Applicant S361 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1618

FEDERAL COURT OF AUSTRALIA

Applicant S361 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1618

APPLICANT S361 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS

N1408 OF 2003

EMMETT J
4 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1408 OF 2003

BETWEEN:

APPLICANT S361 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

MS LESLEY HUNT 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	N1408 OF 2003

BETWEEN:

APPLICANT S361 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

MS LESLEY HUNT 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 national of Bangladesh who arrived in Australia on 11 March 1988.  He applied under the Migration Act 1958 (Cth) (‘the Act’) for refugee status and for refugee temporary entry permit on 23 May 1990. On 21 July 1994, a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), decided that the applicant is not a refugee and made a decision refusing to grant the applicant protection entry permits. The applicant applied for review of the delegate’s decision by the Refugee Review Tribunal (‘the Tribunal’) on 17 August 1994. On 12 December 1996, the Tribunal made a decision that it was not satisfied that the applicant was a refugee and affirmed the decision not to grant a protection visa.

2. The applicant subsequently became a party to a purported class action in the High Court.  On 20 June 2003, the applicant filed a draft order nisi seeking prerogative writ relief in the High Court in respect of the Tribunal’s decision.  The grounds specified in the draft order nisi may be summarised 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 on his application before the Minister’s delegate;

   (e)there has been a constructive failure of jurisdiction by the Minister’s delegate as the Minister’s delegate’s decision failed to address the correct legal question;

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

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

   Apart from anything else, there would be no jurisdiction on the part of this Court to entertain any relief in respect of the decision of the Minister’s delegate that was the subject of the review by the Tribunal. 

3. The matter was remitted to this Court by the High Court.  On 27 October 2003, I gave directions that the applicant file and serve, on or before 24 November 2003, a statement of contentions of relevant facts of law and any affidavits upon which the applicant intended to rely at the hearing.  That order has not been complied with and the Minister asks for an order under O 10 r  7(2) of the Federal Court Rules for summary dismissal of the application.

4. I have read the reasons of the Tribunal for affirming the decision of the delegate.  The Tribunal found that the applicant’s fears relate to his and his family’s experiences of natural disasters in Bangladesh and to their socio-economic circumstances.  The Tribunal accepted that those factors had caused very real difficulties for the applicant and his family.  However, the Tribunal considered that the difficulties do not relate in any way to any of the grounds referred to in the Refugees Convention.  The Tribunal considered the applicant and his family’s socio-economic circumstances were the result of the generalised socio-economic conditions existing in Bangladesh.  They are not the result of his being denied the right to work or to sustain a livelihood for a Convention reason.  On the basis of the evidence before it, the Tribunal found that the applicant does not face a real chance of persecution for a Convention reason in the reasonably foreseeable future in Bangladesh.  The Tribunal considered that the applicant cannot be regarded as a refugee. 

5. There is nothing on the face of the reasons to indicate any error on the part of the Tribunal.  No material has been adduced by the applicant to indicate any ground upon which this Court could interfere with any of the decisions sought to be reviewed.  In the circumstances, I consider that it is appropriate to accede to the Minister’s application. 

I certify that the preceding five (5) 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