Applicant S422 of 2002 v Minister for Immigration and Multicultural &

[2003] FCA 1560

FEDERAL COURT OF AUSTRALIA

Applicant S422 of 2002 v Minister for Immigration & Multicultural &
Indigenous Affairs [2003] FCA 1560

APPLICANT S422 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS

N 368 of 2003

LINDGREN J
17 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 368 OF 2003

BETWEEN:

APPLICANT S422 OF 2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

CHRIS KEHER, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

LINDGREN J

DATE OF ORDER:

17 DECEMBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The second respondent cease to be a party and in lieu of ‘Principal Member of the Refugee Review Tribunal’, ‘Refugee Review Tribunal’ be substituted as second respondent.

2.The third respondent, ‘Chris Keher, Member of the Refugee Review Tribunal’, cease to be a party.

3.The application be dismissed.

4.        The applicant pay the respondents’ 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 368 OF 2003

BETWEEN:

APPLICANT S422 OF 2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

CHRIS KEHER, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	LINDGREN J
DATE:	17 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 20 November 2002, the applicant commenced a proceeding in the High Court of Australia in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 21 March 2002 and handed down on 17 April 2002.

2. The Tribunal affirmed a decision of a delegate of the first respondent (‘the Delegate’ and ‘the Minister’, respectively) not to grant a protection visa to the applicant.  The applicant sought in the High Court proceeding in the first instance the issue of an order nisi for writs of certiorari and mandamus, as well as injunctive relief. 

3. On 6 February 2003 Gaudron J ordered that further proceedings in the action be remitted to this Court, and that the application proceed in this Court as if the steps already taken in the High Court had been taken in this Court. 

4. The applicant has not been legally represented in this proceeding but is assisted by a Bengali interpreter today. 

5. The applicant is a citizen of Bangladesh who arrived in Australia on 2 July 1999.  He arrived on a Singaporean passport which identified him as a citizen of Singapore.  On 6 August 1999 he lodged an application for a protection visa with the then Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) (‘the Act’). On 20 September 1999 the Delegate refused to grant a protection visa. On 14 October 1999 the applicant applied to the Tribunal for a review of that decision.

6. I need not say much of the reasons for decision of the Tribunal.  The Tribunal conducted a hearing on 21 March 2002 which the applicant, despite being invited to attend, and indicating that he would attend, did not in fact attend.  The Tribunal decided the application for review on the material before it and without the benefit of any questioning of the applicant or oral evidence from him.

7. The application for the protection visa was submitted through Mr Boni Amin of Little n’ Bons’ Associates, Migration and Language Services.  The application for the protection visa was accompanied by a letter dated 5 August 1999 from Mr Boni Amin which outlined the nature of the claims made by the applicant.  The form of application itself was brief and contained no work or education history of the applicant.  It stated that the applicant would submit a more detailed statement later.

8. The applicant claimed to have been born in Bangladesh in 1972, never to have married, to be a business man, and to have departed Bangladesh from Zia International Airport in Dhaka on 22 May 1999.  The ground of his application is a claim of persecution based on his homosexuality.  I treat this as a claim that he has a well-founded fear of persecution on account of belonging to a particular social group. 

9. The applicant claimed that a month before he left Bangladesh he was dragged from his rickshaw by ‘miscreants’ who beat him.  He said the market committee told him and his boyfriend, who was his business partner as well as his sexual partner, that they could no longer operate their business from the market.  He said they departed Bangladesh and went to Singapore, and that an agent in Singapore (of Pakistani background) advised them that he could get them into Australia.  The agent arranged Singaporean passports for them, but told them not to travel directly to Australia and to go first to Sri Lanka.

10. They did not travel together to Sri Lanka.  The applicant went first and waited for his boyfriend, who, however, did not arrive.  The applicant said he found out later that his boyfriend was arrested in Singapore and was in gaol there for ‘cheating’ (the Tribunal understood this to be a reference to the obtaining of the false Singaporean passport). 

11. The applicant travelled to Australia from Sri Lanka.  He presented only four photocopy pages of his Singaporean passport in his application.  One of those pages indicated that he arrived in Sri Lanka on 27 June 1999 and departed on 1 July 1999.  The passport was issued on 22 December 1998 in the applicant’s own name and stated that he was born in Singapore.  The passport also contained a copy of the applicant’s visa for entry to Australia issued on 22 May 1999.

12. The Tribunal observed that the application for the protection visa was vague and lacked detail.  The Member said that if the applicant had attended a hearing he would have been asked to provide more detail, including more information in relation to his claim of being in a homosexual relationship, and his claim that he had suffered persecution on account of his homosexuality.

13. The Member said that he would have questioned the applicant about the date of his departure from Bangladesh, as the Member thought it dubious that he left that country, arrived in Singapore, then met a person in Singapore who arranged a passport for him, and obtained the Australian visa, all on 22 May 1999.  The Member said he would have asked the applicant to produce his Bangladesh passport, and any other documents to establish that he in fact came from Bangladesh.

14. I mention these matters, as no doubt the Member did, to show that the Member had a number of areas of concern in connection with the applicant’s claims.  The result was that he was not satisfied on the evidence that the applicant had a well-founded fear of persecution on a Convention ground.

15. On the hearing today the applicant handed up a 10-page submission which I have read.  Most of the submission was directed to showing that the applicant was indeed a refugee as defined by the Convention.  In so far as the submission attacked the reasons for decision of the Tribunal, it did so only in very general terms.  I would not have been satisfied that any error, let alone jurisdictional error, on the part of the Tribunal was demonstrated.

16. The applicant told me from the Bar table that he did not attend the hearing before the Tribunal because he was in hospital when the letter of invitation arrived at his address, and that he became aware of the letter only after the hearing had taken place on 21 March 2002.  There is evidence before me in the form of an affidavit annexing registered post records of the Tribunal which satisfies me that a letter dated 7 February 2002 was posted to the applicant on 8 February 2002 inviting him to attend the hearing on 21 March 2002. 

17. In fact an earlier letter dated 6 February 2002 had been posted to the applicant on that date advising that the hearing would be held on Thursday 14 March 2002, but the later letter dated 7 February advised of a change in the hearing date to Thursday 21 March 2002.

18. Each letter was sent, one copy to the applicant in person at his residential address and another copy to his migration agent, Mr Boni Amin.

19. On or about 11 February 2002, the Tribunal received by facsimile the applicant’s affirmative response to the hearing invitation.  It is not clear, however, to which of the two letters referred to in [17] the applicant was responding.

20. Subsection 441A(4) of the Act allows for the invitation to attend a hearing to be sent by prepaid post within three working days of the date of the document to a person at the last address for service provided to the Tribunal by the recipient in connection with the review in question, or the last residential or business address provided to the Tribunal by the recipient in connection with that review. There is no dispute that the letters in this case were sent to the applicant at an address which was both the last address for service provided to the Tribunal by him and the last residential address provided to the Tribunal by him.

21. Importantly, subs 441C(4) of the Act provides that, if the Tribunal gives a document to a person by the method referred to in subs 441A(4), the person is taken to have received the document, if the document was despatched from a place in Australia to an address in Australia – seven working days after the date of the document. Accordingly, the relevant document here, being the letter dated 7 February 2002, is deemed to have been received by the applicant on 18 February 2002, and questions of the applicant’s hospitalisation and late receipt of the letter of invitation are beside the point.

22. I come now to a ground on which the application is to be dismissed.  The High Court Rules contain time limits for applications for certiorari and mandamus.  In the case of certiorari, O 55 r 17 requires that the application for that constitutional writ be made not later than six months after the date of the judgment or order in question.  In the case of mandamus, O 55 r 30 of those Rules provides for a time limit of two months.  There is, however, provision for the Court or a Justice to enlarge time:  see O 60 r 6 and O 55 r 30 of the High Court Rules.

23. An extension of time was not sought in the High Court.  The applicant did not apply before me for an extension of time either.  However, I treat him as having done so because, when I raised this matter with him, he said he had not been represented by a lawyer in the High Court.  As I noted earlier, he is not legally represented before me.

24. Treating the applicant as seeking an extension of time I refuse to grant an extension. The reason why I refuse it is that the application would be doomed to fail in any event.  For the reasons outlined at the beginning, no error is shown in the Tribunal’s handling of the application for review on the basis of the documentary materials which were before it.  The application should be dismissed with costs.

25. The applicant has wrongly joined as respondents both the individual member of the Tribunal who heard and determined the application for review and the Principal Member of the Tribunal.  The proper parties, however, are only the Minister and the Tribunal itself. 

26. The third respondent will be removed as a party, and for the second respondent there will be substituted the Refugee Review Tribunal.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:  24 December 2003

The applicant appeared in person but was assisted by an interpreter
Counsel for the respondents:	Mr T Reilly
Solicitor for the respondents:	Australian Government Solicitor
Date of Hearing:	17 December 2003
Date of Judgment:	17 December 2003