Applicant S341 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1613

FEDERAL COURT OF AUSTRALIA

Applicant S341 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1613

APPLICANT S341 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS

N998 OF 2003

EMMETT J
4 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N998 OF 2003

BETWEEN:

APPLICANT S341 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

D KELLEGHAN, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

4 DECEMBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        the application be dismissed;

2.        the applicant pay the first 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	N998 OF 2003

BETWEEN:

APPLICANT S341 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

D KELLEGHAN, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	EMMETT J
DATE:	4 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh.  He arrived in Australia on 2 September 1999 and, on 1 October 1999, he lodged an application for a protection (class AZ) visa under the Migration Act 1958 (Cth) (‘the Act’). On 17 November 1999, a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa and, on 1 December 1999, the applicant applied for review of that decision by the Refugee Review Tribunal (‘the Tribunal’). On 19 May 2000, the Tribunal affirmed the decision not to grant a protection visa. The applicant applied to this Court for review of that decision and that application was dismissed.

2. The applicant subsequently became a party to a proceeding in the High Court of Australia.  On 19 June 2003, the applicant filed a draft order nisi seeking prerogative writ relief in relation to the decision of the Tribunal.  The grounds upon which that relief was sought were stated in general terms as follows:

   (a)the Tribunal did not follow the proper procedure required by the Act;

   (b)the Tribunal’s decision was affected by an error of law, jurisdictional error and lack of procedural fairness;

   (c)there was no evidence or other material to justify the making of the decision;

   (d)the applicant was denied natural justice;

   (e)there was a constructive failure of jurisdiction by the Minister’s failure to address the correct legal question;

   (f)there was a failure by the Minister to exercise his jurisdiction because he did not reach a state of satisfaction upon a correct understanding of the law;

   (g)the decision of the delegate was made in breach of rules of natural justice.

3. The matter was remitted to this Court and, on 27 October 2003, I ordered the applicant to file and serve, on or before 24 November 2003, a statement of contentions of relevant facts and law and any affidavits upon which the applicant intends to rely at the hearing.  That order was not complied with.  However, on 26 November 2003, the applicant filed, but did not serve, a document entitled ‘Affidavit’, which was not sworn.  The document reiterated, in general terms, matters going to the merits of the decision of the Tribunal.  Nothing was said as to the basis upon which the applicant was entitled to prerogative writ relief.  The Minister therefore asks that the Court dismiss the application pursuant to O 10 r 7(2) of the Federal Court Rules. 

4. I have considered the Tribunal’s reasons for its decision to affirm the decision of the delegate to refuse a protection visa.  The Tribunal considered that the applicant’s evidence lacked credibility.  The Tribunal considered that the independent evidence available to it did not support the applicant’s claim that he and all other members of the Freedom Party were under arrest or faced arrest by the current government in Bangladesh.  The Tribunal considered that the evidence did not support the applicant’s associated claim that the Bangladeshi government intended to prosecute all those who had been acquainted with Colonel Farouk and others involved in the Sheik Mujib assassination. 

5. The Tribunal found a lack of credibility in the applicant’s claims of having been active in the Freedom Party at all.  The Tribunal did not accept that a person who had been a prominent political activist and president of a branch of the party, as claimed by the applicant, would be ignorant of when the last election was held and, even more, not know that his own party had fielded candidates in that election.

6. The Tribunal considered that the applicant had a tendency to alter his evidence when challenged and that added to the Tribunal’s view that his claims lacked credibility.  The Tribunal was not satisfied that the applicant was a member of the Freedom Party and, therefore, was not satisfied that he experienced, or would experience, any harm over his claimed political opinion or activities.

7. There is nothing on the face of the reasons to indicate any error on the part of the Tribunal and no material has been adduced by the applicant in support of the grounds claimed in his draft order nisi for seeking prerogative writ relief in respect of the decision of the Tribunal.

8. In the circumstances, I consider that it is appropriate to accede to the Minister’s application for dismissal of the application on the ground of the applicant’s failure to comply with the directions made on 27 October 2003.  Accordingly, I propose to order the application be dismissed and that the applicant pay the Minister’s costs.

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

Associate:

Dated:            22 January 2004

Counsel for the Applicant:	The applicant appeared in person with the assistance of an interpreter
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	4 December 2003
Date of Judgment:	4 December 2003