Applicants S252 of 2003 v Refugee Review Tribunal

Federal Court of Australia|2006-04-11|Before: Einfeld J, Mansfield JJ, Edmonds J

Introduction 1 These proceedings were commenced by the filing of a draft order nisi in the High Court of Australia on 30 May 2003. The application for an order nisi was subsequently remitted to this Court. 2 An affidavit was also filed in the High Court on 30 May 2003 and a document entitled 'Applicant's submissions' filed in this Court on 10 December 2004. I understand that these documents set out the case which the applicants seek to advance. 3 There is no reason why the Court should not proceed under O 51A r 5 to consider at the same time the issues whether an order nisi should be granted and whether, if such an order is granted, it should be made absolute.

Background 4 The applicants - husband, wife and child - are citizens of India who arrived in Australia on 19 April 1998. On 19 May 1998 combined applications for a protection visa were lodged with the Department of Immigration and Multicultural Affairs and were refused by a delegate of the Minister on 27 May 1998. 5 The applicants applied to the Refugee Review Tribunal ('the Tribunal') for review of that decision on 12 August 1999. The Tribunal affirmed the decision not to grant protection visas to the applicants. 6 The Tribunal identified the specific claims of the applicant husband ('the applicant') as follows: (a) That he feared harm from Muslims because of his Christian religion; and (b) that he feared harm from the Shiv Sena Party ('the SSP') through the police, because he refused to participate further in SSP activities after he became engaged to marry in November 1995. 7 The Tribunal accepted the applicant's claim that he had been an active member of the SSP until his engagement to marry but found there was nothing more than a remote possibility that he would face harm from Muslims in the future and that his claim of harassment by the SSP through the police was a fabrication. The Tribunal was not satisfied that the applicant or his family were of adverse interest to the Indian authorities or at risk from the SSP. 8 An application for review of this decision was subsequently filed in this Court and on 17 December 1999, the matter came before Einfeld J for hearing. In his reasons for judgment given ex tempore, Einfeld J dismissed the application, finding the grounds for judicial review could not be made out: See [1999] FCA 1849. 9 The applicants appealed to the Full Court. On 26 May 2000, Kiefel, North and Mansfield JJ dismissed the appeal, finding that the way in which the Tribunal dealt with the applicants' claims was not shown to be infected by reviewable error: See [2000] FCA 714. 10 On 30 May 2003, the present application for an order nisi was filed in the High Court of Australia and was later remitted to this Court.

The grounds of the Application 11 The applicant pleads three matters in the draft order nisi: '1. The [Tribunal] did not make the decision in accordance with the principles of natural justice/procedural fairness in deciding [the applicants'] application. 2. The [Tribunal] committed a jurisdictional error by failure to accord with procedural fairness according to Lie v Refugee Review Tribunal. 3. The [Tribunal] failed to exercise the jurisdiction and erred in law.' 12 On 10 December 2004, a document entitled 'Applicant's submissions' was filed which asserted that the applicant was - '[D]enied natural justice in as much as the Tribunal did not refer the applicant to the country information from which it drew adverse inference against the applicant and did not give the applicant an opportunity to respond to the information from which it drew critical adverse inferences.' 13 The applicant also submitted that the Tribunal: '[C]ommitted a jurisdictional error ... as it misunderstood the real basis of his fear of persecution' and did not deal with the claims on the basis on which they were put.

The Hearing 14 On the hearing of his application, the applicant did not seek to advance any further submissions in clarification or elaboration of his written submissions as filed.

Conclusions 15 With regard to matters pleaded in 1 and 3 as set out in [11] supra, no particulars have been provided and without more these grounds cannot succeed. The reasons of the Tribunal have been thoroughly considered by a single Judge and a Full Court and found to be free of jurisdictional error. 16 To the extent the applicants make reference to the matter of Muin and Lie (see (2002) 190 ALR 601), this ground is no more than a mere assertion in the absence of any agreed facts or documents being specified. In any event, the only documentary material referred to in the decision of the Tribunal is country information and, in that context, the only material expressly relied upon concerned the existence of airport security systems which made the likelihood of the applicant leaving without notice remote. This was a matter discussed with the applicant during the hearing before the Tribunal. 17 With regard to the claim that the applicants were denied an opportunity to comment on country information, the Tribunal did not err in this regard. The information referred to falls within the exception to s 424A(1) of the Migration Act 1958 (Cth) contained in s 424A(3)(a). In any event, the decision records that the country information regarding security systems at airports was discussed with the applicant during the hearing. 18 With regard to the submission that the Tribunal did not deal with the applicants' claims, this cannot be sustained for the reasons set out in the earlier decisions of this Court. It is clear the Tribunal considered the applicant's claimed fears notwithstanding the limited factual nature of the claims made by him.

19 The application for an order nisi must be refused. The applicants must pay the second respondent's costs. I certify that the preceding nineteen (19 numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Solicitor for the Applicants: The applicant appeared in person

Solicitor for the First and Second Australian Government Solicitor Respondents:

Date of Hearing: 14 March 2006 and 4 April 2006

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