S259 of 2003 v Refugee Review Tribunal [2005] FCA 1879 (8 December 2005)

Last Updated: 22 December 2005

FEDERAL COURT OF AUSTRALIA

S259 of 2003 v Refugee Review Tribunal [2005] FCA 1879

S259 OF 2003 v REFUGEE REVIEW TRIBUNAL & ANOR

NSD 2151/2005

GRAHAM J

8 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY		NSD 2151 OF 2005
BETWEEN:	S259 OF 2003 APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT

JUDGE:	GRAHAM J
DATE OF ORDER:	8 DECEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The notice of motion filed 8 November 2005 be dismissed.

2. The Applicant pay the Second Respondent’s costs fixed in the sum of $1200.

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 2151 OF 2005
BETWEEN:	S259 OF 2003 APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT

JUDGE:	GRAHAM J
DATE:	8 DECEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 What is presently before the court is a notice of motion filed 8 November 2005 in which the Applicant seeks an extension of time within which to bring an application for leave to appeal and, if that extension is granted, an application for leave to appeal from the judgment of Wilcox J of 10 October 2005. When the matter was called shortly after 10.15 am, the Applicant did not appear. However, at 10.32 am he did appear and he has had an opportunity to present his case in support of his motion.

2 The Applicant was born in China on 8 June 1962. He arrived in Australia on 11 March 1997 and on or about 13 April 1999 he applied for a Protection (Class XA) Visa. That application was refused by a delegate of the Minister on 24 May 1999 whereupon the Applicant applied to the Refugee Review Tribunal ("the Tribunal") for a review of the Minister's delegate's decision. The Tribunal wrote to the Applicant indicating that it was unable to make a decision in his favour on the material which it had before it and invited him to attend a hearing on 29 October 1999.

3 The Applicant did not attend that hearing and it would appear that on or about 23 December 1999, the Tribunal affirmed the decision of the Minister's delegate to refuse the Applicant a protection visa. The Applicant informs me that in relation to his application for review he was assisted by a migration agent. He says that whilst he received a letter telling him of the proposed hearing in the Tribunal, he did not attend the proposed hearing because he did not understand English.

4 He says, however, that he told his migration agent everything that he wanted to say and that his migration agent explained to him what had been included in the Application for review in English before the applicant signed the document.

5 On 30 May 2003, the Applicant filed a draft order nisi in the High Court seeking the issue of constitutional writs in respect of the decision of the Tribunal. He also filed an extensive affidavit in the High Court on the same day. The Applicant says that he was assisted by a migration agent and a solicitor in the preparation of that affidavit. The affidavit annexes, amongst other things, the decision of the Tribunal which the Applicant challenges.

6 On 12 November 2004, the court wrote to the Applicant advising him that his application for constitutional writ relief had been remitted by the High Court to this court and that the court proposed to deal with his application on the papers. The Applicant was invited to present any written submissions on which he may wish to rely before the matter was considered in addition to the material already on the High Court file. In response to that invitation, the Applicant filed an affidavit in this court on 10 December 2004, which included the following:

"I believe that there is an arguable case for the court to make an order nisi. I am asking the court sincerely:-

1. To remit the case back to RRT for re-consideration according to law.

2. To set aside the RRT refusal decision.

3. To schedule a proper hearing at this court if the court is unable to make an order nisi in my favour - base on paper available at hand.

4. To make any order nisi the court deems fit."

7 The application for an order nisi was considered by Wilcox J who refused the Applicant's application. His Honour said in his reasons for judgment:

"I have considered the papers filed in this case including the applicant’s submission. The submission does not identify a ground of review. Having considered the decision of the Refugee Review Tribunal I do not think that any ground is available to the applicant. Accordingly it would be inappropriate to grant an order nisi."

8 The Applicant apparently claimed that he feared persecution on political grounds in a Chinese court as a conspirator with a colleague of his, were he to return to China. The colleague referred to had, according to the Applicant, been the subject of some claim that he had been involved in anti-government activities in Australia. The Tribunal said in its reasons:

"... the circumstances on which [the applicant] is relying for his claim for protection as a refugee are so general and lacking in detail that I am unable to establish the relevant facts ...

Taking his claims at face value it is simply not clear whether the feared persecution and dismissal (from employment) would be political persecution or whether, for example, it might be legitimate response to a failure to properly supervise his subordinate ...

Without the benefit of an oral hearing [the applicant] has not had the opportunity of providing further information in support of his claims. Neither have I been able to explore these aspects of his claims with him. A number of relevant questions are therefore left unanswered. I am not satisfied on the evidence before me that [the applicant] has a well founded fear of persecution within the meaning of the Convention."

9 On the present application the Applicant relevantly said:

2. After I received the "Reasons for Judgment" with a covering letter from Judge Wilcox J I kept ringing them almost every day. Unfortunately the Judge and his associate did not return to Sydney from Western Australia until last Friday 4 November 2005. ...

3. I was quite sure that I had 28 days to appeal. I was not aware of the 21 day period until 4 November 2004 (sic)."

10 When I asked the Applicant why he should be granted an extension of time and leave to appeal from the judgment of Wilcox J he responded "The case is very important to me".

11 When I invited the Applicant to indicate the manner in which he contended the Tribunal had committed a jurisdictional error his response was to the effect that he did not understand English at the time.

12 When asked was there anything else he wanted to say he said "I hope to be able to stay in Australia".

13 I am unable to discern any jurisdictional error on the part of the Tribunal. For the relief which the Applicant seeks to be granted, it would be necessary to establish that the decision of the Primary Judge was attended with sufficient doubt to warrant its reconsideration and that substantial injustice would result if the relief sought were refused. There is not one scintilla of evidence nor has anything been urged upon me in argument, to suggest that this is the case. In these circumstances, the notice of motion filed 8 November 2005 should be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated: 21 December 2005

The Applicant appeared on person

Solicitor for the Respondent:	A J Crockett of Australian Government Solicitor
Date of Hearing:	8 December 2005
Date of Judgment:	8 December 2005