S1051 of 2003 v Refugee Review Tribunal [2005] FCA 1441

FEDERAL COURT OF AUSTRALIA

S1051 of 2003 v Refugee Review Tribunal [2005] FCA 1441

S1051 of 2003 v REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 2688 of 2003 BRANSON J 20 OCTOBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2688 of 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN: S1051 of 2003

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SECOND RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 20 OCTOBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for an order nisi be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2688 of 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN: S1051 of 2003

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SECOND RESPONDENT

JUDGE: BRANSON J

DATE: 20 OCTOBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 5 June 2001, the Refugee Review Tribunal ('the Tribunal') affirmed a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refusing the applicant and her son protection visas under the Migration Act 1958 (Cth) ('the Act'). 2 The applicant filed an application for an order nisi in the High Court on 1 July 2003 requiring the respondents to show cause why constitutional writs should not be issued in respect of the Tribunal's decision. The application was remitted to this Court pursuant to orders made by Gaudron J, as varied by McHugh J, following the delivery of the High Court's judgment in Muin v Refugee Review Tribunal (2002) 76 ALJR 966. 3 The applicant, a citizen of India, supported her application for an order nisi by an affidavit sworn on 25 May 2003 by the applicant's then instructing solicitor. By correspondence of 12 November 2004, the District Registrar of the Federal Court informed the applicant that the Court proposed consider whether there is an arguable case for the granting of an order nisi on the basis of the written material before the Court. The applicant was invited to provide written submissions on the question of whether the Court should make an order nisi and did so on 13 December 2004. 4 I propose to deal with this application on the papers. 5 The affidavit filed in support of the application contends that the Tribunal took into account written submissions from the Secretary, Department of Immigration & Multicultural & Indigenous Affairs made pursuant to s 423(2) of the Actwithout bringing the submissions to the attention of the applicant or providing the applicant with an opportunity to comment on them. Neither the affidavit nor the applicant's submission provide further material in support of this contention. 6 The Tribunal's reasons for decision do not refer submissions made pursuant to s 423(2) of the Act and there is no other indication that such submissions were received or considered by the Tribunal in the making of its decision. 7 The affidavit further contends that the Tribunal denied the applicant procedural fairness and that the applicant has been 'disadvantaged because of the delay in processing of whole matter'. The applicant's written submissions assert that the Tribunal took into account material adverse to the applicant's case without giving the applicant an opportunity to counter the adverse material. The applicant refers to Department of Foreign Affairs and Trade cables and commentaries, country reports and media reports dealing with the Sikh independence movement dating from 1991 to 1998. The applicant also suggests that the Tribunal failed to consider current information in relation to the Sikh independence movement. 8 The Tribunal's reasons for decision disclose that the Tribunal put to the applicant independent information that the situation in Punjab is now peaceful, the security situation is calm and there are no reports of police harassment of people merely by reason of their membership the Sikh student group of which the applicant claimed her husband was a member. The independent information considered by the Tribunal includes material produced up to, and including, 2001. 9 The delays that have attended the finalisation of the applicant's attempts to have the decision of the Tribunal set aside do not impact on the validity of the decision of the Tribunal and are, in any event, in large a measure of the responsibility of the applicant and her former legal adviser. 10 By her written submissions the applicant has challenged the decision of the Tribunal on the merits but this challenge is of not of itself of any significance on the present application. Additionally she purports to challenge a finding of the Tribunal that women in India, or alternatively, Sikh women in India, do not constitute a social group for the purpose of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. The Tribunal made no such finding and nothing before this Court suggests that a case was sought to be made to the Tribunal that the applicant feared persecution in India by reason of being either a woman or a Sikh woman. Additionally the applicant's written submissions complain that the Tribunal erred in considering her claim separately from her husband's claim. By the time of the applicant's application to the Tribunal a differently constituted Tribunal had already affirmed a delegate's decision that the applicant's husband was not entitled to a protection visa. The Tribunal could not have considered her application for review together with her husband's application. Nor is it likely that her case would have been assisted if it had. 11 The applicant has not made out an arguable case that the Tribunal committed jurisdictional error. The application for an order nisi is dismissed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.