Applicant S193/2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1562

FEDERAL COURT OF AUSTRALIA

Applicant S193/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1562

APPLICANT S193 OF 2003 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ORS

NSD 970 OF 2003

BENNETT J
4 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 970 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT S193/2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MRS PATRICIA LEEHY
MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

BENNETT

DATE OF ORDER:

4 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. Subrule (1) of Order 51A rule 5 not apply to this application.
2. The application for an order nisi be refused.
3. The applicant pay the respondents’ 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 970 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT S193/2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MRS PATRICIA LEEHY MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	BENNETT
DATE:	4 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The High Court has remitted to this Court an application for an order nisi requiring the respondents to show cause why constitutional writs should not be issued in respect of a decision of the Refugee Review Tribunal handed down on 20 September 2000.  The Tribunal affirmed a decision of a delegate of the first respondent, refusing the applicant, a citizen of Bangladesh, a protection visa.

2. To obtain an order nisi an applicant must show that he or she has at least an arguable case that the Tribunal, whose proceedings are called into question, has erred in a manner that would justify final relief by way of an order absolute.

3. I propose to deal with this application on the papers.

4. The applicant’s affidavit suggests that he wishes to avail himself of the reasoning of the High court in Muin v Refugee Review Tribunal (2002) 190 ALR 601. The applicant claims that he received a letter from the Tribunal advising him that it had considered the materials before it in relation to his application and that it was unable to make a decision in his favour on that information alone. The applicant was invited to attend a hearing. The applicant claims; ‘It is understandable that the letter misled me, or that I would have taken any particular steps had been told, if it was the case, that the Tribunal has been provided with them.’

5. The applicant does not suggest, however, that the Tribunal did not receive the Part B documents.  The applicant’s complaint appears to be that the Tribunal ‘did not read all’ of the documents referred to in Part B of the delegate’s decision and that it took into consideration some relevant information but not all of it.  The applicant complains that the Tribunal only took into consideration those Part B documents that were adverse to his case. 

6. The applicant’s affidavit and written submissions are drafted at a high level of generality.  The submissions only identify ‘Bangladesh US reports and others’ as the information favourable to his case referred to in Part B of the delegate’s decision.  However, the Tribunal specifically refers in its decision to the US State Department’s Country Report on Human Rights Practices, 1999 for Bangladesh and to the US Bureau of Democracy, Human Rights and Labor in a ‘Profile of Asylum Claims and Country Conditions’ for Bangladesh, released February 1998.  There is nothing to indicate that the Tribunal did not have before it or did not consider the documents referred to in Part B of the delegate’s decision. 

7. The applicant did not explain how the information which he said was not taken into account would have assisted his case.  The Tribunal accepted the applicant’s account of events but simply was not satisfied that the intimidation that the applicant had suffered or would suffer in the future amounted to persecution.  The Tribunal found that the applicant was not a political activist but it did accept that the applicant may have been the victim of some form of intimidation by dissatisfied political colleagues of his former employer, the Prime Minister of Bangladesh.  Importantly, the Tribunal did not accept that such intimidation amounted to persecution. ‘No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence.. It was not enough .. to show that there was a real risk that, if he returned to his country, he might suffer further harm.  He had to show that the harm was persecution..’ per Kirby J in Minister for Immigration and Multicultural Affairs v S152/2003 (2004) 205 ALR 487 at [29]. The Tribunal also accepted that the applicant had suffered an arrest in the past but was not satisfied on the evidence that the arrest was for a Convention reason.

8. The Tribunal considered independent evidence to conclude that there is no official tolerance of politically-motivated violence by the authorities in Bangladesh.  Persecution requires serious harm and the failure of state protection (Minister for Immigration and Multicultural Affairs v S152/2003 (2004) 205 ALR 487). According to the applicant’s own evidence, it is his political opponents and not the Bangladeshi authorities whom he fears if he goes back to Bangladesh. Even if the applicant were to become a political activist on his return to Bangladesh, the Tribunal was not satisfied that he would be persecuted.

9. The applicant also asserts more generally that he was denied procedural fairness by the Tribunal.  No particulars of that claim have been provided. 

10. I have considered the papers filed in this case including the applicant’s submissions.  Having considered the decision of the Tribunal I do not think that any of the grounds referred to by the applicant is fairly arguable in this case.  Accordingly it would be inappropriate to grant an order nisi.

11. I propose to order that subrule (1) of Order 51A rule 5 not apply to this case and that the application for an order nisi be refused.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:            4 November 2005

Date of Judgment: 4 November 2005