STWB v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 858

FEDERAL COURT OF AUSTRALIA

STWB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 858

STWB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 32 of 2004

SELWAY J
31 MAY 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 32 OF 2004

BETWEEN:

STWB
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

PHILIPPA MCINTOSH
MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

SELWAY J

DATE OF ORDER:

31 MAY 2004

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        That the application be dismissed.

2.        The applicant to pay the costs of the first respondent.

3.        No order for costs in relation to the second and third respondents.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 32 OF 2004

BETWEEN:

STWB
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

PHILIPPA MCINTOSH
MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	SELWAY J
DATE:	31 MAY 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for writs of prohibition, certiorari, mandamus and/or injunctions arising from a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 9 October 2001 affirming a decision not to grant the applicant a protection visa.

2. The applicant, who is a citizen of India, arrived in Australia on 11 August 1999.  On 3 September 1999 he lodged an application for a protection visa.  In order to obtain such a visa, it was necessary for the applicant to satisfy the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) that he was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol.

3. In general terms, the applicant needed to satisfy the Minister that he was a person who:

   ‘… owing to a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’

4. On 25 November 1999 a delegate of the Minister refused to grant a protection visa and on 7 December 1999 the applicant applied for review of that decision by the Tribunal.  The basis of the applicant’s claim was described by the Tribunal as follows:

   ‘In written submissions the [applicant] claimed that he was a left‑handed bowler in the game of cricket and had played for various clubs in India.  He claimed that he had a good career ahead of him but that, because he was a Roman Catholic, Hindu members of his club in Kerala had told him that India belonged to Hindus and as a Christian he should not try to gain prominence in sport.  In 1998 he was badly injured during an assault by members of the RSS during a cricket match in Mangalore in Karnataka state.  The police were told but took no action.  After this other professional clubs did not want him to play for them.  He “could have survived” if he was not prominent in his career as a fast cricket bowler.  He returned to his home town of Chalakkudy and began to play cricket with small clubs there.  In February 1999 RSS party members attacked him and broke his left arm.  He left for Bombay and began playing for small clubs.  In April 1999 he was attacked at his residence.  He realised that the party Shivsena had carried out the attack under the instruction of the RSS.  He went back to Mangalore and joined the Karawali Cricket Club.  Through them he tried to go for training in Australia.  He did not tell them the real purpose was to take refuge.  He could not join the first group of players who left for Australia in May 1999.  He came later to get away from the discriminatory politics of caste and religion.’

5. The Tribunal rejected the claim on two bases:  first, because it did not accept his claims that he suffered the persecution he alleged because of his Christian religion; second, because it did not accept that the government authorities in India would not afford him adequate protection.

6. The applicant claims that he was not afforded a fair hearing by the Tribunal.  He says that the Tribunal did not give him an adequate opportunity to present his case.  On the facts of this particular case, the claim is plainly untenable.  Those facts are not relevantly in dispute and can be summarised as follows:

   (a)The hearing was initially set down for 27 August 2001.  On 26 August 2001 the applicant requested that the hearing be adjourned to enable him to obtain further information.  That request was acceded to and it was then relisted for 30 August 2001 (I note that the reasons of the Tribunal, apparently in error, refer to the hearing having taken place on 27 August 2001).

   (b)The applicant claimed at the hearing that he was seeking documents to support his claim.  The applicant advised the Tribunal that he could submit material about his claim by 7 September 2001.  The Tribunal advised the applicant that he could have 21 days in which to obtain and submit his supporting documentation; that is, until Monday, 17 September 2001.

   (c)The applicant did not provide any further material on or before 17 September 2001, nor did he request any opportunity to provide any further documents after that date.

   (d)Under cover of a letter dated 25 September 2001, the applicant submitted a large bundle of documents which the applicant wished the Tribunal to consider.  The Tribunal received those documents and considered them.

   (e)On 25 September 2001 the applicant also requested a further month in which to submit further documents.  The Tribunal made no response to that.

7. It is clear from the Tribunal’s decision that the decision was signed and dated 9 October 2001.  However, it is also clear that the Tribunal decision was not handed down until 6 November 2001.  Under the Migration Act 1958 (Cth) (‘the Act’), the date of the decision is the date that it is handed down, not the date that it is signed: see s 430B(4) of the Act. In my view, it was open to the Tribunal to have varied the decision that it made between 9 October and 6 November. In the result, then, the date of the decision was six weeks after the date requested by the applicant to provide further information. The applicant did not provide any further documents to the RRT within that period or at all.

8. In these circumstances, it is perfectly clear that the applicant was not denied procedural fairness and, of course, even if he was, the procedural fairness did not go to the issue of state protection, which by itself was conclusive.  It follows that this application must be dismissed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated:             2 July 2004

Counsel for the Applicant:	M Clisby
Solicitor for the Applicant:	M W Clisby
Counsel for the First Respondent:	K Tredrea
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second and Third Respondents:	No appearance for the Second and Third Respondents
Date of Hearing:	31 May 2004
Date of Judgment:	31 May 2004