S1087 of 2003 v Refugee Review Tribunal

[2004] FCA 672

FEDERAL COURT OF AUSTRALIA

S1087 of 2003 v Refugee Review Tribunal [2004] FCA 672

S1087 OF 2003 v REFUGEE REVIEW TRIBUNAL & ANOR
N 1081 OF 2003

EMMETT J
3 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1081 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

S1087 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND 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 second respondent’s costs of the proceeding.

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 1081 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

S1087 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

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

REASONS FOR JUDGMENT

1. The applicant is a man from Bangladesh.  He arrived in Australia on 18 November 1998 and applied for a protection visa on 3 December 1998.  His application was refused by a delegate of the Minister for Immigration and Ethnic Affairs (‘the Minister’) on 22 December 1998.  He applied for a review of the decision of the delegate by the Refugee Review Tribunal (‘the Tribunal’) on 13 January 1999.  On 21 June 2000, the Tribunal affirmed the decision not to grant a protection visa. 

2. At some stage thereafter, the applicant became a party to a representative proceeding in the High Court, S 89 of 1999.  On 29 May 2003, a draft order nisi was filed on behalf of the applicant by solicitors then acting for him (‘the Solicitors’).  The draft order nisi was supported by an affidavit of his solicitor.  Pursuant to orders made by Gaudron J on 25 November 2002, the proceeding was remitted to this Court.  On 27 October 2003 I made orders that the applicant file and serve, no later than 20 January 2004, a statement of contentions of relevant facts and law setting out particulars of the grounds relied upon and any affidavits which the applicant intended to rely on at the hearing.

3. My orders of 27 October 2003 were not complied with.  On 3 November 2003 the Solicitors wrote to the applicant indicating their intention to withdraw, and drawing attention to the fact that the Court required things to be done by a certain date.  However, on 19 January 2004 the applicant himself sent to the solicitor for the Minister a document purporting to state grounds of review.  The purported grounds of review were apparently sent in response to a letter of 9 December 2003 sent by the Minister’s solicitors direct to the applicant.

4. When the matter was called on for directions today, the Minister sought summary dismissal of the proceeding for want of compliance with my orders, on the basis that the purported grounds indicated that the proceeding was doomed to failure. On its face, the decision of the Tribunal was a privative clause decision within the meaning of s 474 of the Migration Act 1958 (Cth) and therefore the Court has no power to interfere with it. Unless the applicant was able to demonstrate the decision was attended by some error, such as jurisdictional error, the proceeding was doomed to failure.

5. The Tribunal’s reasons indicate that the applicant was told in writing by the Tribunal that it was unable to make a favourable decision on his case on the basis of the information already provided.  The applicant was invited to a hearing on 20 June 2000.  On that day his migration agent advised the Tribunal that the applicant did not wish to attend.  The Tribunal’s reasons record that the applicant had provided only limited information regarding the problems he claimed to have faced prior to leaving Bangladesh.  It was unclear to the Tribunal what the precise nature of his alleged political involvement was and why he was targeted by members of the Awami League, as he alleged.

6. The Tribunal observed that, if the applicant had attended the hearing, it would have been possible to explore the matters that were of concern to the Tribunal.  On the basis of the evidence before it, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution because of a political opinion or for any other convention reason. 

7. The document addressed to the Minister’s solicitors set out a number of legal principles about which one could probably not quarrel.  The only paragraphs that could constitute grounds of review that might attract the jurisdiction of the Court are as follows:

   The Refugee Review Tribunal invited me to give oral evidence and I attended hearing [sic] to give oral evidence in support of my protection claims.  In the interview I provided various relevant documents but the tribunal did not believe us.  Besides, the RRT failed to investigate our claims through DFAT or any other independent sources in Bangladesh.  In my opinion, the Refugee Review Tribunal’s decision was influenced by sufficient doubts.  I provided a suitable vehicle and most of the grounds relied upon the facts and evidences, which the Tribunal did not consider.  The RRT heavily depended in their handing [sic] of the issues based on the generalized facts and findings of the Department of Immigration and Multicultural and Indigenous Affairs and generalised DFAT reports.

   The RRT failed to internalize the circumstantial grounds of my review application while considering the claims of the review application and did not consider the supporting facts and documents.  Therefore, I seek a direction from the High Court to redirect my case to the RRT for further consideration of the decisions of the Tribunal under S477 of the Judiciary Act 1903(Cth) and Migration Act 1958 (Cth). (Original emphasis)

8. Those assertions are inconsistent with the Tribunal’s reasons and do not disclose any grounds upon which one could conclude that the decision of the Tribunal was attended by some error.  Further, no affidavit evidence has been filed on behalf of the applicant in order to comply with my order.  In the circumstances, I consider that the Minister’s application for dismissal for want of compliance with a direction should be acceded to.  Accordingly, I propose to order that the application be dismissed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            31 May 2004

Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 February 2004
Date of Judgment:	3 February 2004