Applicant S233/2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1710

FEDERAL COURT OF AUSTRALIA

Applicant S233/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1710

MIGRATION – Refugee Review Tribunal – application for order nisi – no issue of principle – application dismissed

APPLICANT S233/2003 v MR ROGER GIBSON, MEMBER OF THE REFUGEE REVIEW TRIBUNAL & MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1009 OF 2003

CONTI J
25 NOVEMBER 2005

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1009 OF 2003

BETWEEN:

APPLICANT S233/2003
APPLICANT

AND:

MR ROGER GIBSON, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

CONTI J

DATE OF ORDER:

25 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The applicant for order nisi be dismissed.

2.The applicant is to 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 1009 OF 2003

BETWEEN:

APPLICANT S233/2003
APPLICANT

AND:

MR ROGER GIBSON, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:	CONTI J
DATE:	25 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh who arrived in Australia on 23 March 1998.  On 22 April 1998 the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth). A decision was made by a Ministerial delegate to reject that application on 14 May 1998, which decision was affirmed on review by the Refugee Review Tribunal (‘Tribunal’) on 24 March 2000 for reasons that were handed down on 11 April 2000.

2. The applicant then apparently became associated with the proceedings in the High Court of Australia generally referred to as Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601. On 28 May 2003 the applicant filed in the High Court of Australia a draft order nisi seeking constitutional writ relief in respect of the decision of the Tribunal, together with an affidavit in support that he had sworn.  Pursuant to orders made by Gaudron J, the proceedings were remitted to this Court.

3. By correspondence dated 12 November 2004, the District Registrar of this Court advised the applicant that the Court proposed to consider whether there is an arguable case for the making of an order nisi on the basis of the written material before the Court.  The applicant was invited to file written submissions, and did so on 10 December 2004.

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

5. In his application for a protection visa and in his written and oral statements submitted to the Tribunal on review, the applicant claimed that in 1994 he had become a member of the Freedom Party in Bangladesh.  The appellant further claimed to have been the Organising Secretary of the Kotwali Thans Committee of that party in Dhaka, Bangladesh, to have been appointed as ‘Publication Secretary’ in 1995 and ‘Organising Secretary’ in 1996.  The applicant also claimed to have been studying in Singapore in the period 1993 to 1995, during which time he had of course allegedly joined the Freedom Party and been elected to several of the above positions.  As a result of his political opinions and standing, the applicant next claimed that he had suffered ill-treatment by the Awami League government and its activists, which political party was in natural opposition to the Freedom Party.  That alleged ill-treatment involved the lodgement of ‘false’ prosecutions against the applicant, arrest, kidnapping, torture, and the breaking and entering into of his home and concomitant theft of certain of its contents.  The applicant lodged a number of documents with the Tribunal, which, like his claims, were the subject of thorough description and analysis by the Tribunal in its written reasons for decision.

6. After considering the entirety of the applicant’s claims, and his evidence given during the hearing, the Tribunal concluded that the applicant was not a credible witness and that none of his claims should be accepted.  That finding was clearly open to the Tribunal on the information and evidence before it; in particular, the apparent inconsistencies between the applicant’s multiple accounts given at the hearing of particular events, the apparently fraudulent nature of the applicant’s documentation provided in support of his claims, the applicant’s failure to explain how he had simultaneously joined the Freedom Party and participated in its activities to the extent that he claimed whilst also studying full-time in Singapore and the applicant’s inability to explain the political beliefs of the Freedom party.  Accordingly, the Tribunal found that the applicant was not a person to whom Australia owed protection obligations.

7. The draft order nisi filed by the applicant purports to articulate numerous grounds for the constitutional writ relief sought, as do the written submissions filed by the applicant.  Although some of the grounds formulated amount to the assertion of a recognised head of jurisdictional error, namely the assertion that the Tribunal deprived the applicant of procedural fairness, those grounds are unarguably doomed to fail.  The majority of those asserted grounds lack any particularisation, and the limited particularisation that is provided in respect of the remainder of the grounds is completely inapplicable to the factual circumstances pertaining to the applicant and the Tribunal’s decision.  In the context of the relief claimed by the present applicant, there is no material that would show that it is at least arguable that the Tribunal fell into jurisdictional error in making its decision, such that orders ought to be made to quash the decision and to restrain the Minister from acting on it.

8. The material before me does not therefore disclose any basis on which I could reasonably conclude there is at least an arguable case for the grant of constitutional writ relief.  The application is dismissed and I order the applicant to pay the respondents’ costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:            25 November 2005

The applicant is self-represented
Solicitor for the Respondent:	Australian Government Solicitor
Date of Judgment:	25 November 2005