S219 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 1564
•29 OCTOBER 2004
FEDERAL COURT OF AUSTRALIA
S219 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1564S219 OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N1455 of 2004
MADGWICK J
29 OCTOBER 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N1455 of 2004
BETWEEN:
S219 OF 2004
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTHONOURABLE GILES SHORT, IN HIS CAPACITY AS A MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT
JUDGE:
MADGWICK J
DATE OF ORDER:
29 OCTOBER 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs on an indemnity basis.
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
N1455 of 2004
BETWEEN:
S219 OF 2004
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTHONOURABLE GILES SHORT, IN HIS CAPACITY AS A MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT
JUDGE:
MADGWICK J
DATE:
29 OCTOBER 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
HIS HONOUR:
This matter is before the Court by reason of an order of remittal made by Heydon J in the High Court of Australia on the 23 August 2004, following an application by the applicant to the High Court in substance for the issue of constitutional writs seeking the quashing of a decision of the Refugee Review Tribunal (‘the Tribunal’) and an order that the Tribunal rehear the matter.
The applicant is a Pakistani national who came to Australia over three and a half years ago, in February 2001. On 15 April 2002, he applied for a protection visa and that application was refused on 18 September 2002. On 3 October 2002, he was taken into immigration detention and on 4 October 2002, the Tribunal received his application for review of the initial decision of the first respondent's delegate.
The Tribunal member advised the applicant of an intended hearing on 3 January 2003. On 27 December 2002, the applicant sought an adjournment of that hearing ‘in order to collect some evidence’. The applicant was informed that the presiding member was not prepared to postpone the hearing but the applicant again wrote to the Tribunal stating he needed time to collect evidence. On the day fixed by the Tribunal for the hearing, the applicant advised the staff at the centre where he was detained that he did not wish to attend the Tribunal hearing.
On 6 January 2003, the Tribunal affirmed the delegate's decision. The applicant claimed to have a well founded fear of persecution in Pakistan by reason of his religion. He claimed that he and his family were associated with an extremist Sunni Muslim group which had differences with a local extremist Shia group. There had been fighting, shots were fired and the applicant had suffered some minor injuries. He had left Pakistan to work in the United Arab Emirates but subsequently returned to Pakistan. The Tribunal member, however, was not satisfied that any fear of persecution held by the applicant was well founded.
On 24 January 2003, the applicant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision. He declined to attend the hearing, which was fixed for 19 May 2003, and sent a note to the first respondent’s solicitor saying:
‘I do not want to go to the Federal Court because I have to proceed this matter in a different way.’
A copy of this communication was tendered to the Court. The learned Federal Magistrate noted the applicant’s claims that the Tribunal made an error of judgment, had failed to make a bona fide attempt to exercise its powers and was not acting in good faith. No real particulars of these grounds were given by him nor did he file an amended application or affidavit in support, as he had been procedurally required to do. The learned Federal Magistrate was unable to find any jurisdictional error in the decision of the Tribunal and dismissed the applicant's application with costs in an assessed sum.
The applicant then appealed from the judgment of the Federal Magistrates Court to this Court. During the pendency of that case he was released from immigration detention. The appeal was heard by Hill J. The applicant sought an adjournment when the matter came on for hearing nearly two months after a directions hearing and three and a half months after the applicant commenced proceedings in this Court. When the matter came on for hearing, the applicant sought an adjournment of the case to enable him to obtain money and legal representation. Unsurprisingly, his Honour declined the application for adjournment, saw no legal error on the part of the Federal Magistrate and dismissed the appeal with costs.
Nearly nine months later, on 16 June 2004, the applicant made his present application by way of an affidavit and draft orders nisi to the High Court.
The draft orders nisi seem to complain of: an error by the Tribunal in interpreting something, presumably the law; a failure by the Tribunal to make a bona fide attempt to exercise its power; lack of reasonableness of the decision; a constructive failure to comply with the Migration Act 1958 (Cth); and/or a denial of natural justice.
Some other factual matters were briefly referred to in the accompanying affidavit. The applicant complained that the Tribunal did not take into account ‘all independent reports’ and, in apparent consciousness that he was well out of time to seek relief by way of constitutional writs in the High Court, the applicant sought to explain his delay by saying that when he was in the detention centre he did not know what to do because, as I understand it, he had no access to outside advice. The applicant stated further that he did not know whether he could apply in the High Court, and that he had no legal support, but a refugee organisation had caused him to ‘know that I can get justice from [the] High Court’.
The applicant appeared before me unrepresented, after first seeking a further lengthy adjournment to enable him to get legal advice, an application which I refused. He sought to tender some factual material which he submitted would show that the Tribunal had made factual errors in considering his case, but was unable to suggest any legal error made by the Tribunal.
Whether or not, after remission of the matter to this Court, the High Court’s time limits would require relaxation, the delay would tell against the applicant. In any case, there is no sign of any jurisdictional error in the decision of the Tribunal and Hill J has already held that there was no error in the Federal Magistrate’s judgment declining to grant judicial review in respect of that decision. Quite apart from the apparent hopelessness of the claim, in substance, for relief by way of constitutional writs, the relief sought appears to be substantially that which was earlier sought. Certainly there is no explanation as to why the relief now sought could not have been earlier sought.
It is quite clear, when one examines the conduct of the applicant over a long time, that he has simply used the available legal processes in a cynical way in order to enlarge his time in Australia. In the circumstances, I think the respondent’s submission that the present proceedings are not only baseless but amount to an abuse of process is correct. I will decline the application for an order nisi.
The application is dismissed with costs. I order that the applicant pay the costs of the respondent Minister on an indemnity basis.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate:
Dated: 1 December 2004
The applicant appeared in person. Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 October 2004 Date of Judgment: 29 October 2004
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