FEDERAL COURT OF AUSTRALIA

S354/2003 v Minister for Immigration and Citizenship [2007] FCA 1284

S354/2003 v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 68 OF 2007

MADGWICK J

14 AUGUST 2007

SYDNEY

THE COURT ORDERS THAT:

1.         The respondent be re-titled as 'Minister for Immigration and Citizenship'.

2.         The Refugee Review Tribunal be joined as second respondent.

3.         The application be dismissed.

4.         The applicant pay the first respondent's costs assessed in the sum of $3000.

5.         These orders are to lie in the Registry for 28 days from today before being perfected.

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

REASONS FOR JUDGMENT

HIS HONOUR

1                     This is an application for leave to appeal from a judgment of the Federal Magistrates Court given by Nicholls FM.  The applicant sought to challenge a decision of the Refugee Review Tribunal (“the Tribunal”) given as long ago as 26 October 1993.

2                     His Honour was dealing with an application to strike out the application before the court below, on the basis that it had been filed well out of time which, in a common sense way, it certainly had.  However, as the respondent clearly points out, the course of judicial authority, and in particular Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105 (which had not been decided when his Honour gave his decision), would indicate that for technical reasons the application to the court below was filed within time.  Nevertheless, that is far from the end of the matter.

3                     Among other things the Tribunal found that it would be reasonable for the applicant to relocate within his native India, so as to obviate any well-founded fear of harm.  The Minister submits that, even if the Tribunal had erred in other parts of its reasoning, the applicant would be doomed to fail because of this finding, on the basis of SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [27]-[29].

4                     Secondly, these proceedings are at least the second, and perhaps the third effort, by the applicant to challenge the Tribunal, and a previous case was dealt with in this Court by Moore J on 29 November 2005: see Applicant S354 of 2003 v Refugee Review Tribunal [2005] FCA 1758.  His Honour was considering the matter on remittal from the High Court and had to decide whether an arguable case had been made out to the ground of an order nisi.  Again, because of the relocation finding, among other things, his Honour said: "It appears to me that ultimately the applicant will almost certainly fail in any hearing of any rule nisi, if such a rule issued", and he dismissed the application.

5                     There is also, accordingly, a strong discretionary ground to reject the application based on the finality of litigation and the public interest in there being reasonable security in decision-making, long, long after the event.  I would have thought that at least by 2003 the applicant had actual personal knowledge of the Tribunal’s decision and its reasoning.  The application for leave to appeal must, therefore, be refused with costs.

6                     However, the orders that I will accordingly make are to lie in the Registry for 28 days before they are perfected.

7                     The reason for this is that the applicant has lived in this country now for over 15 years.  On one view it may be said that he has just exploited the system, but the plain fact is that he has been here for that period.  He speaks perfectly good workaday English.  He has asked that a friend assist him today.  That lady is a registered nurse.  She and her husband are friends of the applicant and have been supporting him for a number of years in order to keep him out of immigration detention and during his legal inability to work, a restriction which he seems to have observed.  Previous to that, he was a taxi driver.  He came to Australia with a friend whose circumstances did not appear to have been materially different from the applicant's.  The friend succeeding in obtaining permanent residency for refugee status.  It is difficult to think that the undoubted public interest in vindicating the integrity of the law and administrative processes is not outweighed by extending the hand of kindness to somebody who would appear to be a decent and useful Australian citizen, as he seems to have shown over many years in this country.

8                     My orders can lie in the Registry for 28 days to enable the applicant and his friends to make, or cause to be made, such further representations as they wish to the Minister.

9                     The application is dismissed.  Costs are assessed in the sum of $3000.

Associate:

Dated:         20 August 2007