FEDERAL COURT OF AUSTRALIA

Applicant S354 of 2003 v Refugee Review Tribunal [2005] FCA 1758

APPLICANT S354 of 2003 v REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 2484 of 2003

MOORE J

29 NOVEMBER 2005

SYDNEY

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The Secretary of the Department of Immigration and Multicultural and Indigenous Affairs and the Commonwealth of Australia be removed as respondents to the proceedings.

2.      The Minister for Immigration and Multicultural and Indigenous Affairs be added as the second respondent to the proceedings.

3.      The application for an order nisi be dismissed.

4.      The applicant pay the Minister for Immigration and Multicultural and Indigenous Affairs' costs fixed in the sum of $1500.

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

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an application for an order nisi filed in the High Court on 20 June 2003 and remitted to this Court.  The applicant seeks to challenge a decision of the Refugee Review Tribunal ("the Tribunal") of 26 October 1993.  In that decision the Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") to refuse to grant the applicant a protection visa.  The applicant's claims were based on activities he claimed to have undertaken in India as an anti-drug campaigner.

2                     The Tribunal approached the applicant's claims on the basis, and in my opinion correctly, that the applicant was a member of a particular social group.  It is not apparent to me that the Tribunal addresses with absolute clarity what the social group was said to be, whether it was a recognisable and cognisable group, and whether membership of that group exposed the applicant to a real risk of harm.  Indeed, that is the substance of the submissions made by the applicant in his written submissions filed on 9 December 2004.

3                     However, ultimately I have to decide whether an arguable case has been made out for the grant of an order nisi.  Even if some error attended the reasoning of the Tribunal in relation to his membership of the particular social group, the Tribunal made a clear finding based on a concession by the applicant that he could relocate and, having relocated, would not be at risk of harm.  The Tribunal went on to conclude, as it was obliged to, that the relocation of the applicant was reasonable. 

4                     Consideration of the relocation issue was linked to the Tribunal's consideration of whether the applicant could avail himself of the protection of the state, and no real attack has been made on that finding of the Tribunal.  It appears to me that ultimately the applicant will almost certainly fail in any hearing of any rule nisi, if such a rule issued, having regard to the Tribunal's finding about relocation. 

5                     In those circumstances, it appears to me the appropriate order is to dismiss the application for the order nisi and order the applicant pay the Minister's costs, fixed in the sum of $1500.  As a procedural matter, the presently named second and third respondent, the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs and the Commonwealth of Australia, respectively, should be removed as respondents and the Minister for Immigration and Multicultural and Indigenous Affairs should be added as a second respondent. 

Associate:

Dated:              13 December 2005