Applicant S356 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 425

FEDERAL COURT OF AUSTRALIA

Applicant S356 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 425

APPLICANT S356 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & Ors

N 1410 OF 2003

EMMETT J
3 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1410 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT S356
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

KIM ROSSER
MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

3 FEBRUARY 2004

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	N 1410 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT S356
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

KIM ROSSER
MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	EMMETT J
DATE:	3 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh.  He arrived in Australia on 11 July 1997.  On 4 September 1997, he lodged an application for a protection (Class AZ) visa.  On 13 March 1998, a delegate of the first respondent, the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’), refused to grant a protection visa.  On 7 April 1998, the applicant applied for review of that decision by the Refugee Review Tribunal (‘the Tribunal’).  On 26 May 2000, the Tribunal affirmed the decision not to grant a protection visa. 

2. The applicant then applied to this Court for review of the Tribunal’s decision under the Migration Act 1958 (Cth) (‘the Act’). After an amended application had been filed, the only ground upon which the applicant relied was s 476(1)(a) of the Act (as it then provided). The applicant asserted that the Tribunal had failed to observe procedures that are required by s 430 of the Act to be observed in connection with the making of a decision. For reasons that I gave on 9 October 2000, I dismissed the application. On 20 June 2003, the applicant filed a draft order nisi in the High Court of Australia, supported by an affidavit.  That affidavit disclosed no substantial grounds. 

3. The grounds specified in the draft order nisi were in substance 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 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 in being denied a reasonable opportunity to be heard;

   (e)the Minister failed to address the correct legal question;

   (f)the Minister’s delegate failed to reach a state of satisfaction based upon the correct understanding of the law; and

   (b)the decision of the Minister’s delegate was made in breach of the rules of natural justice.

4. The matter was remitted to this Court.  On 31 October 2003, I ordered that the applicant file, no later than 27 January 2004, a statement of contentions of relevant facts and law setting out:

   (a)       particulars of the grounds relied upon;

   (b)reasons why an extension of time should be granted; and

   (c)reasons why the doctrines of res judicata, issue or Anshun estoppel should not apply.

   I also directed that any affidavits intended to be relied upon, be filed by that date. 

5. On 28 January 2004, an affidavit sworn on 26 January 2004, was filed on behalf of the applicant.  Apart from reciting the history of the applicant’s dealings with the Minister and the Tribunal, the affidavit said:

   ‘I strongly believe that for me it is never possible to return to Bangladesh as both Awami League and BNP are in a strong position.  Even to imagine returning to Bangladesh would be suicidal for me. 

   DIMIA did not make any attempt to interview us and rejected our application.

   RRT generalized our persecution for the whole society of Bangladesh. 

   RRT said that there would be informal hearing, but the hearing was formal and we did not know the contents of the hearing. 

   RRT did not believe our documents without making any further investigation.’

6. The applicant was represented by counsel at the earlier hearing before me, although he is no longer represented.  I do not regard the applicant’s affidavit as in substantive compliance with the direction.  If that affidavit is all that the applicant proposes to rely upon, then the application is doomed to failure.  The applicant asked for further time to obtain some documents relating to his time in Bangladesh.  Clearly, documents from Bangladesh could not be relevant to the question of whether the decision of the Tribunal was attended with error amounting to jurisdictional error, with the consequence that the decision was not a privative clause decision within the meaning of s 474(2). 

7. In the circumstances, I consider that it is appropriate to accede to the Minister’s application that the application be dismissed for want of substantive compliance with the direction that I gave on 31 October 2003. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett .

Associate:

Dated:             15 April 2004

Applicant:	The applicant appeared in person.
Solicitor for the Respondent:	Mr A Markus, Australian Government Solicitor
Dates of Hearing:	3 February 2004
Date of Judgment:	3 February 2004