Applicant S202/2003 v Refugee Review Tribunal
[2006] FCA 1714
•4 DECEMBER 2006
FEDERAL COURT OF AUSTRALIA
Applicant S202/2003 v Refugee Review Tribunal [2006] FCA 1714
MIGRATION – Tribunal refused to grant a protection visa to the applicant – application for an order nisi requiring Refugee Review Tribunal and Minister for Immigration and Multicultural Affairs to show cause why relief by way of constitutional writs and injunctions should not be granted – whether applicant had an arguable case for final relief – whether applicant denied procedural fairness because Tribunal did not look at all of the material relating to his application – whether matter should be reheard by Tribunal because applicant was ill in front of the Tribunal – Held: no evidence that Tribunal did not look at all material relating to applicant’s application – applicant did not establish an arguable case for the issue of an order nisi
Federal Court Rules O 51A r 5
APPLICANT S202/2003 v D KELLEGHAN, MEMBER OF THE REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
NSD 976 OF 2003
BRANSON J
4 DECEMBER 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 976 OF 2003
BETWEEN:
APPLICANT S202/2003
ApplicantAND:
D KELLEGHAN, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
First RespondentMINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent
JUDGE:
BRANSON J
DATE OF ORDER:
4 DECEMBER 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS:
1.To the extent that it is necessary to do so, that this application proceed ex parte pursuant to O 51A r 5(2) of the Federal Court Rules;
2.That the application for orders nisi against the first and second respondents be refused.
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 976 OF 2003
BETWEEN:
APPLICANT S202/2003
ApplicantAND:
D KELLEGHAN, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
First RespondentMINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent
JUDGE:
BRANSON J
DATE:
4 DECEMBER 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application for an order nisi requiring the Refugee Review Tribunal and the Minister for Immigration and Multicultural Affairs to show cause why relief by way of constitutional writs and injunctions should not be granted following a decision of the Tribunal to refuse to grant a protection visa to the applicant. For an order nisi to issue it is necessary for the applicant to demonstrate that he has an arguable case for the final relief sought by him. This matter has been referred to this Court by order of the High Court of Australia. The Court has decided to proceed ex parte on the basis that O 51A r 5(1) of the Federal Court Rules does not apply (see O 51A r 5(2)).
The applicant’s claim to be entitled to a protection visa was rejected by the Tribunal for reasons which overwhelmingly related to his credibility.
The Tribunal accepted that the applicant is an Ahmadi from Bangladesh notwithstanding that he had travelled to Australia on an Indian passport. It accepted independent evidence, which it set out in its written reasons for decision, that although there were isolated instances in the early 1990s when Ahmadi institutions in Bangladesh were attacked by fundamentalists, attacks have ceased as the Government had made clear that it would not accept them. The Tribunal found that Ahmadis are free to practice their religion openly and find it no bar to achieving high status in life. The Tribunal rejected the applicant’s claim that he was subject to persecution in Bangladesh for being an Ahmadi or for having married into an Ahmadi family.
The Tribunal was not satisfied that the applicant’s particular claims regarding adultery accusations, having a grenade thrown into his house, being beaten and being falsely charged with smuggling were credible. It found that he was prepared to invent scenarios to suit his convenience noting, by way of support, that he had admitted being untruthful with both the Indian and Bangladeshi authorities and had made, but when challenged not persisted with, an unsustainable claim before the Tribunal.
The Tribunal summarised its conclusions concerning the applicant in the following way:
‘I find that the applicant’s evidence is evasive, lacks credibility and is unsupported by independent evidence on the treatment of Ahmadis in Bangladesh. … I am not satisfied that he has a well-founded fear of persecution for the reasons he claims in Bangladesh. I am of the opinion that he came to Australia for reasons other than a need to seek protection from persecution.’
The applicant claims to have been denied procedural fairness because he does not believe that the Tribunal looked at all of the material relating to his application. The letter inviting him to attend a Tribunal hearing asserted that the Tribunal had looked at all of that material. The material, as listed in Part B of the record of the decision made by the Minister’s delegate, was constituted by the Department’s file, certain DFAT cables, DFAT’s country profile for Bangladesh dated July 1994, certain reports and briefing papers on Bangladesh and Professor Hathaway’s treatise on the Law of Refugee Status. The applicant asserts that, as a consequence of being misled into thinking that the Tribunal had that material, he ‘did not take steps to bring to its attention those parts of the documents or other similar material which favoured [his] claim.’
There is no evidence before the Court which provides support for the applicant’s belief that the Tribunal did not, as it claimed, look at all material relating to his application. Equally importantly the applicant has not identified any aspect of the relevant publications, or other material in existence at the date of the Tribunal’s decision, which he would have brought to the Tribunal’s attention had he not received the Tribunal’s letter.
The Tribunal’s decision was not founded on any of the material listed in Part B of the record of the delegate’s decision. The independent country information upon which the Tribunal relied in reaching its decision was, with one minor exception, published after the date of the decision of the delegate. The applicant has not suggested that the substantive content of this material was not drawn to his attention during his Tribunal hearing.
At the hearing of this application the applicant has placed before the Court material concerning the situation of Ahmadis in Bangladesh which post-dates the Tribunal’s decision. This material does not provide any support for the applicant’s claim to have been denied procedural fairness by the Tribunal. Nor does it otherwise suggest error affecting the decision of the Tribunal. I have refused a request from the applicant to give him further time to find supporting material. Bearing in mind that his application to the High Court was filed on 21 May 2003 I am satisfied that the applicant has had more than sufficient time to gather together material he wishes to rely on to support his application.
Nor do I accept the applicant’s submission that his case should be reheard by the Tribunal because he did not feel especially well in front of the Tribunal and was not in a good condition to put his case to the Tribunal. This issue is not identified in his application or either of his affidavits. I am not satisfied, in any event, that any error has been shown to affect the Tribunal's decision to proceed with its hearing when it did. The Tribunal, which had previously adjourned a hearing to suit the applicant’s convenience, noted that the applicant had a cold and made allowance for his illness.
I am satisfied that the applicant has not established an arguable case for the issue of an order nisi directed to either of the respondents. The orders nisi sought by this application are refused.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate:
Dated: 8 December 2006
Counsel for the Applicant: The Applicant appeared in person Counsel for the First and Second Respondents: The First and Second Respondents did not appear Solicitor for the First and Second Respondents: Australian Government Solicitor Date of Hearing: 4 December 2006 Date of Judgment: 4 December 2006
1
0
0