Applicant S246 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1690

FEDERAL COURT OF AUSTRALIA

Applicant S246 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1690

APPLICANT S246/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL & MEMBER OF THE REFUGEE REVIEW TRIBUNAL

NSD 2753 OF 2003

SACKVILLE J
23 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2753 OF 2003

BETWEEN:

APPLICANT S246/2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

SACKVILLE J

DATE OF ORDER:

23 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

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

2.        The application for an order nisi 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 2753 OF 2003

BETWEEN:

APPLICANT S246/2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	SACKVILLE J
DATE:	23 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant instituted proceedings in the High Court seeking constitutional writs and other relief in respect of a decision of the Refugee Review Tribunal (‘RRT’) made on 27 October 1997.  The High Court has remitted to this Court the application for an order nisi requiring the first respondent (‘the Minister’) to show cause why constitutional writs and other relief should not be issued.  I propose to deal with the application on the papers.

2. The applicant is a citizen of Bangladesh, who arrived in Australia on 14 September 1995.  On 18 December 1995, he lodged an application for a protection visa, claiming that he feared persecution in Bangladesh by reason of his political opinion, in particular his involvement with the Jatiya Party.

3. On 18 June 1996, a delegate of the Minister refused to grant the applicant a protection visa.  The applicant then applied for review to the RRT.  He was invited to appear at a hearing before the RRT and to give oral evidence.  In fact he gave oral evidence on 23 October 1997.

4. The RRT accepted that the applicant had been involved with the Jatiya Party from the time he was in High School and that he was a member of the Party at the date of the hearing.  However, the RRT was satisfied that the applicant’s involvement in the Party was at a very low level and consisted of no more than attending meetings and encouraging other people to join.

5. The RRT rejected the applicant’s claim that upon his return to Bangladesh in 1995, after spending three years in Cyprus, he had been charged as the result of his involvement in a political rally which ended in violence.  The RRT took into account that the applicant’s evidence was inconsistent with a statutory declaration he provided in support of his claim and that the applicant’s explanation for the inconsistency was unsatisfactory.  Other evidence given by the applicant was inconsistent with his earlier claims and his explanations were unconvincing.  The RRT did not accept the documents provided by the applicant in support of his case as genuine.  In particular, it rejected a newspaper report supposedly supporting the applicant’s case, pointing out that the article had been printed in a different font to other articles and was poorly spelt and ungrammatical.

6. The RRT also rejected the applicant’s claims that he had worked for a Jatiya candidate and that attempts were made on his life and that his family had experienced other forms of harassment.  The RRT noted that the applicant had failed to make these claims either in his application for a protection visa, at his interview with the Department or in his application for review to the RRT.  Accordingly, the RRT found that the claims were fabricated.

7. The RRT noted that the independent evidence indicated that there was nothing about the nature of his political activities which would put him at risk if he returned to Bangladesh.  The applicant has filed written submissions in support of his claim.  Some of the written submissions appear to have no bearing upon the circumstances of the applicant’s case.  Other parts of the submissions bear only upon the merits of the applicant’s claims.

8. The principal claim appears to be that the applicant was denied procedural fairness.  However, the RRT’s reasons clearly indicate that the applicant was given an opportunity to answer all material adverse to his case upon which the RRT relied.  In particular, the RRT member asked the applicant to explain discrepancies between evidence given at the hearing and claims made (or not made) in his original application or earlier statements.  Similarly, he was asked to explain anomalies in the documentation presented to the RRT and was invited to comment on the independent country information considered by the RRT member.  In my view, there is no arguable basis for a claim of denial of procedural fairness. 

9. The written submissions also invoke the High Court’s decision in Muin v Refugee Review Tribunal (2002) 190 ALR 601. However, the circumstances of the present case are quite different from those of Muin.

10. I note that s 424A of the Migration Act 1958 (Cth) was not in force at the time the RRT made its decision. Accordingly, no argument is available to the applicant that the RRT contravened that provision.

11. The application for an order nisi should 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 Sackville.

Associate:

Dated:             23 November 2005