FEDERAL COURT OF AUSTRALIA

S2013 of 2003 v Refugee Review Tribunal [2004] FCA 1764

S2013 OF 2003 v REFUGEE REVIEW TRIBUNAL

N2249 OF 2003

EMMETT J

20 FEBRUARY 2004

SYDNEY

THE COURT ORDERS THAT:

1.         the application for an order nisi be refused.

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

REASONS FOR JUDGMENT

1                     The applicant in this proceeding is a citizen of Pakistan.  He arrived in Australia in July 1992.  On 11 March 1996 he applied for a protection visa under the Migration Act 1958 (Cth) (‘the Act’).  On 22 July 1996 a delegate of the Minister for Immigration & Multicultural Affairs (‘the Minister’) refused the application for a protection visa.  The applicant then lodged an application for review of that decision by the Refugee Review Tribunal (‘the Tribunal’) on 8 August 1996.  On 15 December 1997, the Tribunal affirmed the decision not to grant a protection visa.

2                     In doing so, the Tribunal furnished detailed reasons running to some 33 pages.  In a section of its reasons commencing with the heading ‘Findings and Reasons for Decision’ the Tribunal observed that it found the applicant to be a most unsatisfactory witness.  The Tribunal, in its reasons, set out the inconsistencies in the documents produced by the applicant together with his original application, for which he was unable to offer any explanation.  Having regard to the view that the Tribunal formed with regard to the applicant’s credibility, it did not accept the applicant’s claims.  The Tribunal set out, in some detail, the various claims made by the applicant that it did not accept, having regard to the findings made about his credibility.  Those claims included a claim that the applicant had been arrested and that he had spent some time hiding from police before coming to Australia. 

3                     At some stage thereafter, the applicant was joined as a representative party in proceeding S89 of 1999 in the High Court of Australia, Lie v the Refugee Review Tribunal & Ors, one of two proceedings in the High Court, the other being Muin v Refugee Review Tribunal, S36 of 1999:  [2002] HCA 30.  On 25 November 2002 Gaudron J ordered that leave be granted to the applicant in that proceeding, together with others named in the schedule to the proceeding, to file an application seeking an order nisi in relation to the decision of the Tribunal on or before 1 January 2003.  Her Honour ordered that any application so filed was to be remitted instanter to this Court.

4                     Her Honour also reserved liberty to apply at any time prior to 30 May to extend the period of time within which an application for an order nisi could be filed.  That time was extended by McHugh J to 20 June 2003.  On that day a draft order nisi and affidavit of Adrian Joel, solicitor, were filed in the High Court.  The order nisi sought writ relief in respect of the Tribunal’s decision and an order that there be an enlargement of time to permit commencement of the proceeding.  The ground stated was that the Tribunal failed to accord the applicant procedural fairness. 

5                     The affidavit of Mr Joel simply referred to the reasons of the Minister’s delegate and the reasons of the Tribunal, and the fact that the applicant had been joined as a representative party in the Lie proceeding.  The matter has been before me for directions on a number of occasions.  Until 13 February 2004 the applicant was represented by Mr Adrian Joel, solicitor, when the applicant filed a notice of intention to act in person.  The applicant has been present in court on a number of occasions since that time, when the matter, together with some 700 other matters, have been before me for directions. 

6                     For reasons that I have already given earlier today, I have refused orders nisi in in excess of 700 matters commenced by Mr Joel at about the same time as he commenced this proceeding on behalf of the applicant.  The applicant now seeks further time within which to collect data.  He was unable to indicate to me the nature of the data, except that it was photographs and similar material to support his case for being entitled to a protection visa.  He did not indicate a desire to obtain any material that would disclose any grounds upon which he would be entitled to Constitutional writ relief in respect of the decision of the Tribunal. 

7                     I have recently refused orders nisi in relation to more than 700 matters for reasons that I then gave in Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289.  My reasons in relation to those matters are applicable to this application.  I do not consider that there would be any utility in giving the applicant further time to gather material of the nature that he has described.  In the absence of such material, it is clear that the application for an order nisi must fail.  The material before me does not disclose an arguable case and there is nothing suggested by the applicant to indicate that he would be able to gather material that would overcome the substantial delay in commencement of any proceeding for review, apart from the question of whether there is any ground for review in the first place. 

8                     Accordingly, I decline to give the applicant time to file any further material.  It follows that the application for an order nisi should be refused.  The refusal of an order nisi, of course, would not be a bar to the commencement of a subsequent proceeding if the applicant is able to formulate a basis upon which he is entitled to relief and is able to explain the delay in seeking relief in respect of the Tribunal’s decision. 

Associate:

Dated:              20 January 2005