S1816 of 2003 v Refugee Review Tribunal

[2005] FCA 1608

FEDERAL COURT OF AUSTRALIA

S1816 of 2003 v Refugee Review Tribunal [2005] FCA 1608

APPLICANT S1816 OF 2003 v REFUGEE REVIEW TRIBUNAL & ORS

NSD 2411 OF 2003

EMMETT J
SYDNEY
9 NOVEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2411 OF 2003

BETWEEN:

APPLICANT S1816
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 2411 OF 2003

BETWEEN:

APPLICANT S1816
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 the People’s Republic of China (‘China’). On 15 September 1999, he lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). On 4 January 2000, a delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) refused the application. On 3 February 2000, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 27 June 2000, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

2. On 13 June 2003, the applicant commenced a proceeding in the High Court of Australia by filing an affidavit, sworn on 12 June 2003.  The words ‘Application for writs of mandamus, prohibition and certiorari’ appear on the affidavit.  It can be assumed that the affidavit (or ‘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 of 27 June 2000.

3. In the affidavit, the applicant states, relevantly, that:

   ‘4. In 1999 proceedings were commenced in this Court in the matter of Lie v Refugee Review Tribunal and Others (proceedings S89 of 1999).

   5. By order of this Court the prosecutor was joined to those proceedings as a member of the class of persons sought to be represented by the plaintiff therein.
   …
   7. On 25 November 2002 this Court granted leave to the group of persons named in the Schedule to the Statement of Claim in the matter of Lie v Refugee Review Tribunal and Others, of which the prosecutor is one, to file an application in this Court seeking an Order Nisi in relation to the decision of the First Respondent concerning that person.
   …
   9. The prosecutor seeks the writs described in the draft order nisi now produced and shown to me and marked “AFY-3”’

4. The exhibit marked ‘AFY-3’ bears the title ‘Draft Order Nisi’.  The ground upon which relief is claimed therein is as follows:

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

5. The applicant’s claim in his original application to the Minister was that he feared persecution in China for religious reasons.  The applicant claimed to be catholic and to have organised religious gatherings in China.  The applicant claimed that, having suffered police detention (and having been released on strict conditions) and restraints on the practice of his religion in China, he travelled to Singapore on a valid visa in August 1996, but claimed that his passport was kept by Singapore Customs and passed onto the Migration Bureau because of the fear that visitors would not abide by visa conditions.  The applicant claimed to have then paid a friend to obtain a ‘Certificate of Identity’ which he used to travel to Malaysia, later to re-enter Singapore and then to travel to Australia.

6. The applicant claimed to have become a practitioner of Falun Gong while in Singapore and that he continues to practice in Australia.  The applicant claimed to fear persecution in China should he return, by reason of his religious activities in China and Australia. 

7. The Tribunal did not accept that the applicant had organised religious gatherings in China, reasoning that the applicant’s insufficient knowledge of the Bible and the Christian faith (based on his responses to questions at the Tribunal hearing) was inconsistent with the applicant’s claims as outlined before.  The Tribunal also did not accept the applicant’s claims in regard to police harassment in relation to these gatherings.  The Tribunal noted that such a claim was inconsistent with the applicant’s ability to leave China for Singapore on a valid visa and passport.

8. The Tribunal further found that the applicant’s claims in relation to Falun Gong were invented.  At the hearing, the applicant was unable to answer the Tribunal’s questions regarding the significance of ‘Falun’.  The Tribunal was prepared to accept that the applicant practiced ‘Qi Gong’ (traditional breathing exercises), which was not banned in China and was widely taught and practiced there.

9. The Tribunal found that, if the applicant were to return to China, he would now be able to carry out his religious observances in a registered Catholic church, or, if that were to be impractical, in the privacy of his own home in which country information indicated the Chinese Government generally permitted small groups of people (ten to twenty) to gather and worship.  Accordingly, the Tribunal affirmed the decision of the delegate not to grant a protection visa to the applicant, being unable to accept that the applicant had a well founded fear that he would be persecuted on return to China.

10. 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. 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.

11. 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.’

12. There has been no response to that letter.

13. The affidavit and exhibits 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.

14. 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. 

15. 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.

16. An order nisi should be refused.

I certify that the preceding sixteen (16) 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