Applicant S1149 of 2003 v The Refugee Review Tribunal [2004] FCA 580

FEDERAL COURT OF AUSTRALIA

Applicant S1149 of 2003 v The Refugee Review Tribunal [2004] FCA 580 APPLICANT S1149 of 2003 v THE REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N327 of 2004 JACOBSON J 4 MAY 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N327 of 2004

BETWEEN: APPLICANT S1149 of 2003

APPLICANT

AND: THE REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SECOND RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 4 MAY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondents' costs of the application in an amount to be taxed or assessed or as agreed between the parties.

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 N327 of 2004

BETWEEN: APPLICANT S1149 of 2003

APPLICANT

AND: THE REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SECOND RESPONDENT

JUDGE: JACOBSON J

DATE: 4 MAY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is one of six applications for leave to appeal against the judgment of Emmett J given on 20 February 2004 refusing to grant an order nisi. The application was filed out of time on 11 March 2004. No application for an extension of time was filed but I proceed on the footing that the application is to be treated as an application for an extension of time. I do not decide the matter against the applicant upon the basis of any delay in bringing the application. 2 The relevant background to the proceedings and the reasons why his Honour refused to make an order nisi is referred to in my judgment in Applicant S1198 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 577. 3 The applicant filed an affidavit in support of the application. The affidavit stated that the decision made by his Honour was made without hearing the applicant and that this had caused him substantial injustice. He said in his affidavit that the denial of a hearing was a breach of natural justice, procedurally unfair and biased. 4 He said that his case was the same as that which was considered by the High Court in the proceedings in Muin v The Refugee Review Tribunal & Ors, S36 of 1999 ("Muin Class Action") and Nancy Lie v The Refugee Review Tribunal & Ors, S89 of 1999 ("Lie Class Action"). 5 The applicant appeared before me in person. He handed me detailed written submissions and he also addressed me at some length. His written submissions and oral address were clear and succinct. Nevertheless, having considered the matter, I have come to the view that I must dismiss the application. 6 The applicant in his written submissions said that he is a medical technologist who was a member of the Lie Class Action. 7 He submitted that the decision of Emmett J to refuse to grant an order nisi was made without a hearing and that it involved a miscarriage of justice. He said that the decision was made arbitrarily and that it did not involve the weighing of various competing factors. He submitted that it was inconsistent with public policy and he referred me to an early decision of the High Court in Wilkinson v Osborne (1915) 21 CLR 89 ("Wilkinson") at 97. 8 The applicant also submitted in his written submissions that his case was the same as the claims which had been made by the members of the Lie Class Action in the High Court and that other members of the "class" had been given a chance to be heard. He submitted that he should have been given the same opportunity and that a denial of his claim constituted a breach of the rules of procedural fairness. 9 He submitted that the history of his case disclosed that he had been denied justice, that earlier decisions were biased, prejudiced and procedurally unfair. He said in particular that this was so in the case of the decision of the Delegate and the decision of the Refugee Review Tribunal ("the RRT"). 10 He referred to the merits of the case to make good his argument that he had been denied justice. He said that the policy of ethnic federalism in Ethiopia had been a disaster and that he was liable to be arrested, tortured and killed for making peaceful demonstrations in Ethiopia. He referred me to an Amnesty International report to make good the submission. He also stated in his written submissions that there is a real danger to his life if he is forced to go back to Ethiopia so long as the present ruling party remains in power. 11 The applicant referred to certain exceptional circumstances. There were ten such circumstances listed in his written submissions. I will not repeat them but he says amongst other things that his case has been publicised, notwithstanding the provisions of s 91X of the Migration Act 1958 (Cth), and there is a real danger that he will be persecuted if he returns to Ethiopia. 12 He referred in his submissions at [9] to shocking circumstances which he has suffered by reason of the fact that he has not been able to earn income and is dependent upon community aid. He referred to numerous voluntary positions which he has held in public organisations including hospitals and at sporting events. His oral submissions were to the same effect as the written submissions but he also made the point that in his submission there were no reasons in the judgment of Emmett J and it was therefore procedurally unfair. 13 Mr Harris SC, who appeared for the Minister, submitted that the Muin Class Action and the Lie Class Action were decided on agreed facts and that Emmett J had observed that it was necessary for an applicant to file his or her own evidence to bring himself within the principles stated by the High Court. He submitted that the application for an order nisi was refused because there was no such evidence. 14 Mr Harris pointed out that one of the annexures to the applicant's affidavit was a document entitled "Case Management Action Request" which was apparently taken from the RRT file. The document was in the following terms: "Please send standard letter re adverse material to a/n + adviser TODAY, along with the following attachments only: 3, 4 and 9. DO NOT send any of the other attachments, or the Research Advice. Make a copy of the attachments you do send, so they can be put on the file. After please return original Research Advice + all attachments to me. 15 Mr Harris submitted that this evidence was not sufficient to satisfy the principles stated by the High Court in Muin v The Refugee Review Tribunal (2002) 76 ALJR 966 ("Muin"). 16 Mr Harris pointed in this regard to the principles referred to in Muin by Justice Gaudron, in particular at [62], [64] and [65]. Her Honour, in [62] observed that the agreed statement of facts made it clear that Mr Muin was misled into thinking that it was unnecessary to draw attention to the Part B documents which favoured his application. 17 Her Honour referred at [64] to a second principle of procedural fairness, namely, that an applicant is to be given a reasonable opportunity to answer any adverse material in the possession of the Tribunal which is to be relied upon by the Tribunal and which suggests that he or she is not a refugee. Mr Harris submitted that that was the sort of material which needed to be put before Emmett J and that no such material had been filed. 18 He also drew attention to the decision of the RRT at page 15 where the RRT stated that on 30 March 1999 it had received brief written submissions from the applicant's adviser and on the same day that it had sent to the applicant and his adviser copies of adverse material in connection with the hearing before the RRT. 19 The date on which the RRT's decision was made was 12 May 1999 and it is apparent from what the RRT said and also from the case management document that the adverse material was sent to the RRT before the date on which the decision was given. Mr Harris submitted that his Honour's decision was not on its face made arbitrarily and that this was not a case in which the principles of public policy referred to in Wilkinson were applicable. 20 It seems to me that what Mr Harris has put to me about the evidentiary deficiencies in the applicant's case are correct. Accordingly, the evidence before Emmett J was insufficient to bring the application within the principles stated by the High Court. Moreover, it appears that the adverse material was provided to the applicant before the hearing. 21 It is plain on the face of his Honour's judgment that it was not made arbitrarily nor is it a case in which it could possibly be said that there was any suggestion of actual or apparent bias. 22 Moreover, it cannot be said that his Honour failed to weigh the competing factors before coming to a decision. His Honour considered the principles stated by the High Court in Muin on which the applicant relied to support the making of an order nisi and he applied those principles to the facts. His Honour came to the view, as I have said, that the evidence was insufficient and that the present case was no different from any of the other cases in which he refused to make an order nisi. 23 This is not a case which involved issues of public policy. The matter before his Honour involved considerations of principle, namely, whether the evidence which had been filed satisfied the tests stated by the High Court. 24 I do not accept the submission that the applicant was denied a chance to be heard. His Honour determined the application along with numerous other applications which were before him for directions on 20 February 2004. The applicant was not denied a chance of a hearing and was not denied procedural fairness. 25 The various other matters to which the applicant referred me go to the merits of the case. They cannot be the subject of judicial review and cannot be a ground for the grant of leave to appeal. 26 I also reject the applicant's submission that there were no reasons given by Emmett J for making the order refusing to grant an order nisi. It is clear from his Honour's judgment that there were reasons given, in particular, those set out in the judgment at [22] and also from a reading of the whole of the reasons for judgment given by his Honour on 20 February 2004. 27 It follows that the applicant has not satisfied me that there was any doubt about the correctness of his Honour's judgment. Accordingly, I am satisfied that an extension of time would be futile. 28 The order I propose to make is that the application be dismissed. 29 I make an order that the applicant pay the respondents' costs of the application in an amount to be taxed, or assessed or as agreed between the parties.