FEDERAL COURT OF AUSTRALIA M139 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1600 MIGRATION – application for issue of writs of prohibition and certiorari against Refugee Review Tribunal. Migration Act 1958 (Cth) Muin v Refugee Review Tribunal (2002) 190 ALR 601 APPLICANT M139 of 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS V 731 of 2003 GOLDBERG J 17 DECEMBER 2003 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 731 of 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: M139 of 2003 Applicant AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS First Respondent JOHN VRACHNAS SITTING AS THE REFUGEE REVIEW TRIBUNAL ADOLFO GENTILE IN HIS CAPACITY AS SENIOR MEMBER OF THE REFUGEE REVIEW TRIBUNAL Second Respondents JUDGE: GOLDBERG J DATE OF ORDER: 17 DECEMBER 2003 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application for an order nisi for the issue of a writ of certiorari and a writ of prohibition be dismissed. 2. The applicant pay the respondent's costs of and incidental to the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 731 of 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: M139 of 2003 Applicant AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS First Respondent JOHN VRACHNAS SITTING AS THE REFUGEE REVIEW TRIBUNAL ADOLFO GENTILE IN HIS CAPACITY AS SENIOR MEMBER OF THE REFUGEE REVIEW TRIBUNAL Second Respondents JUDGE: GOLDBERG J DATE: 17 DECEMBER 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 30 June 1997, the applicant, who is Sri Lankan, applied for a protection visa pursuant to the provisions of the Migration Act 1958 (Cth). On 7 August 1997 his application was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") and he sought a review of that decision in the Refugee Review Tribunal ("the Tribunal"). Although invited, the applicant did not attend the hearing before the Tribunal but rather sent a letter dated 28 September 1999 to the Tribunal which was in the following terms: "… I am aware that for the claim for mistreatment to be recognised under the UN Convention for Refugees it must be on one of the five grounds outlined in the Convention. As you are aware from the documentation provided and from the decision by DIMA, both myself and my defacto wife are fearful of our lives because of threats made by my ex‑wife and her friends. The Immigration Department made it clear that I may have suffered physical and emotional abuse at the hands of my ex‑wife, but, the delegate concluded that it was not on account of being a member of a particular social group (divorced men subject to violence). This is because the agent of persecution in this instance is my ex‑wife and therefore it is very clear that it is not part of a Convention ground and I want to seek the Minister's intervention under section 417 on humanitarian grounds. I strongly believe that my case will fit into the Minister's guidelines because my life and my defacto wife's life is clearly in danger. It is for that reason that I wish to cancel the hearing at the Tribunal on Thursday, the 30 September 1999. I understand the Member of the Tribunal can only consider and make a decision in respect of the Refugee Convention. However, given the evidence that I have already provided, there appears to be nothing stopping the Member forming an opinion as to whether or not, based on the evidence that has been provided, the Minister should consider intervening under humanitarian grounds. …" 2 On 15 October 1999, the Tribunal affirmed the decision of the delegate of the Minister not to grant a protection visa to the applicant. On 19 September 2001 the applicant joined the Muin representative proceedings in the High Court (Muin v Refugee Review Tribunal (2002) 190 ALR 601), and was subsequently given special leave to file an application in the High Court before 31 May 2003. Accordingly the applicant applied to the High Court for the issue of writs of prohibition and certiorari seeking to set aside the decision of the Tribunal. On 25 November 2002 the High Court remitted the matter to this Court as part of a remittal of all represented parties in the Muin matter. The draft order nisi filed by the applicant did not disclose any grounds of error of the Tribunal. 3 In the course of oral submissions the applicant, who appeared without legal representation, agreed that he had accepted in the proceeding before the Tribunal that he did not qualify to be a refugee. The applicant said that he feared that if he returned to Sri Lanka his former wife would kill him. Although the applicant had adopted the procedure of seeking to challenge the decision of the Tribunal, his application was misconceived because he accepted that he was not a refugee under the provisions of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 ("the Convention"). Although he feared for his safety because of his former wife, it was not on the basis of his belonging to a particular social group. 4 The applicant was unable to point to any error made by the Tribunal. This is not surprising in light of the fact that the Tribunal clearly made no such error, particularly having regard to the acceptance by the applicant that he did not qualify for refugee status under the Convention. 5 As the application is based upon a false foundation it should be dismissed with costs. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. Associate: Dated: 21 January 2004 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr G Carroll Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 17 December 2003 Date of Judgment: 17 December 2003