FEDERAL COURT OF AUSTRALIA

Applicant M78/2002 v Minister for Immigration & Multicultural Affairs

[2003] FCA 726

MIGRATION – fear of persecution due to being wrongly identified as a homosexual on the basis of HIV positive status - whether error by Refugee Review Tribunal in determining membership of particular social group

Judiciary Act 1903 (Cth) s44(1)

Migration Act 1958 (Cth) s417

Re Ross; ex parte Australian Liquor Hospitality and Miscellaneous Workers Union [2001] FCA 770, (2001) 108 FCR 399, referred to

Low v Commonwealth [2001] FCA 702, referred to

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, distinguished

APPLICANT M78/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND THE REFUGEE REVIEW TRIBUNAL

V194 OF 2003

MARSHALL J

15 JULY 2003

MELBOURNE

THE COURT ORDERS THAT:

1.      The application be dismissed.

2.      The applicant pay the first respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The proceeding before the Court was remitted to it by order of the High Court of Australia made on 7 February 2003.  The applicant filed an application for constitutional writs in the High Court on 5 June 2002 in respect of a decision of Refugee Review Tribunal (“the RRT”) dated 16 July 2001, that was “handed down” on 3 August 2001.

2                     In the High Court, the applicant sought a writ of prohibition directed to the RRT seeking that it refrain from giving effect to its decision to refuse the applicant a protection visa.  In addition, a writ of certiorari was sought to quash the decision and a writ of mandamus was sought directing the RRT to determine the application for a protection visa according to law.

3                     The grounds relied upon for the grant of constitutional writs comprehensively dealt with almost all imaginable varieties of legal error.

4                     The proceeding in the High Court was filed out of time.  The High Court did not grant an enlargement of time.  Rather, it ordered that further proceedings in the application be remitted to this Court and that the application proceed in this Court, as if the steps already taken in the High Court had been taken in this Court; see also s44(1) of the Judiciary Act 1903 (Cth).

5                     Order 55 of the High Court Rules provides a two month time limit for the writ of mandamus and a six month time limit for the writ of certiorari.  Order 55 rule 30 provides that:

“An application for a writ of mandamus, or an order in the nature of mandamus, to a judicial tribunal to hear and determine a matter shall be made within two months of the date of refusal to hear or within such further time as is, under special circumstances, allowed by the Court or a Justice.”

6                     Order 55 rule 17(1) of the High Court Rules provides that:

“An order nisi for a writ of certiorari to remove a judgment, order, conviction or other proceeding, for the purpose of its being quashed, of an inferior court or tribunal … shall not be granted unless the application for the order is made not later than six months after the date of the judgment, order, conviction or other proceeding, or within such shorter period as may be presented by any law.”

7                     Order 60 rule 6(1) of the High Court Rules provides:

“A Court or Justice may enlarge or abridge the time appointed by these rules … for (the) doing (of) an act upon such terms, if any, as the justice of the case requires.”

8                     There is no question as to whether this Court has the power to enlarge the times fixed by the High Court rules for bringing a writ of certiorari or mandamus; see Re Ross; ex parte Australian Liquor Hospitality and Miscellaneous Workers Union [2001] FCA 770 at [39], (2001) 108 FCR 399 at 409.

9                     As noted in Re Ross at [38], FCR 409, there is no time limit in the High Court Rules concerning an application for a writ of prohibition. However, in this case a writ of prohibition, in isolation, would be of limited utility. The RRT has made its decision and is not required to do or refrain from doing anything to give effect to it.

10                  The real question that arises at the threshold is whether the Court should extend the time in which the applicant can apply for a writ of certiorari and a writ of mandamus.

11                  The decision of the RRT was handed down on 3 August 2001.  The application for certiorari should have been made by 3 October 2001.  It was made on 5 June 2002, some eight months late.  The application for mandamus should have been made by 3 February 2002.  It was four months late.

12                  In an affidavit filed in the High Court, the applicant said that he did not seek to review the RRT’s decision in this Court because he could not afford legal representation.  He also referred to two “humanitarian applications” which had been made to and rejected by the second respondent pursuant to s417 of the Migration Act 1958 (Cth) (“the Act”).  The applicant also stated that he lacked representation “for almost the entire refugee determination process and currently have no legal counselling assisting me”. He referred to the fact that during most of the relevant time he has been in immigration detention.

13                  It is futile to consider an application for an enlargement of time if the substantive application before the Court is bound to fail:  see, for example, Low v Commonwealth [2001] FCA 702 at [13].  In my view, the application in any event is bound to fail for the reasons set out below.

14                  The applicant applied for a protection visa on 15 January 2001.  A delegate of the second respondent rejected the application on 7 March 2001.  A migrant agent, Mr Akbar Jariwala of Akbar Migration Services assisted the applicant in the preparation of his application.  In the application, in answer to the question “why did you leave (Pakistan)?”, the applicant claimed to the effect that he had to leave to get away from people connected with the heroin trade.  In answer to the question, “What do you fear may happen to you (if returned to Pakistan)?”, the applicant said that he would lose his life “in days” or be killed by the police as a drug trafficker.

15                  The delegate assessed the applicant’s claims by concluding that:

“ … I find that the hardship that the applicant may have experienced in Pakistan, and which he fears may recur if he returns to that country, was not for reasons of his religion, his political opinion, his race, his membership of a particular social group or his nationality, but for reasons of his suffering an addiction to heroin.”

In other words, the delegate found that the applicant did not have a well-founded fear of persecution for a Convention reason.

16                  On 12 April 2001, the applicant lodged an application with the RRT to review the delegate’s decision.  The application for review disclosed that migrant agent Mr Jariwala acted on his behalf.  Additional material in support of the application was sent to the RRT by Mr Jariwala, by letter dated 8 June 2001.  In that material the applicant contended that if returned to Pakistan he would be killed by the police or the mafia.  He said that the mafia would kill him if he did not agree to their demands.

17                  The RRT dealt with the application before it by way of an oral hearing, which took place on 28 June 2001. On 13 June 2001, the RRT received written statements in support of the application from the applicant’s sisters and brothers.  The sisters expressed the view that the applicant would not be safe in Pakistan “due to drug Mafia”.  One brother indicated that he was in no position to assist the applicant if the applicant returned to Pakistan.

18                  The RRT also received correspondence in support of the applicant from a Pakistani lawyer and a Pakistani doctor.  Each of them stressed that if the applicant returned to Pakistan his life would not be safe on account of his drug addiction.  A Pakistani community leader, based in Australia, provided a letter concerning the attitude in Pakistan to persons diagnosed as AIDS sufferers, such as the applicant.

19                  On 6 July 2001, after the hearing, Mr Jariwala provided additional material in support of the applicant’s claim for a protection visa.  This material concerned the applicant’s HIV positive status and the claim that he would be killed by one of many Islamic groups which would consider him to be a homosexual.

20                  In its decision, the RRT set out the applicant’s claims and referred to additional evidence which was given by the applicant at the oral hearing.  The RRT accepted that:

·        the applicant was addicted to heroin and had difficulty breaking that addiction;

·        the applicant was arrested on one occasion when it was alleged that he had purchased drugs, but that no charges were laid against him by the Pakistani authorities;

·        the applicant had stones thrown at his house and was threatened with death in 1994 after he reported a drug dealer to the police.

21                  The RRT found that given the passage of time and the applicant’s voluntary return to Pakistan in 1996, after spending some time in Australia, prior to then, the applicant’s claims do not disclose a Convention ground for the harm feared.  The RRT then went on to consider for itself, despite the migrant agent making no submissions to this effect, that the applicant did not belong to a ‘particular social group’ within the meaning of that expression in the Refugees Convention.  It said that:

“He is among an amorphous and disparate group of people – former drug users.  They do not constitute a particular or cognisable social group, and the Tribunal finds accordingly.”

22                  The RRT discounted the applicant’s claim that he faced persecution on account of his HIV positive status, noting that possibly over a million Pakistanis are HIV positive.  It found the prospects of him being persecuted on account of that status to be remote.  In so doing, it had regard to the fact that the applicant identifies himself as heterosexual.

23                  The RRT accepted that the applicant’s medical treatment for AIDS in Pakistan would be of a lesser standard than what would occur in a western country, but said that any failure to provide adequate treatment would be attributable “to general factors such as limited resources” and not to a Convention reason.

24                  The RRT concluded, on the material before it, that the applicant did not face a real chance of persecution for a Convention reason if returned to Pakistan, notwithstanding his HIV positive status and the risk that he would be perceived to be a homosexual.

25                  On 26 June 2003, pro bono counsel acting for the applicant filed a document setting out the contentions of fact and law of the applicant. Those contentions asserted that the RRT failed to deal with a claim made by the applicant that he feared persecution on account of his membership of a particular social group, namely; HIV positive Pakistanis.

26                  No claim was made by the applicant or his migration agent that he belonged to a particular social group of HIV positive Pakistanis. Compare Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, where an issue was the correct identification of a claimed social group. The RRT did note the evidence of one of the applicant’s brothers that the applicant was diagnosed as HIV positive and that, “people in Pakistan will, therefore, conclude that the applicant is homosexual and will harass and mistreat him accordingly”.

27                  The RRT understood that the claim being made on behalf of the applicant was that he would be persecuted on account of his HIV positive status.  It dealt with the substance of that claim, as counsel for the applicant conceded. It accepted that the applicant had been diagnosed as HIV positive. It noted that possibly “well over a million” Pakistanis carry “the HIV/AIDS virus”. It said that:

“There are various modes of transmission of which certain forms of unprotected homosexual activity are but one”,

and that:

“…sero-conversion through contaminated blood is a particular problem in Pakistan.”

28                  The RRT specifically acknowledged a claim “by him or on his behalf by his brothers” of the applicant’s membership of a particular social group of homosexuals. It is apparent by what followed in the reasons for decision of the RRT that the RRT understood that claim in the context of the applicant’s HIV positive status, as referred to above in [19]. It said that for the applicant to be mistreated as a result of membership of the social group of homosexuals, he would need to display symptoms of AIDS, have his history of drug use unacknowledged and be wrongly identified as a homosexual. This observation was made in the context of the RRT understanding that the applicant’s medical condition was pivotal in assessing the likelihood of him being persecuted for a Convention reason if returned to Pakistan.

29                  On a fair reading of the reasons of the RRT, it did not fail to deal with a claim that the applicant would suffer persecution on account of his HIV status. On the contrary, the RRT accepted that the applicant was HIV positive and considered the implications for him, on the facts of his case, for a return to Pakistan given that status. I reject the submission of counsel for the applicant that the RRT constructively failed to exercise jurisdiction by failing “to decide whether the applicant was a member of the HIV positive group”.

30                  I also reject the submission that the applicant was denied procedural fairness by the alleged failure of the RRT to deal with the claim that the applicant was a member of the HIV positive group.  Indeed, counsel for the applicant conceded that such a submission could not succeed in the absence of the success of the primary submission.

31                  The application does not disclose any jurisdictional error. Accordingly, it will be dismissed with costs.

Associate:

Dated:              16 July 2003