Applicant S411/2003 v Minister for Immigration and Multicultural Affairs
[2007] FCA 623
•2 May 2007
FEDERAL COURT OF AUSTRALIA
Applicant S411/2003 v Minister for Immigration & Multicultural Affairs [2007] FCA 623
APPLICANT S411/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NSD 235 OF 2007EDMONDS J
2 MAY 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 235 OF 2007
BETWEEN:
APPLICANT S411/2003
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE OF ORDER:
2 MAY 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The applicant pay the first respondent’s costs of the appeal.
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 235 OF 2007
BETWEEN:
APPLICANT S411/2003
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE:
2 MAY 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
This is an application for leave to appeal from a judgment of the Federal Magistrates Court (Smith FM) dismissing an application for review of a decision of the second respondent (‘the Tribunal’) dated 23 January 1997 affirming a decision of a delegate of the first respondent (‘the Minister’) made on 31 March 1994 to refuse the applicant a protection visa.
THE LEAVE APPLICATION
In support of his application for leave to appeal, the applicant filed an affidavit sworn by him together with a draft notice of appeal.
During the course of the hearing the applicant informed me that he had been informed by the Registry that the judgment of the Federal Magistrates Court was interlocutory and that he would therefore need to apply for leave to appeal the judgment in this Court. There is authority that an order refusing an application for an order nisi is an interlocutory order: Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 68 ALJR 179 at 180.
This proceeding commenced as an application for an order nisi in the High Court of Australia which, by order of a judge of that court, was remitted to this Court and then, by order of a judge of this Court, transferred to the Federal Magistrates Court. It was accepted below that O 51A of the Federal Court Rules (‘the Rules’) would apply to the remitted matter, in the absence of the Federal Magistrates Court having rules which specifically address applications for orders nisi remitted by the High Court of Australia (see Federal Magistrates Act 1999 (Cth), s 43(2)(b), and Federal Magistrates Court Rules 2001 (Cth), r 1.05(2)). His Honour observed that under O 51A r 5 a remitted application for an order nisi is normally determined on the merits of the applicant’s entitlement to final relief by way of Constitutional writs, and not whether he has an arguable case. The preliminary issue is only addressed if the Court makes an order under O 51A r 5(2).
At [7] his Honour said:
‘In the present case, no order under r.5(2) was made in the Federal Court before the matter was remitted to this Court, and no order under that rule was sought nor was made in this Court. Given the above chronology, and the implications of the new time limits introduced by the Migration Litigation Reform Act 2005 (Cth), I consider that it is not appropriate for me to limit the nature of my consideration to the preliminary issue. I shall therefore allow r.5(1) to take effect, and have today addressed the final merits of the applicant’s entitlement to relief in relation to the Tribunal’s decision which is the subject of the proceeding.’
Order 51A r 5 of the Rules provides:
‘ (1)Subject to subrule (2) and to any Act to the contrary, when the Court or a Judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the Court or Judge:
(a)will at the same time hear the parties on whether, if the order nisi were made, it should be made absolute; and
(b)if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute.
(2)In a particular case, the Court or Judge may order that subrule (1), or any part of it, does not apply.’
In NAHQ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 134 FCR 377, Whitlam and Kiefel JJ, in considering a purported appeal against a judgment, noted (at [2]) that the primary judge did not advert to O 51A r 5 and concluded that ‘it may be accepted that he heard the application as if it were an application for final relief’. However, their Honours said (at [3]):
‘Nonetheless, no order nisi was made and the only application formally before Wilcox J remained one for such an order. An order refusing an application for an order nisi is an interlocutory order: Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 68 ALJR 179 at 180. The order pronounced by Wilcox J can only be regarded as such an order.’
The third member of the Full Court in NAHQ, Moore J, at [6] entertained some doubts whether the judgment to which the appeal related was interlocutory.
In Applicant S422/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 138 FCR 151, Dowsett and Lander JJ, North J preferring not to express a view on the issue, said (at [35] – [36]):
‘[35] One further matter requires comment. Counsel for the Minister submitted that if the appellant did not require an extension of time in which to appeal, the order under appeal should be treated as an order refusing an application for an order nisi. Such orders have traditionally been considered to be interlocutory, therefore necessitating leave to appeal. See Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1993) 67 ALJR 389 at 390. It occurred to us in the course of argument that the terms of O 51A r 5 of the Federal Court Rules may have changed the nature of an application for an order nisi remitted to this Court by the High Court. That order provides:
(1) Subject to subrule (2) and to any Act to the contrary, when the Court or a Judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the Court or Judge:
(a) will at the same time hear the parties on whether, if the order nisi were made, it should be made absolute; and
(b) if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute.
(2)In a particular case, the Court or Judge may order that subrule (1), or any part of it, does not apply.
[36] We were referred to the Full Court decision in NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 377. The majority (Whitlam and Kiefel JJ) concluded that notwithstanding the provisions of O 51A r 5, a decision refusing an order nisi in a remitted matter was an interlocutory judgment and therefore not subject to appeal as of right. In the absence of any submissions to the contrary, we should follow that decision. Nonetheless we see some substance in the doubts expressed by Moore J in his reasons for judgment in NAHQ.’
In Applicants S61 of 2002 v Refugee Review Tribunal & Anor (2004) 136 FCR 122, Branson J, with whose reasons Moore and Emmett JJ agreed, said (at [39]):
‘[39] In view of the different views given expression in NAHQ and Applicant S422, this Full Court is not, as it seems to me, restrained by the usual rule of deference from giving effect to its own view as to whether the judgment sought to be appealed from in this case is an interlocutory judgment or a final judgment.’
Her Honour went on (at [40]):
‘[40] As indicated above, I do not doubt that his Honour intended by his order to dismiss on the merits the appellants’ application for writs of certiorari and mandamus. In my view, no question arises as to the power of his Honour to make an order with the effect intended by his Honour. It does not matter, as it seems to me, whether his Honour is to be understood as having proceeded under an authority implicit in O 51A r 5, or under O 19 r 1 having impliedly waived the requirement for the filing of a notice of motion. However, for the reasons given above, I am satisfied that O 51A r 5 gave his Honour adequate authority to proceed as he did.’
Similarly, I do not think there is any doubt that O 51A r 5 gave his Honour below adequate authority to proceed as he did. In the circumstances, I am of the view that the judgment below is final and not interlocutory and that the applicant does not require leave to appeal. I therefore propose to treat the applicant’s leave application together with his draft notice of appeal as a competent appeal.
BACKGROUND
The applicant is a citizen of Bangladesh who arrived in Australia in March 1992 and lodged an application for a protection visa on 9 November 1993. On 31 March 1994 a delegate of the Minister refused to grant the protection visa and, on 22 April 1994, the applicant applied for a review of that decision.
The applicant claimed to fear persecution because he was a member of a branch of the Jatiya Party while at university. The applicant claimed that his father was the General Secretary of that branch of the Jatiya Party and that his father worked for a government agency during the rule of General Ershad. The applicant claimed that he and other members of the Jatiya Party became targets for systematic persecution following the downfall of General Ershad in December 1990, particularly by members of the Bangladesh National Party who then took power.
THE DECISION OF THE TRIBUNAL
The Tribunal accepted that the applicant may have been a member of a branch of the Jatiya Party in Bangladesh from 1986 until his departure in March 1992 and that his father worked for the Civil Aviation Authority and was the General Secretary of that branch of the Jatiya Party until his departure from Bangladesh in 1991. The Tribunal noted that the applicant’s family are relatively wealthy in the context of Bangladesh society and accepted that they had close connections with senior politicians including former President Ershad.
The Tribunal referred to the general situation in Bangladesh and outlined how it had changed on the fall of the Ershad regime.
The Tribunal accepted, in spite of the inconsistencies in his evidence, that the applicant may have been detained and questioned regarding his father’s whereabouts and the whereabouts of other senior Jatiya Party officials. However, the Tribunal observed that it is an assessment of the future risk to the applicant which determines whether or not he can be regarded as a refugee. The Tribunal then went on to observe that it did not find that the current situation in Bangladesh, with due regard to the applicant’s past experiences, will cause the applicant to face a real chance of persecution for political reasons on his return to Bangladesh, and in the reasonably foreseeable future there. It gave three reasons for this finding:
1.It was evident from the fact that the applicant maintained his position at the Drug Rehabilitation Centre in Dhaka from the time of the regime change until his departure from Bangladesh in March 1992 that his circumstances were not as extreme as to force him into hiding. He maintained his work and he maintained his address in the family residences throughout this time. According to the applicant’s sworn testimony at the hearing, he was able to live at the family home in Kushti for several months without experiencing any problems of harassment such as he allegedly experienced in Dhaka.
2.The applicant was able to depart Bangladesh legally and under his own name without incurring any difficulty. Furthermore, the applicant had obtained an extension on his passport from the Bangladesh High Commission in Canberra, again without incurring any difficulty. In the Tribunal’s view this indicated both a lack of fear of Bangladesh authorities on the part of the applicant and a lack of adverse interest in the applicant on the part of the authorities.
3.Significant changes have occurred in the political situation in Bangladesh since the applicant’s departure in 1992. The June 1996 elections have seen a new government formed the Awami League with the Jatiya Party as a coalition partner. In the Tribunal’s view, this change in government significantly reduces the chance of the applicant facing persecution for his political opinions on his return to Bangladesh to one that is extremely remote.
In summary, having considered all the evidence before it both separately and cumulatively, the Tribunal found that the applicant did not face a real chance of persecution for a Convention reason in the reasonably foreseeable future in Bangladesh. As such, the applicant’s fears of persecution were not well-founded and he could not be regarded as a refugee warranting international protection.
The Tribunal concluded that, having considered the evidence as a whole, it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant did not satisfy the criterion set out in s 36(2) of the Migration Act 1958 (Cth) (‘the Act’) for the grant of a protection visa.
IN THE FEDERAL MAGISTRATES COURT
His Honour referred to the Tribunal’s findings and its reasons for those findings, outlined above. At [19] his Honour said:
‘The essential reason for the Tribunal’s conclusion … was that the chance of the applicant facing persecution, including threats and violence at the hands of opposing political members of opposing political parties, had been reduced “to one that is remote”. It concluded that “the Applicant’s fears of persecution are not well-founded and he cannot be regarded as a refugee warranting international protection”.’
His Honour went on the say (at [20]):
‘I consider that the Tribunal’s decision did address the correct legal issue which was presented to it by the law as it stood at that time, which was whether “the applicant is a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol” in terms of s.36(2) of the Act.’
Finally, his Honour said that he could see no basis upon which the applicant had made out any entitlement to writs of mandamus or certiorari in relation to the decision of the Tribunal made in 1997 and therefore concluded that it was appropriate to dismiss his application for an order nisi and refused him relief.
APPEAL TO THIS COURT
The draft notice of appeal annexed to the application for leave to appeal contained three grounds:
1.That the Federal Magistrate erred in considering that the Tribunal made a jurisdictional error when the Tribunal assessed the applicant’s claim.
2.That the Federal Magistrate failed to find out that the Tribunal did not comply with s 424A and s 430 of the Act when it made its decision.
3.That the court did not consider that the Tribunal denied the applicant natural justice.
The applicant filed written submissions in respect of each of these grounds and he also made oral submissions on the hearing of the appeal. However, nothing in the written submissions or in the oral submissions can sustain any of the grounds of appeal.
The totality of the applicant’s case in respect of the first ground – jurisdictional error – was focused on the Tribunal’s acceptance of the findings in [15] and [17] above and the Tribunal’s conclusion, for the reasons referred to in [18] above, that the applicant did not face a real chance of persecution for a Convention reason in the reasonably foreseeable future in Bangladesh. In the applicant’s submission, the Tribunal’s acceptance of the earlier findings and its conclusion were contradictory. Like his Honour below, I cannot agree. Read in context, the conclusion arrived at by the Tribunal was one which, on the evidence, was entirely open to it. The process of reasoning was not infected with any error of the kind alleged.
Turning to the second ground, the applicant alleges that his Honour below failed to find that the Tribunal did not comply with s 424A and s 430 of the Act. This ground may be quickly disposed of. At the time of the Tribunal’s decision, s 424A was not in the Act so that even if I was minded to find, which I hasten to add I am not, that relevant information in terms of s 424A should have been given to the applicant, there was no such obligation in the Act at the time of the Tribunal’s decision. So far as a failure to comply with s 430 is concerned, the applicant in his written submissions submitted that the Tribunal gave insufficient or inadequate reasons and findings for its decision and did not refer to any evidence or material on which the findings were based and that the court below should have been alive to this. I cannot agree. The Tribunal’s findings and reasons for those findings were both sufficient and adequate to comply with the requirements of that provision.
Finally, the applicant relies on the ground that the court below should have identified that the Tribunal denied the applicant natural justice. In this regard he refers to s 420 of the Act and relies on the matters previously relied on in relation to the first ground, specifically its acceptance of the harassment, persecution and intimidation of the applicant which it found as against its conclusion that because of the changed circumstances his claim was to be rejected. Nothing put in the written submissions or orally could lead one to conclude that this process of reasoning on the part of the Tribunal involved the Tribunal in denying the applicant natural justice. Nor did it involve the Tribunal in carrying out its functions under the Act contrary to the mandate of s 420.
For these reasons, the applicant’s appeal must be dismissed.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate:
Dated: 2 May 2007
Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr J Smith Solicitor for the First Respondent: Australian Government Solicitor
Date of Hearing: 30 April 2007 Date of Judgment: 2 May 2007
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