S255/2003 v Refugee Review Tribunal [2005] FCA 1573

FEDERAL COURT OF AUSTRALIA

S255/2003 v Refugee Review Tribunal [2005] FCA 1573 MIGRATION – application for order nisi requiring the respondents to show cause why constitutional writs should not be issued in respect of a decision of the Refugee Review Tribunal S255/2003 v REFUGEE REVIEW TRIBUNAL & ORS N1059 of 2003 GRAHAM J 8 NOVEMBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1059 OF 2003

BETWEEN: S255/2003

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA

THIRD RESPONDENT

JUDGE: GRAHAM J

DATE OF ORDER: 8 NOVEMBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for an order nisi be dismissed. 2. The Applicant pay the Second and Third Respondents' 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 N1059 OF 2003

BETWEEN: S255/2003

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA

THIRD RESPONDENT

JUDGE: GRAHAM J

DATE: 8 NOVEMBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The High Court has remitted to this Court an application for an order nisi requiring the Respondents to show cause why constitutional writs should not be issued in respect of a decision of the Refugee Review Tribunal ("the Tribunal") of 6 June 1997. 2 The Applicant, who has been identified for the purpose of these proceedings as S255/2003, is a national of the Philippines who arrived in Australia on 23 October 1996 with his wife and two children. 3 On 15 November 1996 the Applicant applied to the then Department of Immigration and Ethnic Affairs for a protection visa. That application also included his wife and children. 4 On 8 January 1997 a Delegate of the Minister for Immigration and Ethnic Affairs determined that the Applicant and his wife and children were not refugees who were entitled to Australia's protection under the Migration Act 1958 (Cth) ("the Act"). 5 On 11 February 1997 the Applicant applied to the Tribunal for a review of the Minster's Delegate's decision. 6 By letter dated 29 April 1997 the Applicant was advised by the Tribunal that it intended to conduct a hearing in relation to his application on 13 May 1997. This hearing was ultimately rescheduled for 6 June 1997 and the Applicant appeared at that hearing. 7 On 6 June 1997 the application for review of the Minister's Delegate's decision was refused. The Tribunal determined that the Applicant was not a person to whom Australia had protection obligations under the Convention. It found that the Applicant, his wife and their two children were not refugees and proceeded to affirm the decision of the Minister's Delegate not to grant protection visas to them. 8 On 30 May 2003 the Applicant filed an application in the High Court of Australia seeking an order nisi requiring the Respondents to show cause why constitutional writs should not issue directing the Respondents to consider and determine the Applicant's application for a protection visa upon the ground that the Tribunal had failed to accord the Applicant procedural fairness. 9 In its reasons for its decision, the Tribunal said under the headings "Claims and Evidence" and "Findings":- "The Applicant claims fear of persecution in the Philippines on the Convention-related grounds of 'political opinion'. He claims that he was a successful commercial breeder of fighting cocks in the Philippines operating from a modern farm complex in his home town. In June 1996, a named policeman came to him demanding money and free cocks. The Applicant denied the demand and the policeman threatened to shoot and poison his cocks. In the same month, the Applicant reported the problem to the National Police Commission which handles complaints against police officers in the Philippines. The named officer heard about this complaint and went to the Applicant's farm, when the Applicant was not there, and wreaked havoc upon his cock stock. He passed on a threat to shoot the Applicant on sight. The Applicant told the Tribunal that he lived in a secure residential compound protected by security guards. The Tribunal acknowledges that this kind of housing estate for high income earners and their families is common in the Philippines; the guards are privately contracted, efficient and loyal to the residents who pay them. The policeman never tried to attack the Applicant at home. The Applicant was able to remain safe in his home until the month of his departure for Australia. The Applicant argues that his fear relates to persecution for reason of 'political opinion' because the police are linked to the government. He sees himself being persecuted by an arm of government. The Tribunal discussed this contention with the Applicant and he stated at the end of the hearing that he understood that his claims fall outside of the Convention. … The Tribunal found the facts in this case to be plausible. However, on the evidence, it does not find any Convention-related dimension to the problem the Applicant described. … On the evidence, the Tribunal is satisfied that the Applicant and his family do not face a real chance of Convention-related persecution in the Philippines. Therefore they are not refugees." 10 The Applicant says that he had an entitlement to seek an order nisi because of leave being granted by the High Court to do so provided that his application was filed on or before 1 June 2003, as it was. 11 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 the Applicant 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. 12 A written submission was provided by the Applicant by letter dated 20 December 2004. 13 In that letter the Applicant said:- "In arriving at its final decision, I believe that the [Tribunal] overlooked to give my case due consideration by failing to take into account relevant 'country information' that would have supported my case. Had the [Tribunal] considered among other relevant reference materials that it ought to have taken into account at the time of assessing my case, such as the 'country, the [Tribunal] would have noted the reports about the continuing political instability, abuse of human rights, detention and exile of citizens, denial of fair public trial, violations of humanitarian laws, as well as the rampant and blatant abuse of power by the army and police officers of the Philippines. Similarly the [Tribunal] would have noted the high incidence of crime, including murder by ambush with no apparent motive. In short, the 'country information' would have disclosed that the Philippines remained an unsafe country of residence for those people in my situation, people who were and remained as target and victims of police brutality. In support of my case, I have attached for your reference, a report on the Philippines 'Country Reports on Human Rights Practices – 1999', which was released by the Bureau of Democracy, Human Rights and Labor dated February 23 2000, which I sourced from the internet, and another extract of an article from the internet, referred to as 'Reparation for Torture: The Philippines'. I wish to point out that the human rights situation in the Philippines was far worse in the years prior to 1999." 14 The country information provided by the Applicant with his submissions appears to have been issued on 23 February 2000 and on a date after January 2003. The relevant information could hardly have been taken into account by the Tribunal in reaching its decision on 6 June 1997. 15 The Applicant also submitted with his letter a document purporting to be issued by the "Republic of the Philippines, Department of the Interior and Local Government, NATIONAL POLICE COMMISSION" and dated 5 July 1997. That document purported to certify that "our records show that on June 13, 1996 [the Applicant] filed an administrative case against a certain … policeman assigned at Pantay, Antipolo, Rizal. The former claims that the latter has threatened to shoot him as a result of a heated argument involving fighting cocks. Complaint is under investigation." 16 Once again it may be noted that the certification post dates the hearing and decision of the Tribunal in the Applicant's matter. 17 The Applicant has no entitlement to have a merits reconsideration by the Court of the Tribunal's decision. 18 No proper basis has been provided for any challenge to the Tribunal's decision of 6 June 1997 founded upon an alleged failure to provide procedural fairness to the Applicant. 19 The Applicant has not made out an arguable case suggesting reviewable error on the part of the Tribunal and no argument warranting the grant of an order nisi has been advanced in the Applicant's submissions. 20 This is an appropriate application to be dealt with on the papers. 21 The application for an order nisi must be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.