S331 of 2003 v Refugee Review Tribunal

[2005] FCA 1604

FEDERAL COURT OF AUSTRALIA

S331 of 2003 v Refugee Review Tribunal [2005] FCA 1604

APPLICANT S331 OF 2003 v REFUGEE REVIEW TRIBUNAL & ORS

NSD 2440 OF 2003

EMMETT J
SYDNEY
9 NOVEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2440 OF 2003

BETWEEN:

APPLICANT S331 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 2440 OF 2003

BETWEEN:

APPLICANT S331 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 Pakistan.  On 1 November 1995, the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). On 8 May 1997, a delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) refused the application. On 11 June 1997, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 9 April 1998, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

2. The applicant commenced a proceeding in the High Court of Australia by filing a draft order nisi on 19 June 2003, together with an affidavit sworn on 18 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.

3. The affidavit filed on 19 June 2003 was sworn by the applicant’s solicitor.  The solicitor has since filed a ‘Notice of Withdrawal of Solicitor’.  The affidavit states 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.

   8. The prosecutor seeks the writs described in the draft order nisi …’

4. The ground upon which relief was claimed in the draft order nisi was 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. Before the Tribunal, the applicant (a Muslim, born in Karachi, Pakistan) claimed in written submissions and oral evidence that he was a member of a faction of the Mohajir Quami Movement (‘MQM’) and that members of an opposing faction wished to kill him.  He claimed that government agencies may also wish to kill him and thus, would not protect him, although no details were provided of this latter fear.  The applicant claimed to have been the victim of torture by members of the opposing MQM faction in October 1991, charged with false allegations in October 1993, December 1993 and January 1994, which had lead to a police raid on his house.

6. The Tribunal accepted, based on independent country information, that civil unrest, including conflict between the feuding factions of the MQM remains a problem in Karachi despite Government attempts to remedy the problem.  Noting that ‘persecution’ could be distinguished from ‘civil unrest’, the Tribunal accepted that the applicant had a subjective fear of falling victim to the ‘sporadic communal violence’ and the ‘political in-fighting’ in Karachi but found that for harm suffered to amount to persecution for a reason under the 1951 Convention Relating to the Status of Refugees (‘the Convention’):

   ‘The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality.  The Applicant did not claim that the police either condoned, were unable to control, or participated in any infliction of harm to the Applicant.’ 

7. The Tribunal found that, in any event, it would be reasonable for the applicant to relocate safely to a different suburb in Karachi, or a different province.

8. The Tribunal concluded that the applicant is 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. 

9. 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.

10. Accordingly, on 12 November 2004, the New South Wales District Registrar wrote to the applicant saying, 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 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.’

11. There has been no response to that letter.

12. The allegation in the draft order nisi, in its broad terms, does not appear to disclose a basis for relief in terms provided in Muin v Refugee Review Tribunal [2002] HCA 30. The draft order nisi makes reference to ‘grounds stated in the accompanying affidavit’ however, that affidavit does not provide further claims, grounds or particulars.  The material before the Court discloses no arguable case for the grant of Constitutional writ relief in respect of the decision of the Tribunal.  The material does not disclose an arguable case for the proposition that the Tribunal fell into jurisdictional error in making its decision.

13. 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. 

14. 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.

15. In the circumstances, an order nisi should be refused.

I certify that the preceding fifteen (15) 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