Applicant S 237 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1454

FEDERAL COURT OF AUSTRALIA

Applicant S 237 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1454

APPLICANT S 237 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1142 OF 2004

ALLSOP J
8 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1142 of 2004

BETWEEN:	APPLICANT S 237 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	8 NOVEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal from the orders made by Emmett J on 7 July 2004 be dismissed. 

2.The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1142 OF 2004

BETWEEN:	APPLICANT S 237 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	8 NOVEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 29 May 2003, the applicant filed a draft order nisi in the High Court of Australia seeking orders pursuant to s 75(v) of the Constitution. The application was supported by a short affidavit of 28 May 2003. The application for constitutional writs concerned the refusal of a protection visa made by a delegate of the Minister and affirmed by the Refugee Review Tribunal. The Refugee Review Tribunal's decision was made on 24 June 1996.

2. The application for constitutional writs was remitted to this Court by Gaudron J.  The matter came before Emmett J, and on 7 July 2004 his Honour made certain orders, which were as follows:

   1.O 51A r 5(1) of the Federal Court Rules doe not apply to this proceeding.

   2.The application for an order nisi be refused. 

   3.The applicant pay the Minister’s costs fixed at a sum of $200.

3. Those orders of his Honour were interlocutory; nevertheless, a notice of appeal was filed.  The Minister filed a notice of objection to competency.  Mr Markus, who appears for the respondent Minister, was content to have today's application dealt with as an application for leave to appeal. 

4. It is important for the applicant to understand what the nature of this application is.  It is for me to identify whether or not there is any arguable ground to conclude that Emmett J may have erred in the exercise of the power that he made.

5. His Honour identified the grounds of the order nisi.  His Honour had before him no material in the affidavit that would constitute an arguable case for review or in the order nisi itself.   His Honour briefly considered the reasons of the Tribunal.  On the basis of the paucity of the material before him he could not identify any basis upon which one could conclude that there was at least an arguable case for the grant of relief.  On the material before his Honour I can only agree.

6. The notice of appeal, which I will treat as an application for leave to appeal, formulates under grounds and orders sought a variety of complaints about the Tribunal's decision.  The handwritten notice of appeal relevantly is in the following terms:

   GROUNDS

   1.The decision of the tribunal involved a jurisdictional error of law being an error of law involving an incorrect interpretation of the applicable law to the facts of the case was found in the decision.

   ORDER SOUGHT

   a.The Tribunal Member refused to accept that the applicant has a well-founded fear of persecution on convention reasons.

   b.The Tribunal failed to take relevant considerations into account to excerciseing it’s power to determine the applicant as a refugee.

   c.The Tribunal member made a number of errors to decide the case.

   d.The redirect the applicant’s claim to the RRT for further consideration.

7. These matters throw no particular light on the complaint being made in respect of this applicant in connection with the reasons of the Tribunal. 

8. The applicant today filed a typed two-page body of submissions, which complain, amongst other things in an unparticularised way, as to a failure of procedural fairness and a failure to comply with s 424A of the Migration Act 1958 (Cth). None of the detailed oral submissions of the applicant made today, to which I will refer in a moment, gave any particularity of this. There was no basis before Emmett J to conclude that this complaint was before the Court when his Honour dealt with the application.

9. Various other complaints are made in the written submissions as to the contradictory nature and incorrectness of the Tribunal's decision.  None of those thus formulated gives rise to any error in the primary judge's reasons nor, I should say, gives rise to an arguable basis for the Tribunal having committed jurisdictional error.

10. The applicant was provided with an opportunity today to identify orally the complaints he has as to Emmett Js decision and the matter generally. 

11. The applicant's oral submissions concerned his position and his family's position in Bangladesh. It is unnecessary or me to recite the oral submissions in detail. A number of points, however, need be made. First, it was a recounting of the reasons why he and others in his family have sought political asylum outside Bangladesh. Secondly, that was fundamentally based upon the family's adherence to one particular political association, and the position of the family, in particular the father, in Bangladesh and their role in politics and the particular association. Thirdly, no particular complaint was made as to procedural fairness or s 424A. While it is perfectly understandable that the applicant would wish me to understand his personal view as to the persecution he says he will face should he return to Bangladesh and the errors of the Tribunal in failing to appreciate this, these are not matters which I am prepared to have agitated on this application. The role of this Court is not to re-hear factually all the matters before the Tribunal. In the application for an order nisi the applicant must demonstrate some arguable basis for the Tribunal having failed to exercise its statutory authority according to law.

12. Emmett J concluded that there had been no arguments placed before him or material placed before him, which would allow him to conclude that the Tribunal had arguably committed jurisdictional error.  That is a conclusion, which, on the material before him and the material before me, I agree.

13. The applicant sought to tender two extracts from a newspaper in Bengali.  I have not had them translated in detail, however, from questioning it would appear that the purpose of the tender was to demonstrate the dangerous position of supporters of the particular political association in Bangladesh at the moment.  In my view the documents are inadmissible on this application.  There is no basis for fresh evidence before me on this application.  However, I will have the two papers stapled together and marked MFI1 and they will remain with the papers lest any further application be made.

14. The orders for the court are:

    1.The application for leave to appeal from the orders made by Emmett J on 7 July 2004 be dismissed. 

    2.The applicant pay the respondent’s costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             12 November 2004

The Applicant appeared in person with the assistance of an interpreter.
Counsel for the Respondent:	Mr A Markus (Slr)
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 November 2004
Date of Judgment:	8 November 2004