April 2004.  There has been no response to that letter.’

16. The letter was addressed to the applicant at the address shown in the papers.  There has been no response to that letter.

17. The application and supporting affidavit do not show an arguable case for the grant of the final relief claimed.  The material no more than pleads the right to such relief and does not contain evidence of facts that are capable of supporting the grant of such relief.  The material does not disclose an arguable case for the proposition that the Tribunal fell into jurisdictional error in making its decision.

18. 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 Federal Court will, at the same time, hear the parties on whether, if the Order nisi were made, it should be made absolute.  Rule 5(2) qualifies rule 5(1) and provides that, in a particular case, the Court may order that rule 5(1) does not apply.  It is appropriate to make an order under rule 5(2) in this case. 

19. 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.

20. In the circumstances, 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