Applicant S 494 of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCA 1186

FEDERAL COURT OF AUSTRALIA

Applicant S 494 of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCA 1186 Federal Court Rules, O 32 r 2(1)(d), O 51A r 2A. Dinnison v Commonwealth of Australia (1997) 143 ALR 635 applied Re Minister for Immigration and Multicultural Affairs; Ex parte "A", (2001) 185 ALR 489 applied S321 of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 938 applied APPLICANT S 494 of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N374 of 2003 JACOBSON J 16 OCTOBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N374 OF 2003

BETWEEN: APPLICANT S 494 of 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 16 OCTOBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The order nisi is refused. 2. The Applicant pay the Respondent's costs, including costs incurred in the High Court of Australia. 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 N374 of 2003

BETWEEN: APPLICANT S 494 OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE: 16 OCTOBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This matter was listed for hearing before me this morning, but the Applicant has failed to appear. This is not the first time in the history of these proceedings that the Applicant has failed to appear before a judge of this court. 2 Mr Bromwich, of counsel, who appears for the Minister, asks me to proceed with the hearing generally under Order 32 Rule 2(1)(d) and to refuse the relief which is sought. That seems to me to be the appropriate course to follow. 3 The application which is before me for hearing, is a claim for constitutional writs. The application was filed in the High Court on 20 December 2002. On that date the Applicant filed a draft order nisi seeking an order that the Minister show cause why writs of mandamus, certiorari and prohibition should not be issued. 4 Three grounds were stated in the draft order. The first ground is that "the Honourable Judges" erred in a decision because Australia is obliged to provide protection to people who have a well founded fear of prosecution. The second ground is that the Applicant is a Pakistani Muslim who submits that he is entitled to claim refugee status. The third claim is that in Pakistan he received a number of threats against his life and that he fears for his own safety and for that of his family if he returns to Pakistan. 5 It seems to me that none of these grounds reveals any reasonably arguable case for the issue of constitutional writs. Nevertheless, I will set out the background to the application for the purpose of completing the history of the matter. 6 The Applicant is a citizen of Pakistan. He arrived in Australia as a visitor in January 1992. Over 7 years later on 8 April 1999, he applied for a protection visa. His application was refused by a delegate of the Minister on 29 April 1999. 7 The Applicant applied for review to the Refugee Review Tribunal ("RRT"). On 28 February 2002, the RRT affirmed the decision of the delegate not to grant a protection visa. 8 The Applicant claimed in his application to the RRT, that he was a member of the Pakistan Peoples Party ("PPP"), and that he had a well founded fear of persecution by reason of that membership. He claimed to have been in charge of a young group of supporters, and that he had held the position of secretary of the Party. He claimed that if he returned to Pakistan he would be killed or put in gaol, and he said that no one would protect him. 9 The RRT did not find the Applicant to be a credible witness. It did not accept that he was involved with the PPP when he lived in Pakistan, nor did it accept that he would be involved with the PPP if he returned to Pakistan. 10 The RRT found there was nothing in the evidence before it to suggest that the Applicant had a well founded fear of persecution by reason of his involvement in the PPP. It found that there was nothing in the independent evidence available to it to support the Applicant's claims that members of the PPP had, in the past, been killed or gaoled in Pakistan by reason of their involvement in the PPP. 11 The RRT noted that the Applicant had not claimed that he feared being persecuted by reason of his Punjabi ethnicity and it is stated, once again, that there was nothing in the independent evidence available to the RRT which would suggest that there was a real chance that the Applicant would be persecuted by reason of his Punjabi ethnicity. 12 The Applicant sought judicial review in this Court. He failed to appear when the matter was listed before Moore J on 14 June 2002. His Honour dismissed the application pursuant to Order 32 Rule 2(1)(c). 13 The Applicant then filed what purported to be a notice of appeal, which came on for hearing before a Full Court on 27 November 2002. The judgment of the Court was delivered by Sackville J, with whom Whitlam and Conti JJ agreed. 14 Sackville J observed that since the orders of the primary Judge were interlocutory, leave to appeal was required from the decision. 15 His Honour observed that the Appellant declined the presiding Judge's invitation to make oral submissions in support of the appeal and, accordingly, no explanation for the Appellant's failure to appear before his Honour was provided to the Full Court. 16 His Honour found that the Appellant had not shown that he had reasonable prospects of success should leave to appeal be granted nor, as his Honour said, was any acceptable explanation given for the Appellant's failure to appear at the hearing before Moore J. Accordingly, leave to appeal was refused. 17 It is plain that I have power to apply the provisions of O 32 r 2(1)(d). Although the matter was remitted to this Court by an order made by Gaudron J on 6 February 2003, the decision of Foster J in Dinnison v Commonwealth of Australia (1997) 143 ALR 635 at 639 is authority for the proposition that once the remitter has taken effect, the proceedings have no further connection with the High Court. Accordingly, the rules of the Federal Court apply. 18 It appears that for more abundant precaution, the rules of this Court have made provision for this situation in O 51A r 2A notwithstanding that such a rule may have been unnecessary in light of Foster J's remarks in Dinnison. 19 The decision of Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte "A", (2001) 185 ALR 489 at [25] is authority for a proposition which is fairly plain, namely, that in order to obtain an order nisi, the Applicant must establish the existence of a reasonably arguable case. 20 Neither the draft order nisi filed by the Applicant nor the supporting affidavit identifies anything which could remotely resemble jurisdictional error nor does it identify any error by the RRT. In my view, it would be open to treat this application as an abuse of process. However, in the circumstances it is sufficient for me to say that no arguable case for relief has been demonstrated. Accordingly, the appropriate relief is to refuse the application for an order nisi; see S321 of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 938 (per Allsop J). 21 In that case, his Honour extended the time for filing an application for leave to appeal against the decision to a period of 21 days after the date of his Honour's decision. Here such an order would be entirely inappropriate and I would not extend time for the filing of any application for leave to appeal against my judgment. 22 Accordingly, the order of the Court will be that the order nisi is refused, with costs, including costs incurred in the High Court of Australia. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.