Applicant S329 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1354

FEDERAL COURT OF AUSTRALIA

Applicant S329 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1354

APPLICANT S329 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 2438 of 2003

JACOBSON J
29 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2438 of 2003

BETWEEN:	APPLICANT S329 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	29 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an order nisi is dismissed.

2.The applicant is to pay the respondent’s 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	N 2438 of 2003

BETWEEN:	APPLICANT S329 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	29 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 23 July 1998, the Refugee Review Tribunal (“RRT”) affirmed a decision made by the respondent not to grant the applicant a protection visa under the Migration Act 1958 (Cth).

2. The applicant filed an application for order nisi in the High Court of Australia on 18 June 2003 seeking the issue of constitutional writs.  The application was remitted to this Court pursuant to orders made by Gaudron J, as varied by McHugh J, following the    delivery of judgment in Muin v The Refugee Review Tribunal (2002) 76 ALJR 966 (“Muin”).

3. By correspondence dated 12 November 2004, the District Registrar of the 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 7 December 2004.

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

   Background

5. The applicant is a citizen of Bangladesh.  He claims a well-founded fear of persecution because he is a Bihari, recognisable in Bangladesh because of his “Pakistani heritage”.  

6. In its reasons for decision, the RRT noted that the delegate’s decision indicates no detail had been provided of instances of discrimination or problems whilst the applicant was in Bangladesh.  Neither did the application for review detail any problems the applicant had whilst in Bangladesh.

7. The RRT noted that on 25 June 1998, the applicant’s advisor submitted newspaper articles in Bengali which had been translated, and related to some Biharis on hunger strike and gave some background to the Bihari issue.  No specific claims were made.

8. The applicant provided oral and further documentary evidence at the hearing, which the RRT found to indicate the applicant was very lacking in knowledge of key aspects of his claim.  It also found that the documents provided at the hearing were clearly false and concluded that the applicant was not a credible witness.  The RRT found that the applicant had fabricated his story, and did not have a well founded fear of persecution for a Convention reason.

   Discussion

9. The applicant’s written submissions contend that circumstances arising in relation to the consideration of his position by the RRT are sufficiently similar to those considered by the High Court in Muin to lead to a similar conclusion.   

10. However, the facts agreed in Muin upon which the decision of the High Court turned are absent in the present matter or at least have not been proved, nor has the applicant sought to prove them.  The applicant has failed to demonstrate a denial of procedural fairness; see NADR v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 465.

11. I have carefully considered the applicant’s written submissions.  Though lengthy, these submissions take issue with findings of fact made by the RRT and make unparticularised allegations of error of law and denial of procedural fairness.

12. I have taken into account the fact that the applicant is not legally represented.  However, it is plain that there is no jurisdictional error in the decision of the RRT. 

13. In these circumstances, the applicant has not made out an arguable case.  The application for an order nisi must be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Date:               29 September 2005

The Appellant is self represented
Solicitor for the Respondent:	Australian Government Solicitor
Date of Judgment:	29 September 2005