FEDERAL COURT OF AUSTRALIA

NART v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 865

NART v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N700 OF 2003

STONE J

7 JULY 2004

SYDNEY

THE COURT ORDERS THAT:

1.                  An order in the nature of certiorari be issued, directed to the Refugee Review Tribunal removing its decision in this matter, made on 29 April 2003, into this Court, for the purpose of quashing it.

2.                  The Refugee Review Tribunal’s decision of 29 April 2003 be quashed.

3.                  An order in the nature of mandamus be issued, directed to the Refugee Review Tribunal, requiring it to hear and determine the applicant’s application for review according to law.

4.                  The respondent pay the applicant’s costs.

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

REASONS FOR JUDGMENT

Introduction

1                     The applicant arrived in this country on 25 June 2001 accompanied by her half-sister. The sisters made separate applications for protection (class XA) visas. Each application was refused successively by a delegate of the respondent and the Refugee Review Tribunal (‘Tribunal’). The sisters’ applications were considered by the same Tribunal member who rejected them on the same grounds although in separate decisions. Both sisters applied to this Court, under s 39B of the Judiciary Act 1903 (Cth), for review of the Tribunal’s decisions. The application for review of the applicant’s half-sister is the subject of a separate judgment; see NARU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 864 (‘NARU’).

2                     The applicant is a citizen of Kenya who spent some years as a competitive athlete and, from about 1986, worked as an athletics coach. She came to Australia to compete for Kenya in the World Veterans’ Athletics Championships. The circumstances that the applicant claims give rise to a well-founded fear of persecution should she be returned to Kenya are virtually identical to those relied on by her half-sister. I have described those claims and the Tribunal’s reasons for decision in NARU and I do not propose to repeat those claims here except where there are relevant differences.

Application to this Court

3                     Until shortly before the hearing date the applications of the two sisters had, at their request, been considered together. This was a convenient approach because the background and claims of the two women were virtually identical, as were their applications to this Court. The sisters were unrepresented and appeared for themselves. On 3 May 2004 however, an amended application was filed in the sister’s proceeding but not in this proceeding. From that point the sister, but not the applicant, was represented by senior counsel. Shortly before the hearing of this matter the applicant, who was to appear for herself, contacted my associate and advised, without explanation, that she would not be attending the hearing. It was not surprising therefore that when the matter was called for hearing the applicant did not appear.

4                     Mr Wigney, counsel for the respondent, informed the Court that the applicant had departed Australia on 18 March 2004 and that he had initially been instructed to request the Court to dismiss the proceeding under O 32 r 2 on the basis of the applicant’s non-appearance. On further instructions however, he asked that the Court proceed to determine the application. Although the application in this proceeding was in the broadest possible terms, it did raise the issue of procedural fairness and accordingly, Mr Wigney was content for me to treat the application in this proceeding as raising the same issues and seeking the same relief as the amended application in NARU and to adopt in this proceeding the submissions made by him and senior counsel for the applicant in NARU.

5                     I have reviewed the transcript of the applicant’s interview with the Tribunal and there are no significant differences between the applicant’s experience and that of her sister. In this case, as in the interview with the applicant’s sister, the Tribunal expressed scepticism about the claim based on public opposition to female circumcision but did not put to the applicant any concern that the Wawira letter (see NARU at [8]-[11]) was not genuine. For the reasons I gave in NARU it is my opinion that this was a breach of procedural fairness amounting to jurisdictional error.

6                     The orders in this proceeding must therefore be the same as in NARU with the effect that the decision of the Tribunal must be set aside and the matter remitted to the Tribunal for redetermination in accordance with these reasons. The respondent must pay the costs of the applicant.

Associate:

Dated: 7 July 2004