FEDERAL COURT OF AUSTRALIA S325 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1594 APPLICANT S325 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR NSD 2400 OF 2003 EMMETT J SYDNEY 9 NOVEMBER 2005 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2400 OF 2003 BETWEEN: APPLICANT S325 OF 2003 APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 9 NOVEMBER 2005 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Order 51A rule 5(1) not apply to the proceeding. 2. The application for orders nisi be refused. 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 2400 OF 2003 BETWEEN: APPLICANT S325 OF 2003 APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: EMMETT J DATE: 9 NOVEMBER 2005 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant is a citizen of Pakistan. On 31 March 1994, the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth) ('the Act'). On 28 July 1997, a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs ('the Minister') refused to grant a protection visa. On 5 September 1997, the applicant applied to the second respondent, the Refugee Review Tribunal ('the Tribunal') seeking review of the delegate's decision. On 15 July 1998, the Tribunal affirmed the delegate's decision. 2 On 18 June 2003, the applicant commenced a proceeding in the High Court of Australia by filing a draft order nisi and affidavit, affirmed on 28 May 2003. By the draft order nisi, the applicant claimed constitutional writ relief in respect of the decision of the Tribunal, made on 15 July 1998, whereby the Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa. 3 In the affidavit, the applicant claimed to be a 'party of Lie class action'. By this assertion, it can be taken that the applicant claims to be one of the persons named as a party in the Schedule of the Statement of Claim in the matter Muin v Refugee Review Tribunal [2002] HCA 30 ('Muin and Lie'). The matter was remitted to this Court pursuant to an order of the High Court following that decision. 4 The grounds specified in the draft order nisi are as follows: '(a) the [Tribunal] did not follow the proper procedure as required by the Migration Act 1958 (Cth). Thus the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed. (b) the [Tribunal's] decision was affected by an 'error of law' and 'Jurisdictional error' and lack of procedural fairness. (c) there was no evidence or other material to justify in (sic) making of the decision. (d) the applicant was denied natural justice in being denied a reasonable opportunity to be heard on his application before the [Minister]; (e) there has been a constructive failure of jurisdiction by the [Minister's] decision of 28 July 1997, failed to address the correct legal question committed to him by not applying himself to all of those issues he was required to consider in determining the matter before him. (f) there was a failure of the [delegate] to exercise his jurisdiction in the decision of 28 July 1997 because he did not reach a state of satisfaction bases (sic) upon a correct understanding of the law on which he acts. (g) the decision of the [delegate] of 28 July 1997 was made in breach of rules of natural justice.' No further particulars of those grounds are specified in the draft order nisi and no particulars are contained in the affidavit affirmed 28 May 2003. 5 The draft order nisi and affidavit were filed in the High Court by the applicant personally. The applicant is not represented by any legal adviser. 6 In his evidence and material supplied to the Tribunal, the applicant claimed to fear persecution in Pakistan on the basis of his political beliefs and practices. The applicant claimed that he was an active member of the Mohajir Quami Movement ('MQM') responsible for publicity, the pasting of posters and the organisation of meetings. He claimed that within two years, he became an important member of the party. 7 The applicant claimed to have suffered from threats, harassment and torture at the hands of rival party members. The applicant claimed that his house was stoned by members of a rival party in July 1989, resulting in damage to the house and injury to family members. 8 The applicant claimed to have lost two jobs, he assumed for his religious beliefs and work with the MQM. He also claimed that he was 'bashed' on two occasions by Muslims because he was a Christian. In December of 1990, the applicant claimed to have been detained in a cell, falsely charged with murder, assault and the destruction of property and tortured by the police for four days. The applicant claimed that he was released only after agreeing to stop his MQM activities. 9 The Tribunal found the evidence of the applicant to be unreliable and inconsistent. It did not accept the applicant's claims that he was disadvantaged in Pakistan for being a Christian, that he was an 'important person' in the MQM, that he was harassed by members of a rival party or that he was arrested, tortured and threatened with false charges. To the extent that the conflict he described, if it had occurred, was conflict that became 'personal', as the applicant alleged, the Tribunal held that this would take the applicant's problem outside the scope of the Convention definition of 'refugee'. 10 Additionally, having considered the applicant's claims in his protection visa application, review application, oral and documentary evidence and independent country information, the Tribunal concluded that in all the circumstances of the case, it would be reasonable for the applicant to relocate elsewhere within Pakistan. 11 The proceeding commenced in the High Court was subsequently remitted to the Federal Court of Australia along with over 1,000 other proceedings commenced by persons who had nominally been parties to the Muin and Lie class action. In those other proceedings, similar relief was claimed in respect of other decisions of the Tribunal refusing the grant of protection visas. 12 For the reasons set out in Applicant S195 v Refugee Review Tribunal [2005] FCA 1571, it is appropriate for this matter to be dealt with on the papers. 13 On 12 November 2004, the New South Wales District Registrar wrote to the applicant saying as follows: As a result of an order by the High Court, your application was transferred to the Federal Court of Australia. The Federal Court must consider whether there is an arguable case for the Court to make an Order nisi. If the Court decides that there is no arguable case, your application for an Order nisi will be refused. The Court proposes to consider whether there is an arguable case on the basis of the written material that you have given to the Court and without any oral hearing. The lawyer for the Minister will not be giving any information to the Court. Before the Court makes a decision you may make such written submissions in the English language as you wish o the question of whether the Court should make an Order nisi. Any submissions must be lodged with the Registry of the Court no later than 10 December 2004.' The letter was addressed to the applicant at the address shown in the draft order nisi. 14 The letter was subsequently returned to the Court marked 'Not at Address Return to Sender'. 15 The material before the Court does not show that the Tribunal fell into jurisdictional error in making its decision. The material does not support any arguable basis for the making of orders to quash the decision of the delegate and to restrain the Minister from acting upon that decision. 16 The applicant raised a further issue in his affidavit to the effect that s 486A of the Act was constitutionally invalid. That section provides, relevantly, that: 'An application to the High Court for a writ of mandamus, prohibition or certiorari or an injunction or a declaration in respect of a privative clause decision must be made to the High Court within 35 days of the actual (as opposed to deemed) notification of the decision.' 17 The applicant argued in his affidavit that: 'the 35 day limitation is an invalid fetter on the High Court's power, under s 75(v) of the Constitution, to grant injunctions and Constitutional writs in respect of judicial review proceedings.' 18 This argument is not relevant to establishing Muin and Lie relief. In any event, s 486A of the Act does not apply to the decision of the Tribunal in this case. The section deals with applications to the High Court in respect of decisions which are made after 27 September 2001. As mentioned before, the decision of the Tribunal in the matter currently before the Court was made on 15 July 1998 (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [30] per McHugh and Gummow JJ). 19 Order 51A rule 5(1) of the Federal Court Rules provides that, where an application for an order nisi is remitted by the High Court to the Federal Court, the Court will, at the same time, hear the parties on whether, if the order nisi were made, it should be made absolute. However, under rule 5(2) the Court may, in a particular case, order that rule 5(1) does not apply. It is appropriate to make an order under rule 5(2) in this case. 20 Accordingly, the refusal of an order nisi will not constitute a final determination of any question between the applicant and respondents named in the draft order nisi and thus would not give rise to any issue estoppel or res judicata as between the applicant and the respondents. The applicant may commence a fresh proceeding in the Federal Magistrates Court should the applicant wish to pursue any claim for relief in respect of the Tribunal's decision. 21 In the circumstances, an order nisi should be refused. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 9 November 2005 Date of Judgment: 9 November 2005