S182/2003 v Refugee Review Tribunal [2005] FCA 1458

FEDERAL COURT OF AUSTRALIA

S182/2003 v Refugee Review Tribunal [2005] FCA 1458

MIGRATION – application for order nisi requiring the respondent to show cause why constitutional writs should not be issued in respect of a decision made by it S182/2003 v REFUGEE REVIEW TRIBUNAL NSD 963/2003 GRAHAM J 13 OCTOBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 963 OF 2003

BETWEEN: S182/2003

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

RESPONDENT

JUDGE: GRAHAM J

DATE OF ORDER: 13 OCTOBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for an order nisi be dismissed. 2. The Applicant pay the Respondent'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 NSD 963 OF 2003

BETWEEN: S182/2003

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

RESPONDENT

JUDGE: GRAHAM J

DATE: 13 OCTOBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The High Court has remitted to this Court an application for an order nisi requiring the Respondent, the Refugee Review Tribunal ("RRT"), to show cause why constitutional writs should not be issued in respect of a decision of the RRT handed down on 14 January 1998. 2 On 23 June 1995 the Applicant arrived in Australia from India on a visitor's visa. On 22 September 1995 he applied for a Protection (Class XA) Visa. Such application was refused by a Delegate of the Minister on 12 April 1996. 3 On 23 April 1996 the Applicant applied to the RRT for review of the Delegate's Decision. On 14 January 1998 the RRT affirmed the decision not to grant a Protection Visa to the Applicant, deciding the matter primarily on the question of credit. 4 The Applicant thereupon sought review of the RRT decision in this Court and that application was refused on 20 July 1998. 5 The Applicant says that thereupon he joined the "Class Action". In point of fact he filed an application in the High Court of Australia on 14 May 2003 seeking an order nisi requiring the Respondent to show cause why constitutional writs should not be issued in respect of the decision of the RRT. 6 By letter dated 12 November 2004 the Applicant was advised that the Court proposed to consider whether there was an arguable case for the grant of an order nisi on the basis of the written material that he had given to the Court and without any oral hearing. He was also advised that he may make such written submissions as he wished on the question of whether the Court should make an order nisi. He was further informed that the Court would inform him of any decision that it made on the question of whether an order nisi should be granted as soon as possible after it was made. 7 A written submission was filed by the Applicant on 9 December 2004. 8 The Applicant's claims which were considered by the RRT were those set out in his written submissions to the Department, an interview with an officer of the Department, written submissions to the RRT and oral evidence given to the RRT on 6 November 1997. 9 The Applicant contended that in the Punjab where he lived the police used to torture him, he was a targeted person, threats were made against his life, his family was harassed and questioned, there was a warrant for his arrest and he was persecuted. 10 The RRT did not accept the Applicant's claims. It went so far as to conclude that his material claims were entirely fabricated. 11 The RRT concluded that it was not satisfied that he was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. Accordingly, he was not entitled to a Protection Visa. 12 In an affidavit filed 14 May 2003 in support of his application in the High Court the Applicant contended that the RRT's decision involved jurisdictional error. In point of fact the Applicant's complaint was that the RRT should not have made findings against the Applicant in respect of his credit and should have reached a different conclusion on the merits. 13 In his written submissions filed 9 December 2004 he raised no matters of jurisdictional error. 14 He invoked this "worthy Australian court" to have regard to fresh material and to reverse the findings of the RRT on the facts. He contended that one matter to which the RRT referred as indicating a discrepancy in his account was inconsistent with the evidence given before the RRT. Even if this were so, and I make no finding upon it, there were numerous other bases relied upon by the RRT for its rejection of the Applicant's claims. 15 The Applicant has not made out an arguable case suggesting jurisdictional error on the part of the RRT and no argument warranting the granting of an order nisi has been advanced in the Applicant's written submissions. 16 This is an appropriate application to be dealt with on the papers. 17 The application for an order nisi must be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.