FEDERAL COURT OF AUSTRALIA Applicant A100/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 405 APPLICANT A100/2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, LUKE HARDY, MEMBER, REFUGEE REVIEW TRIBUNAL AND PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL No S 670 of 2003 FINN J ADELAIDE 5 APRIL 2004 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 670 OF 2003 BETWEEN: APPLICANT A100/2003 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT LUKE HARDY, MEMBER, REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: FINN J DATE OF ORDER: 5 APRIL 2004 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the first respondent's costs of 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 SOUTH AUSTRALIA DISTRICT REGISTRY S 670 OF 2003 BETWEEN: APPLICANT A100/2003 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT LUKE HARDY, MEMBER, REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: FINN J DATE: 5 APRIL 2004 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is a matter which counsel for the applicant concedes must be dismissed. Relief was sought under s 75(v) of the Constitution and s 39B of the Judiciary Act 1903 (Cth) against a decision of the Refugee Review Tribunal not to grant the applicant a protection visa under the Migration Act 1958 (Cth). 2 The applicant is an Indian citizen and a Muslim. He lodged an application for a Protection (Class XA) Visa on 19 November 2001 claiming a fear of persecution by reason of his religion, race and political opinion. In short, he claimed to be a member of the DMK Party (which is a political party in Tamil Nadu) and to be a "district secretary" of a branch of that party between 1994 and 1997. He claimed he had become the target of violence from the rival ADMK Party in Tamil Nadu and had also become a target of inter-religious conflict within the DMK. His application was dismissed by the Tribunal on three grounds. The first was that his essential claims were not believed. The Tribunal gave reasons why this was so. Secondly, he had done little to attempt to relocate outside of Tamil Nadu in spite of claiming that his life was in danger there. The Tribunal noted in this regard that independent evidence showed that he was free to relocate to states where there were established Muslim majorities if he wished. Thirdly, in relation to the claimed inter-religious conflict within the DMK, the Tribunal accepted that there were tensions between Hindu and Muslim members "but could find no evidence of purges and persecutions within the party at the time". It found in any event that those tensions had died down. 3 The present appeal relates to the third of the above matters. It is claimed that the Tribunal did not put to the applicant its finding on the matter. In so doing it is alleged it failed to accord him procedural fairness and thus committed a jurisdictional error. 4 The appeal book in this matter was filed before the amended application which raised this ground was filed and served. It does not contain a transcript of what transpired when evidence was given by the applicant to the Tribunal, let alone what was put to the applicant about the deficiencies or otherwise of his case relating to this claim. Equally the statement of claim made by the applicant accompanying his application for a visa is quite illegible so that for present purposes I have no detail of the particulars of the claim he made nor of the treatment given to it at the hearing before the Tribunal. On 19 February 2004 Mansfield J made orders that the applicant file and serve by 5 March 2004 such further affidavit material as he proposed to rely upon at the hearing of this matter. Counsel for the applicant again conceded that no such material has been put before the court. 5 As noted at the outset, counsel for the applicant conceded (1) that significant adverse credibility findings were made against the applicant and (2) that notwithstanding no further material was placed before the court he was nonetheless instructed to prosecute the appeal but (3) in light of the submissions made by the respondent the appeal should be dismissed. Needless to say I consider this to be an unsatisfactory state of affairs. 6 In the absence of evidence before me I am in no position to say whether or not there has been a denial of natural justice in this matter. I equally am not in a position to say whether the Tribunal's comments as to there being no evidence of purges and persecutions within the DMK at the time was simply a statement exposing deficiencies in the material put forward by the applicant. If it amounted to this and no more then no issue of unfairness would arise: cf WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276; as the case would not be one of there being "adverse information" which ought be disclosed to the applicant; see NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494 at [15]. In this state of affairs I can only say that the applicant has failed to establish that there was a denial of procedural fairness and accordingly I have dismissed the application with costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 6 April 2004 Counsel for the Applicant: M W Clisby Solicitor for the Applicant: Mark Clisby Counsel for the First Respondent: K Tredrea Solicitor for the First Respondent: Sparke Helmore Date of Hearing: 5 April 2004 Date of Judgment: 5 April 2004