FEDERAL COURT OF AUSTRALIA S507 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1786 S507 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N590 OF 2004 EMMETT J 7 JULY 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N590 OF 2004 BETWEEN: S507 OF 2003 APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT GILES SHORT, MEMBER OF THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 7 JULY 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. O 51A r 5(1) of the Federal Court Rules not apply to the proceeding. 2. An order nisi be refused. 3. The applicant pay the Minister's costs in the sum of $200. 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 N590 OF 2004 BETWEEN: S507 OF 2003 APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT GILES SHORT, MEMBER OF THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: EMMETT J DATE: 7 JULY 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant is a citizen of Pakistan. He arrived in Australia as a visitor in July 1998 and applied for a Protection Class XA Visa under the Migration Act 1958 (Cth) on 16 November 1999. On 23 December 1999 a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), refused the application for a protection visa. On 12 January 2000 the applicant lodged an application for review of the delegate's decision by the Refugee Review Tribunal ('the Tribunal'). 2 On 30 July 2002 the Tribunal affirmed the decision not to grant a protection visa. The Tribunal's decision was handed down on 20 August 2002. On 18 September 2003 the applicant commenced a proceeding in the High Court seeking constitutional writ relief in respect of the Tribunal's decision. That proceeding was commenced by the filing of a draft order nisi and affidavit in support. On 16 February 2004 Heydon J ordered that the proceeding be remitted to this Court. The matter was called on for directions today. The Minister submitted that there was no arguable case disclosed by the material and that an order nisi should be refused. 3 The Tribunal, in its reasons, recorded that, by letter of 9 May 2002, the applicant was notified that the Tribunal was unable to make the most favourable decision on the papers before it and that, accordingly, he was entitled to come to a hearing to give oral evidence. A hearing was scheduled for 23 July 2002 but, on 18 July 2002, the Tribunal received from the applicant a form indicating that he did not want to come to a hearing and consented to the Tribunal proceeding to make a decision on the review 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. 4 In his statement accompanying his original application the applicant said that he belonged to the Shia Muslim sect and that he had joined a Shia group known as Tehrik-e-Nifaz-e-Fiqah-e-Jafria ('TNFJ'), or the Movement for the Implementation of the Shia Code. He said that he was elected as the General Secretary of a ward of the TNFJ in 1992 but that, in the middle of that year, members of the Sunni group, Sipah-i-Sahaba ('SSP'), fired on members of the TNFJ at a religious meeting. The applicant said that he was warned by the SSP that he should leave the TNFJ and he, therefore, went to Malaysia for some time. He said that when he has returned to Pakistan he had been attacked and badly injured by an active leader of the SSP, along with many other workers of the SSP. 5 After referring to independent country information concerning the TNFJ and the SSP, the Tribunal observed that the applicant had provided only the briefest outline of his claims. The Tribunal observed that, apart from the first attack on the applicant which he claimed occurred in the middle of 1992, it was impossible to tell when he claimed that he was attacked or, indeed, when he was in Pakistan. 6 The Tribunal observed that the fact that the applicant apparently returned to Pakistan from Malaysia cast doubt on whether he had a well-founded fear of being persecuted by reason of his religion or his involvement in the TNFJ in Pakistan. The Tribunal indicated that the evidence before it suggests that the government of Pakistan does not encourage the activities of militant religious groups like the SSP. Indeed, the evidence before the Tribunal suggests to the contrary, namely, that the government of Pakistan has taken steps to deal with the threat of sectarian violence by introducing a new Anti-Terrorism Act providing, amongst other things, for the establishment of special courts to try terrorist offences. 7 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 suggested by the applicant. The Tribunal was unable to be satisfied on the evidence before it that the applicant has a well-founded fear of being persecuted by the SSP by reason of his religion or his claimed involvement in the TNFJ. 8 The grounds specified in the draft order nisi filed by the applicant are difficult to comprehend. They assert that the Tribunal erred in that the decision-maker failed to make a bona fide attempt to exercise its power or, in the alternative, failed to recognise that the applicant continues to harbour protection fears in respect of the persecution he experienced in his native country. A careful reading of the reasons of the Tribunal does not indicate that such a ground is open. Secondly, the draft order nisi says that a decision would be subject to review where there is lack of reasonableness, failure to comply with the Act, or denial of natural justice. 9 The draft order nisi purported to give particulars of such grounds which do no more than assert the applicant's factual claims that he was subject to persecution and was facing persecution in Pakistan and was beaten badly on two occasions. I do not consider that the material before the court discloses an arguable case upon which constitutional writ relief could be granted in respect of the decision of the Tribunal. The Minister asks that an order nisi be refused. That appears to me to be the appropriate course. 10 It would be open to the applicant, if he is able to formulate a basis upon which relief could be granted, to commence a fresh proceeding, either in this court or the Federal Magistrates Court, but until an arguable case is formulated there is no utility in permitting this proceeding to go forward. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 9 February 2005 The applicant appeared in person Solicitor for the Respondent: N McLaughlin, Blake Dawson Waldron Date of Hearing: 7 July 2004 Date of Judgment: 7 July 2004