NADR of 2001 v MIMIA

[2003] HCATrans 281

[2003] HCATrans 281

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S363 of 2002

B e t w e e n -

NADR OF 2001

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 AUGUST 2003, AT 11.59 AM

Copyright in the High Court of Australia

NADR appeared in person.

MR R.J. BROMWICH:   May it please the Court, I appear for the respondent.  (instructed by Clayton Utz)

IQBAL HYE CHOWDHURY, affirmed as interpreter:

HAYNE J:   Now, the applicant is here in Court and appearing on his own behalf, is that so?

NADR (through interpreter):   Yes.

HAYNE J:   Now, he has up to 20 minutes in which to add to the papers that he has filed.

NADR (through interpreter):   Yes.

HAYNE J:   We have of course read all the papers.  Perhaps if he would go ahead.

NADR (through interpreter):   Most honourable Court, I have come to Australia because of physical torture.  I have been involved in the student politics - with student policies in Bangladesh.  I was the Vice‑President of…..University belonging to Islamic Chatra Shibir Party.  At that time during the regime of Ershad, the…..of Jatiyo Party have tortured me in different ways.  They have physically tortured me and almost caused me to die.  That is why I was compelled to leave my country and subsequently I left Bangladesh and I travelled across Thailand, Malaysia, Indonesia and finally with Australia.

The only reason for me to be in Australia to live in Australia for good as a refugee so that I do not have to return to Bangladesh.  The DIMIA without any proper investigation of my case has rejected my application.  Thereafter I filed my application to RRT for review of my case but the RRT has refused my application without any proper reason.  Subsequently I realised RRT did not make any decision according to the law.  I have understood from the decision of Muin v Refugee Review Tribunal that was passed on 8 August 2002 that in my review application, this proper procedure had not been followed according to the Migration Act of 1958.

I have cited three grounds in the application of my special leave to appeal to this Court, which I am presenting to your Honour.

NADR:   Ground (a):  The Refugee Review Tribunal did not follow the proper procedure as required by the Migration Act 1958.  Thus, the procedures that were required by the Act or regulations to be observed in connection with making of the decision were not observed (Muin, Lie Cases);  (b)  The RRT’s decision was affected by an “error of law” and procedural fairness.  There was no evidence or other material to justify in making of that decision.

NADR (through interpreter):   I am presenting these grounds before this honourable Court for consideration.  This summary of my argument in support of the first ground I have stated in details in the summary of my argument.  I am totally dependent on the decision of Muin and Lie.  Although there is a difference in fact, but the issues of procedural fairness and natural justice are…..  I was misled by that letter of Refugee Review Tribunal dated 21 December 1999.  The same letter had misled the cases of Muin and Lie.

So if honourable – all the Judges of the High Court division, High Court, if you consider the language of that letter and the misleading, so you must also admit that I had been misled by that letter. Honourable Court, the Immigration Department on the basis of the evidence in Part B, they have rejected my application which was according to section 418 of the Migration Act but they did not send all the copies of the evidence to RRT, photocopies to RRT which was understood.  It was evident subsequently in the letter of RRT the Tribunal…..fact and the language of that Tribunal’s letter was misleading.  In reality the Tribunal did not have any documents that relate to Part B, but they said that they have considered all my materials but the Tribunal could not make any decisions so they ask me to appear before the hearing.  So I can understand from the decision of the Muin and Lie Case that the Tribunal did not have any documents that relates to Part B and that has misled me.

I…..them subsequently in the decision of the RRT.  They have considered this facts and documents which were against me.  The points which were in favour of me, they did not consider those.  In reality the RRT came to a generalised conclusion.  I am drawing your attention to page 13 of the application book and column No 35, in which it has been stated ‑ ‑ ‑

NADR:   “applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.”

NADR (through interpreter):   If I fulfil all the criteria for a protection visa, then I will be able to get the protection visa, but in reality I was not

given any protection visa.  If you compare my case with the case of Muin and Lie, then same thing had happened in my case too.  It is stated in that letter of - the decision dated 21 December 1999.

NADR:   “The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone.  You are now invited to come to a hearing of the Tribunal to give oral evidence and present evidence in support of your claims.”

HAYNE J:   Yes.  Is there nothing further you would wish to add?

NADR (through interpreter):   If I…..then I will try to go back to my country, Bangladesh.  I got married over here two and a half years ago.  If I wanted to stay over here, then I could have made that application in Bangladesh on the spouse ground but because of my problem I cannot return to Bangladesh.  I think I am a genuine refugee here.

HAYNE J:   Anything else?

NADR:   No.

HAYNE J:   Thank you very much.

THE INTERPRETER:   He would like to make a further submission.

HAYNE J:   Yes.

NADR (through interpreter):   My application, my prayer to you, to this honourable Court that the case may be sent back to RRT for consideration.

HAYNE J:   Thank you very much.  We need not trouble you, Mr Bromwich.  Would you be good enough, Mr Interpreter, to interpret as I go.

The applicant’s case, including the factual matters which he sought to rely on before the Refugee Review Tribunal, were carefully considered by the Full Court of the Federal Court. No error has been demonstrated in their approach to or conclusions with respect to those matters. Accordingly, any appeal to this Court would have no prospect of succeeding. To the extent to which the applicant seeks to invoke this Court’s original jurisdiction under section 75 of the Constitution, as appears to be the case from page 48 of the application book, no arguable ground for the exercise of that jurisdiction is made out. It is therefore unnecessary to consider any of the procedural difficulties which such an application might present.

The application is dismissed with costs.

AT 12.18 PM THE MATTER WAS CONCLUDED