S449 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1765

FEDERAL COURT OF AUSTRALIA

S449 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1765

S449 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N1102 OF 2004

EMMETT J
3 AUGUST 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1102 OF 2004

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:	S449 OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	3 AUGUST 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The notice of motion filed today be dismissed.

2.The application for extension of time to file and serve the notice of appeal of 15 July be dismissed.

3.The applicant pay the Minister’s costs on the notice of motion and on the application for extension of time.

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	N1102 OF 2004

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:	S449 OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE:	3 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant claims to be a citizen of Pakistan.  He arrived in Australia on 14 October 1999, and on 28 October 1999 he lodged an application for a Protection Class XA Visa under the Migration Act 1958 (Cth). On 20 January 2000, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa and, on 11 February 2000, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for a review of that decision. On 3 May 2002, the Tribunal affirmed the decision not to grant a protection visa. The Tribunal handed down the decision on 29 May 2002.

2. On 4 December 2002, the applicant commenced a proceeding in the High Court seeking constitutional writ relief in respect of the Tribunal’s decision.  The proceeding was commenced by filing an affidavit, to which there was exhibited a draft order nisi and the reasons of the Tribunal.  The grounds asserted in the draft order nisi were as follows:

   ‘(a)a breach of the rules of natural justice occurred in connection with the making of the Decision.

   (b)the Decision involved an error of law, whether or not the error appears on the record of the Decision.

   (c)procedures that were required by law to be observed in connection with the making of the Decision were not observed.

   (d)the making of the Decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

   (e)that there was no evidence or other material to justify the making of the Decision.

   (f)the decision was otherwise contrary to law.’

   No particulars of those claims were provided.

3. The proceeding was remitted to this Court by the High Court on 6 February 2003.  On 21 May 2003, the matter came before me for directions.  At that stage there was no appearance by or on behalf of the applicant.  I therefore directed that the matter be allocated to a docket, and the matter came on before Allsop J on 1 August 2003.  On that day, his Honour ordered that the application be dismissed pursuant to O 10 r 3(2) (now repealed) because there was no appearance for the applicant.

4. It is common ground that the applicant was not notified of the proposed hearing before Allsop J on 1 August 2003 and that the matter proceeded in the absence of the applicant without any knowledge on his part.  That appears to be the result of a failure by the applicant to take adequate steps to inform the Minister of his address for service or to inform the High Court of the proper address for service. 

5. The applicant filed an application for an extension of time to file and serve a notice of appeal on 15 July 2004.  That application was misconceived.  The grounds stated in the draft notice of appeal attached were that his Honour erred by dismissing the matter:

   ‘…on the basis that I was not there at the direction hearing whereas I was never informed that such a direction hearing or any other hearing is on 1/8/03.  The Notice about such a hearing was sent incorrectly to my old postal address.’

6. His Honour was under no misapprehension about notification of the applicant, however, there was no material before the Court to indicate that any further steps could have been taken.  There was, therefore, no error on the part of his Honour in ordering that the application be dismissed pursuant to O 10 r 3(2). 

7. When the application for an extension of time was called on for hearing before me as duty judge today, counsel for the applicant indicated that he wished in the alternative to rely on a notice of motion, which he sought leave to file, seeking an order that the proceeding before Allsop J be reinstated.  That course was suggested by the solicitors for the Minister, and the motion was filed in Court without objection.  The parties then asked me to deal with that motion. 

8. The Minister opposes the making of an order for reinstatement as sought in the motion because there would be no utility in hearing the application for constitutional relief on the grounds now sought to be relied upon.  Counsel for the applicant submitted that there are three grounds of review upon the basis of which constitutional writ relief should be granted by the Court.  I shall deal with each of those three grounds separately.

9. The first is that the Tribunal made a jurisdictional error in concluding that the applicant could return to Pakistan and would not suffer persecution if he modified his behaviour.  Reliance was placed upon observations made by Madgwick J in Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132. That case concerned the position of nationals of Burma. In that case the Tribunal had accepted that free expression of political opinion was not tolerated by the Burmese government, and that those actually undertaking such expression were subject to persecution. His Honour considered that, from its reasons, the Tribunal did not appreciate that it was required in those circumstances to consider whether, if the applicants returned to Burma, they would face persecution by the very denial to them of their right to free political expression. His Honour considered that the Tribunal’s failure to apply the law to the applicants claims constituted a constructive failure by the Tribunal to exercise its jurisdiction (see par [26]).

10. The applicant claimed that he was born in Sialkot in Punjab in Pakistan.  He said that his wife, son, parents, and two siblings remain in Pakistan.  He also said that he had returned to Pakistan on three occasions after leaving in 1990 or 1991.  He said he left Pakistan last in August 1997.  He was there for up to two months at that time in the predominantly Sunni village of Sialkot.  He said he left there in 1997 for two reasons; his marriage had broken down and because there were fights between Shi’a Muslims, who lived around the village, and Sunnis from the village, including himself.

11. The Tribunal, in its reasons, recorded that it told the applicant that it seemed that:

    ‘he could go back to Pakistan, not go to Sialkot, live in a city, get a job and not participate in public protests involving Shi’a/Sunni matters and no one would even know he was back in the country.’

    The applicant complains that such an approach constitutes an error of law in that it would require the applicant to modify his behaviour. 

12. However, in its findings and reasons, the Tribunal put the matter differently.  The Tribunal was satisfied that the applicant is a national of Pakistan and a Sunni Muslim.  It was satisfied that the Sipah-e-Sahaba Pakistan (‘SSP’) is a Sunni sectarian group that had been alleged to be involved in terrorist violence, mainly targeting the minority Shi’a community in Pakistan.  The Tribunal accepted that the applicant was briefly an ordinary member of the now banned SSP in the early 1990s but that he played no more active role than becoming a member and making donations on two occasions at that time.  The Tribunal was satisfied that the applicant was not a member of the SSP’s ‘central committee’, as was asserted in written submissions.  The Tribunal was satisfied that the applicant had had no links with the SSP since the early 1990s. 

13. However, the Tribunal accepted that there were some local tensions between Sunni and Shi’a Muslims in and around the village of Sialkot during the 1990s and that the applicant attracted ill-will, both because of his willing participation in fighting with local Shi’a Muslims and particularly because in 1995 he married a woman who a local Shi’a family had wanted their son to marry.  The Tribunal accepted that some of the local Shi’a were supporters of the Tehreek Nifaz Fiqah-e-Jafria (‘TNFJ’), but considered that that support was peripheral to the causes of the problems in the village.

14. The Tribunal considered that it was most likely that villagers supported such groups only briefly.  The Tribunal accepted the applicant's statement at the hearing that around Sialkot there were many Shi’a and the Sunnis had fights with them all the time.  The Tribunal accepted that when the applicant returned to Sialkot in 1997 he was involved in a ‘skirmish’ with local Shi’a in which no-one was seriously injured.  The Tribunal member then said as follows:

    ‘I am satisfied that the chance was remote of his being seriously harmed at the time he left Pakistan in August 1997, given that he resided in his village for up to two months without being harmed at all, and that at the hearing he was unable to identify any particular incident which led him to think he might be seriously harmed. 

    I also consider the chance remote that, if he returned to Pakistan and did not visit Sialkot, the people he claims to fear in the village might attempt to locate him.  I also do not consider they could do so, given the density of the populations in urban areas (for example, Karachi alone has over 5 million inhabitants).  [The applicant] stated that someone in Australia might pass the information to people in Sialkot that he had returned to Pakistan, and they could locate him.  I consider this assertion fanciful.  If he does not give his address to anyone in Australia, the chance is remote that he might be located and seriously harmed, even if local Sunni Moslems were motivated to do this.

    I consider that it would not be unreasonable for [the applicant] to relocate within Pakistan to avoid communal tensions in his village.  He has lived in a large city in Pakistan before, and has also lived abroad for many years.  He is clearly capable of adapting to and settling in new environments. 

    I am also satisfied, and find, that he has access to the protection of the state.  He is a member of the majority religion and, as the evidence from the independent sources illustrates, the Pakistani authorities have taken vigorous steps to control outbreaks of communal violence, and have banned extremist groups from both Shi’a and Sunni communities.  I am satisfied that, if [the applicant] were to seek the protection of the authorities from harm by supporters of the TNFJ, the authorities would be able and willing to provide suitable protection.  He could avail himself of the protection of the State.’

15. I do not consider that a reasonable reading of that passage suggests an erroneous approach on the part of the Tribunal such as was identified by Madgwick J in Win v Minister for Immigration and Multicultural Affairs.  This is not a case where the applicant established that the State prevented him from the free expression of political views.  The Tribunal primarily found that the chance of the applicant being seriously harmed if he returned to Sialkot was remote.  The fact that the applicant participated in fighting with local Shi’a Muslims is not on a par with the circumstances referred to by Madgwick J.  That is to say, there is no suggestion that there would be any harm for the applicant in freely expressing political or religious views. 

16. The suggestion that the applicant could relocate to a place other than Sialkot was an alternative finding by the Tribunal.  That is the second ground upon which the applicant asserts that constitutional writ relief should be given.  The applicant asserts that the observations in the passage that I have cited indicate that the decision was unreasonable in the Wednesbury Corporation sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1947) 45 LGR 635) in that, as the Tribunal found, the applicant has siblings, children, and other relatives in Sialkot.  He asserts that they would sooner or later be in contact with him and that the word would get out to his enemies about his whereabouts.  That is a matter for the Tribunal.  It may be that word might get out that the applicant had returned to Pakistan even though he was not visiting Sialkot.  However, the Tribunal found that it was only a remote chance that the people the applicant claimed to fear might attempt to locate him.  In other words, even though it was possible, the Tribunal concluded that there was no real prospect that they would locate him. 

17. I do not consider that the conclusion by the Tribunal exhibits any unreasonableness such as would attract the principle in the Wednesbury decision.

18. The applicant also contended that there was a further unreasonableness in the Tribunal’s reasoning because there was a contradiction between the conclusion by the Tribunal that the applicant was involved in a skirmish with local Shi’a in which no-one was seriously injured and that there was only a remote change of his being harmed, given that he resided in his village for up to two months without being harmed at all.  I do not consider there is any contradiction at all in the two paragraphs.  There is no suggestion that the applicant was sought out by those he claimed to fear.  The Tribunal found that he willingly participated in fighting with local Shi’a Muslims.  The fact that even then he suffered no harm at all during the period of two months is not inconsistent with the finding that he was involved in the skirmish.  There was no unreasonableness in that conclusion.

19. Finally, the applicant contended that the Tribunal made a jurisdictional error by factually misrepresenting what the applicant said about a threat to him.  However, that assertion was not supported by any evidence and there was no basis upon which that ground could succeed on the material presently available.  I am not persuaded that there would be any utility at all in reinstating the proceeding.  I do not consider, on the material before me, that there is an arguable case that the Tribunal made a jurisdictional error by applying an incorrect principle of law, nor do I consider that the reasons of the Tribunal exhibit Wednesbury unreasonableness. 

20. I observe that even if this application were dismissed, that is not necessarily an end of the matter.  If a proper ground for review is able to be established it may be that the applicant could succeed in his claim for constitutional writ relief.  However, I am not persuaded there is any ground on the material presently before me.  I therefore, propose to dismiss the motion.  The Minister asks for her costs of the motion.  I also propose to order the applicant to pay the costs of the motion and of the application for an extension of time. 

21. However, counsel for the applicant raised a further question, being the costs that Allsop J ordered him to pay on 1 August 2003.  The applicant says that he should not have to bear the Minister's costs of that hearing or some earlier proceeding in circumstances where he knew nothing of it.  However, the reason why he knew nothing of the proceeding appears to be the result of his failure to comply with the rules.  It appears that on 30 December 2002, the applicant lodged a notice of change of address in the High Court.  His new address was a post office box at Strathfield.  That did not comply with the rules; that notice was not served on the Minister, or her solicitors, and no attempt was made to notify the Minister or her solicitors of a new address for the purposes of the proceeding in the High Court.

22. When the matter was remitted to the Federal Court, it is not entirely clear what papers came.  Neither party has put before me the papers in the Federal Court file.  However, the applicant was notified by the High Court by letters addressed to his post office box at Strathfield of a listing of the matter before the High Court on 6 February 2003 and of the orders for remission made on that day. 

23. He says that he heard nothing further until he received a letter from the Minister’s department dated 9 July 2004 asking for payment of costs.  The costs of the application to the High Court and of the hearing on 6 February 2003 are costs that would have been incurred irrespective of whether the applicant had filed a proper address for service or not.  The only costs that could possibly be in issue are the costs before Allsop J.  There is no indication of the additional costs that would have been incurred by the hearing on that day or of the directions hearing before me earlier in 2003. 

24. I am not persuaded that any basis has been established for varying the order made by Allsop J, assuming that question was properly raised by the motion before me.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            20 January 2005

Solicitor for the Applicant:	T. Silva
Counsel for the Respondent:	A. Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 August 2004
Date of Judgment:	3 August 2004