SWRB v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1562

FEDERAL COURT OF AUSTRALIA

SWRB v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1562

Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)

SWRB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SAD 168 of 2004

SELWAY J
15 NOVEMBER 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 168 OF 2004

BETWEEN:	SWRB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	15 NOVEMBER 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application made by the applicant pursuant to s 39B of the Judiciary Act is summarily dismissed pursuant to O 20, r 2 of the Federal Court Rules.

2.The applicant to pay the respondent's costs, save in respect of or in relation to the notice of objection to competency dated 20 September 2004, as to which there will be no order for costs.

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	SAD 168 OF 2004

BETWEEN:	SWRB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SELWAY J
DATE:	15 NOVEMBER 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This purports to be an application under s 39B of the Judiciary Act 1903 (Cth). I will treat it as an application seeking writs of prohibition, mandamus and certiorari, in relation to a decision of the Refugee Review Tribunal (‘the Tribunal’) given on 2 April 2001.

2. The application was made on 23 July 2004.  The Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) has filed an objection to competency and has applied by notice of motion for summary dismissal of the application.  For the reasons given below, the application will be summarily dismissed, as disclosing no cause of action.

3. The applicant arrived in Australia on 20 August 1999. On 7 September 1999 he applied for a protection visa. In order to obtain such a visa, the Minister had to be satisfied that Australia owed protection obligations to the applicant, s 36(2) of the Migration Act 1958 (Cth) (‘the Act’).

4. In general terms, the Minister had to be satisfied that the applicant was a refugee, being 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.’

5. On 18 January 2000 a delegate of the respondent refused the application and on 14 February 2000 the applicant applied to the Tribunal for review of the decision.

6. The applicant is a citizen of India from the Gujarat region.  He is of the Hindu faith.  In his application for a visa and in the evidence he gave to the delegate the applicant claimed that he was a supporter of the Congress Party and claimed to fear persecution by reason of his political opinion from the BJP Party which was then in government in Gujarat.

7. The applicant said that he first came to Australia in July 1999.  He was accompanied by 15 others from the same region in India.  The group’s travel arrangements were made by an agent to whom they paid a considerable amount of money.  The agent promised the group that they would be entitled to enter Australia and to work here once they arrived.  The applicant claims that he was misled by the agent and also by the Australian Embassy in India.  Upon arrival in Australia the group realised that they had been cheated by the agent.  The group had been granted Olympic support visas with no work rights in Australia.  The applicant returned to India on 29 July 1999.

8. The applicant claims that he discovered on his return to India that the whole thing had been orchestrated by the BJP as an attempt either to rob the applicant or to get him out of India.  On his return the applicant was arrested and imprisoned for one week, before being bailed with reporting conditions.  He said that the police arrested him on a daily basis.  He said that he was beaten in a police station on one occasion.  He said that the police were trying to get him to confess that he was involved in the fraud relating to his and the group's passage to Australia. 

9. He said there was political motivation behind his arrest and persecution.  He said no action was taken against the agent.  He claimed that by reason of that persecution he again left India for Australia on 19 August 1999.

10. On the basis of these facts, the applicant claims to have a well-founded fear of persecution from the Indian government or the State government of Gujarat on the basis of his political beliefs. 

11. Having sought a review from the Tribunal, on 12 February 2001 the Tribunal wrote to the applicant advising him that it had looked at the material relating to his application but was not prepared to make a favourable decision on that information alone.  The Tribunal invited the applicant to attend a hearing before it on 26 March 2001.  The letter of 12 February 2001 was addressed to the applicant at the address provided in his application to the Tribunal.  That was the only address provided in his application.  The applicant did not nominate a lawyer or migration agent in that application.  The letter of 12 February 2001 was returned to the Tribunal marked ‘return to sender’.

12. On 21 March 2001 the Department for Immigration and Multicultural and Indigenous Affairs (‘DIMIA’) advised the Tribunal that it had no more recent address for the applicant.  The applicant failed to attend the scheduled hearing on 26 March 2001.  The applicant did not respond to the Tribunal invitation and failed to attend at the scheduled date and time.  Accordingly, the Tribunal proceeded to hear the matter without taking any further action to ascertain the applicant’s whereabouts.  On 5 April 2001, the Tribunal sent a further letter to the applicant, advising that the Tribunal’s decision would be handed down on 26 April 2001.  That letter was returned to the Tribunal also marked ‘return to sender’.  On 26 April 2001 the tribunal handed down its decision affirming the decision of the delegate.  On the same day the Tribunal sent a copy of its decision to the applicant at the address he had provided.  That letter was also return to the Tribunal marked ‘return to sender’.

13. The applicant has informed me today that he became aware of the Tribunal’s decision in June 2001.  He has not informed me how he became aware of it.

14. In sending the aforesaid letters to the applicant, the Tribunal was acting in accordance with the procedure specified in s 441A(4) of the Act. For the purpose of the act, the applicant is taken to have received the letter seven working days after the date upon which it was posted. See s 441C(4) of the Act. In any event, having no other address at which the Tribunal could notify the applicant, the Tribunal had done everything it could reasonably do to afford the applicant a fair hearing.

15. The Tribunal found that as the applicant's claims were so general and lacking in detail it was unable to establish the relevant facts.  In particular, the Tribunal said that it was unable to establish the nature of the applicant’s association with the Congress Party, the charges that were laid resulting in him being imprisoned, the nature of the police harassment he claimed to have suffered, the details of his alleged physical abuse at the hands of the police or how he was able to depart from India using his own passport whilst on bail with reporting conditions.  The Tribunal found that because all of these questions were left unanswered it could not be satisfied on the evidence before it that the applicant had a well‑founded fear of persecution for a convention reason.

16. The jurisdiction of this Court to interfere with a decision of the Tribunal only arises upon the identification of some jurisdictional error in the process, reasoning or decision of the Tribunal.  There is nothing in the application before me that identifies any ground of legal error much less jurisdictional error.  The applicant, who is unrepresented, has informed me of his various grounds of complaint.  None of those identify a ground of jurisdictional error.  So far as I can see, there is nothing apparent in the reasons of the Tribunal which suggests that it has made a jurisdictional error.

17. In all the circumstances, the respondent must succeed in its application for summary dismissal of the application pursuant to O 20, r 2 of the Federal Court Rules.  Further, the application made by the applicant was filed more than three years after the decision was given by the Tribunal.  There is no time limit imposed by the Federal Court Rules in relation to applications in this Court for the statutory writs.  Nevertheless, the remedies are discretionary and can be refused for delay. 

18. In my view, delay in this case is sufficiently long that the remedies would necessarily be refused absent some extraordinary justification, but no such justification is given here.  The only excuse the applicant puts forward is his ignorance of the procedures for review.  In these circumstances, the proceedings should also be struck out under O 20, r 2 as being vexatious by reasons of delay.

19. Finally, the Minister has also objected to the competency of the application. That is on the basis of the decision as a privative clause decision for the purposes of ss 474 and 477 of the Act. Having reached the view that there is no jurisdictional error, then it follows that the decision is a privative clause decision. On the other hand, the application must be dismissed in any event. The objection to competency adds nothing to the issues needing resolution.

    In all the circumstances, the order of the Court is:

    1.The application made by the applicant pursuant to s 39B of the Judiciary Act is summarily dismissed pursuant to O 20, r 2 of the Federal Court Rules.

    2.The applicant to pay the respondent's costs, save in respect of or in relation to the notice of objection to competency dated 20 September 2004, as to which there will be no order for costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated:            1 December 2004

Counsel for the Applicant:	Applicant appeared in person
Counsel for the Respondent:	C White
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	15 November 2004
Date of Judgment:	15 November 2004