Applicant S207 of 2003 v Refugee Review Tribunal

[2005] FCA 1561

FEDERAL COURT OF AUSTRALIA

Applicant S207 of 2003 v Refugee Review Tribunal [2005] FCA 1561

APPLICANT S207 OF 2003 V REFUGEE REVIEW TRIBUNAL & ORS

NSD 980 OF 2003

BENNETT J
4 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 980 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT S207/2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

SECRETARY OF THE DEPARTMENT OF MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:

BENNETT J

DATE OF ORDER:

4 NOVEMBER2005

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 980 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT S207/2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

SECRETARY OF THE DEPARTMENT OF MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:	BENNETT J
DATE:	4 NOVEMBER2005
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 19 January 2001.  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 argues that at a ‘factual level [his] case differs substantially’ from Muin v Refugee Review Tribunal (2002) 190 ALR 601 but that ‘the nature of the denial of procedural fairness is very much similar.’

5. The applicant’s complaint appears to be that the Tribunal did not make the applicant aware of or allow him to respond to adverse material in possession of the Tribunal ‘categorised by the delegate of the Minister for Immigration and Multicultural Affairs as the Part B documents’, in particular a ‘DFAT report.’ He says that procedural fairness required the Tribunal to give him a reasonable opportunity to answer any information in its possession.  In the applicant’s written submissions he refers to a letter that ‘misled’ him but neither the letter nor the contents of the letter are in evidence.

6. There is nothing to indicate that the Tribunal did not have before it the documents referred to in Part B of the delegate’s decision.  The Tribunal specifically refers to Part B documents in its decision.  There is also nothing to suggest that the applicant did not know the Tribunal had been provided with the Part B documents. 

7. On the Tribunal’s findings, the contents of the Part B documents were irrelevant.  The applicant failed because the Tribunal regarded his factual claims as implausible.  For a variety of reasons, which it recounted in some detail in its reasons, the Tribunal was not satisfied that the applicant was who he claimed to be or that any of the incidents he claimed to have happened did in fact happen. 

8. The applicant also complains that the Tribunal did not consider unspecified ‘additional evidences’ supplied by the applicant and that there is no mention of these documents in the Tribunal’s reasons.  No particulars are provided.  In any event the absence of specific reference to particular documents in the Tribunal’s reasons does not of itself establish a failure to accord procedural fairness to the applicant. 

9. The applicant’s written submissions point to an alleged failure on the part of the Tribunal to investigate his claims.  There is no obligation on the Tribunal to order investigations into the applicant’s case.  Failure to do so does not amount to jurisdictional error.

10. The applicant also asserts more generally that he was denied procedural fairness and natural justice and accuses the Tribunal of bias.  The ‘particulars’ the applicant provides in his written submissions are merely general contentions, such as ‘the evidence and documents before the Tribunal were not properly assessed’.  Nothing in the material before me suggests that there was a denial of procedural fairness. I note that the applicant had the opportunity to make additional submissions within fourteen days after the Tribunal hearing. The Tribunal noted its receipt of further submissions from the applicant’s agent and held that no new or further claims were raised.  The applicant argued that the Tribunal was biased in that it was not neutral or fair, and ‘the Tribunal made up its mind before looking at the evidence.’  No further detail was provided. I reject that submission.  There is nothing in any of that material which supports the serious assertion that the Tribunal member approached the appellant's case with a closed mind. 

11. None of the grounds relied on by  the applicant is fairly arguable in this case.  Accordingly it would be inappropriate to grant an order nisi.

12. 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 twelve (12) 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