S1835 of 2003 v Refugee Review Tribunal
[2005] FCA 1443
•20 OCTOBER 2005
FEDERAL COURT OF AUSTRALIA
S1835 of 2003 v Refugee Review Tribunal [2005] FCA 1443
S1835 of 2003 v REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 2392 of 2003
BRANSON J
20 OCTOBER 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2392 of 2003
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
BETWEEN:
S1835 of 2003
APPLICANTAND:
REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENTMINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENTJUDGE:
BRANSON J
DATE OF ORDER:
20 OCTOBER 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application for an order nisi be dismissed.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2392 of 2003
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
BETWEEN:
S1835 of 2003
APPLICANTAND:
REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENTMINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT
JUDGE:
BRANSON J
DATE:
20 OCTOBER 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 31 August 1994, the Refugee Review Tribunal (‘the Tribunal’) affirmed a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’) refusing the applicant a protection visa under the Migration Act 1958 (Cth).
The applicant filed an application for an order nisi in the High Court on 1 July 2003 requiring the respondents to show cause why constitutional writs should not be issued in respect of a decision of the Tribunal said to have been made on 31 August 1993. It seems clear that the reference to ‘1993’ is an error and should read ‘1994’. The application was remitted to this Court pursuant to orders made by Gaudron J, as varied by McHugh J, following the delivery of the High Court’s judgment in Muin v Refugee Review Tribunal (2002) 76 ALJR 966.
The applicant, a citizen of Pakistan, supported his application for an order nisi by an affidavit sworn by the applicant’s then instructing solicitor and filed on 13 June 2003. On 16 April 2004 the applicant filed a notice of intention to act in person. By correspondence of 12 November 2004, the District Registrar of the Federal Court informed the applicant that the Court proposed to consider whether there is an arguable case for the granting of an order nisi on the basis of written material before the Court. The applicant was invited to provide written submissions on the question of whether the Court should make an order nisi and did so on 10 December 2004.
I propose to deal with this application on the papers.
The applicant’s submissions disclose that the applicant lodged an application for a protection visa in January 1993 and a further application for a protection visa in April 1995 based on changed circumstances. Each application was refused by a delegate of the Minister. The first application was the subject of review in the Tribunal’s decision delivered on 31 August 1994 (‘the first Tribunal decision’). The second application was the subject of review in a decision of the Tribunal delivered on 17 October 1996 (‘the second Tribunal decision’).
It is, in my view, a complete answer to the applicant’s application for the issue of an order nisi that he made a subsequent application for a protection visa that was considered and refused by a delegate of the Minister and that the Tribunal subsequently entertained his application for review of the decision of the delegate. Nonetheless, I propose to give brief consideration to the two decisions of the Tribunal.
THE FIRST TRIBUNAL DECISION
The affidavit filed in support of the application contends that the Tribunal took into account written submissions from the Secretary, Department of Immigration & Multicultural & Indigenous Affairs made pursuant to s 423(2) of the Migration Act 1958 (Cth) without bringing the submissions to the attention of the applicant or providing the applicant with an opportunity to comment on them. However, the allegation that such submissions were received or considered by the Tribunal in the making of its first decision is not supported by any evidence before this Court.
Nothing has been placed before this Court which indicates that the Tribunal failed to afford the applicant procedural fairness in relation to matters considered by the Tribunal. The Tribunal found that the applicant is able to obtain effective protection elsewhere in Pakistan and that political changes since the applicant’s departure mean that the applicant could now approach the authorities for protection. The applicant was asked to comment, and indeed did so, on both his previous internal relocation within Pakistan and the outcome of recent elections.
THE SECOND TRIBUNAL DECISION
The applicant’s submissions contend that the Tribunal did not provide the applicant with an opportunity to comment on adverse information. The submissions do not provide any further details of this complaint.
The applicant further submits that the Tribunal gave the applicant only one day to submit additional material and that the applicant was unable properly to answer questions that were put to him at the hearing as he was suffering depression as a result of his wife’s recent death. There is nothing before this Court which suggests that any jurisdictional error attends the decision of the Tribunal to conduct its hearing in the circumstances that it did or to allow the applicant only one day to submit additional material.
Although the Tribunal’s reasons for decision do not disclose the extent to which some adverse information was put to the applicant, the Tribunal ultimately reached the same finding as in the first Tribunal decision. That is, that the applicant is able to obtain effective protection elsewhere in Pakistan. While the Tribunal’s reasons for decision do not disclose whether the issue of internal relocation was put directly to the applicant at the second hearing, the Tribunal’s reasons clearly indicate that the Tribunal gave the applicant an opportunity to comment on the first Tribunal decision but he declined to do so.
On the material before me, the applicant has not made out an arguable case that the Tribunal committed jurisdictional error in either of its decisions with respect to the applicant.
The application for an order nisi is dismissed.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate:
Dated: 20 October 2005
The applicant is self-represented. Solicitor for the Respondent: Australian Government Solicitor Date of Judgment: 20 October 2005
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