NBIH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1266

FEDERAL COURT OF AUSTRALIA

NBIH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1266 NBIH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N1081 OF 2004 EMMETT J 7 SEPTEMBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1081 OF 2004

BETWEEN: NBIH

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 7 SEPTEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed summarily pursuant to O 20 r 2(1)(a) and (b). 2. The applicant pay the Minister's costs. 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 N1081 OF 2004

BETWEEN: NBIH

APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT JUDGE: EMMETT J

DATE: 7 SEPTEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of Pakistan. He last arrived in Australia as a visitor in July 1998. On 16 November 1999, he applied for a Protection Class XA Visa under the Migration Act 1958 (Cth) ('the Act'). 2 On 23 December 1999, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), refused to grant a protection visa. The applicant therefore lodged an application to the Refugee Review Tribunal ('the Tribunal') on 12 January 2000 for review of the Delegate's decision. On 30 July 2002, the Tribunal affirmed the decision not to grant a protection visa. 3 The applicant then commenced a proceeding in the High Court of Australia on 18 September 2003 seeking constitutional writ relief in respect of the Tribunal's decision. The proceeding was commenced by the filing of a draft order nisi and an affidavit in support. On 16 February 2004, the High Court remitted the proceeding to the Federal Court of Australia, and on 7 July 2004, this Court refused an order nisi. 4 The applicant then commenced this proceeding on 13 July 2004 seeking orders under s 39B of the Judiciary Act 1903 (Cth) in respect of the Tribunal's decision of 30 July 2002. 5 The matter came before me for directions on 23 July 2004, when I directed the applicant to file and serve any amended application giving complete particulars of each ground of review being relied upon, to be filed on or before 25 August 2004. No amended application has been filed. 6 The application presently before me asserts that the Tribunal made an error by ignoring the evidence provided by the applicant and favouring the Minister by affirming the Delegate's decision. The application asserts that the Tribunal made an error by ignoring the threat which he says was made to him by the Sipah-i-Sahaba Pakistan ('SSP') and members of the SSP. The application contains a brief statement of the claims made by the applicant to the Tribunal. 7 In its reasons, the Tribunal recorded that by letter of 9 May 2002, the applicant was notified that the Tribunal was unable to make a favourable decision on the papers before it and that, accordingly, the applicant was invited to attend a hearing of the Tribunal and give oral evidence in support of his claims. A hearing was scheduled for 23 July 2002. 8 On 18 July 2002, the Tribunal received a completed response to the hearing invitation, indicating that the applicant did not want to come to a hearing and consenting to the Tribunal proceeding to make a decision without taking any further action to enable him to appear before it. The Tribunal, therefore, proceeded to make a decision on the basis of the material already before it. 9 The Tribunal's reasons say that the applicant had provided only the briefest outline of his claims. The Tribunal was unable to be satisfied on the evidence before it that the applicant was involved in the Tehrik-e-Nifaz-e-Fiqah-e-Jafna ('TNFJ'), as he claimed, or that he was threatened and attacked by the SSP as he claimed, or that the police refused to assist him. 10 The Tribunal observed that there was no suggestion that the government of Pakistan encourages the activities of militant religious groups like the SSP. It said that the evidence suggested to the contrary; namely, that the government of Pakistan has taken steps to deal with the threat of sectarian violence by introducing new anti-terrorism legislation providing, amongst other things, for the establishment of special courts to try terrorist offences. The Tribunal was unable to be satisfied on the evidence before it that the authorities in Pakistan were unwilling to detect, prosecute and punish those responsible for sectarian violence, as claimed by the applicant. 11 The Tribunal was unable to be satisfied on the evidence before it that the applicant had a well-founded fear of being persecuted by the SSP by reason of his religion or his claimed involvement in the TNFJ if he returned to Pakistan now or in the reasonably foreseeable future. Thus, it is clear that the Tribunal considered and decided unfavourably concerning the claims that had been made by the applicant. Nothing has been put forward by the applicant to suggest that there are any other claims that he made and which were not dealt with by the Tribunal. 12 This application is completely without substance and the prior endeavour to obtain relief in the High Court without filing particulars, indicates that the applicant has no basis for relief as claimed. When invited today to address the Court in support of his application, he said that he required more time. However, having regard to the fact that it is more than two years since the applicant became aware of the decision of the Tribunal, he has had ample time to obtain advice in relation to any basis upon which the decision of the Tribunal could be impugned. 13 I consider that the proceeding is frivolous and discloses no cause of action whatsoever. In the circumstances, I consider that it is appropriate to dismiss the matter summarily. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.