S222 of 2003 v Minister for Immigration and Multicultural Affairs

[2006] FCA 211

FEDERAL COURT OF AUSTRALIA

S222 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 211

S222 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR
NSD 2308 of 2005

GRAHAM J

15 FEBRUARY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2308 OF 2005

BETWEEN:

S222 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

GRAHAM J

DATE OF ORDER:

15 FEBRUARY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The time for filing the application for leave to appeal from the judgment of Justice Emmett of 9 November 2005, be extended up to and including 24 November 2005.

2.        The application for leave to appeal be dismissed.

3.        The applicant pay the first respondent’s costs fixed in the agreed amount of $900.

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 2308 OF 2005

BETWEEN:

S222 of 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	GRAHAM J
DATE:	15 FEBRUARY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The Applicant, who is identified for the purposes of these proceedings as Applicant S222 of 2003, is a Bangladesh citizen.  He arrived in Australia on the first occasion on 14 July 1993, undertook some studies in Australia and returned to Bangladesh on 19 May 1997.  On 21 May 1997 he returned to Australia.  On 14 July 1999 he applied for a Protection Visa.  That application was refused by a Delegate of the Minister on 9 October 1999.  On 9 November 1999 the Applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the Minister's Delegate's decision.  On 23 May 2000 the Tribunal affirmed the decision of the Minister's Delegate not to grant a Protection Visa to the Applicant.

2. On 26 May 2003 the Applicant lodged an application in the High Court of Australia for an order nisi for constitutional writ relief in respect of the Tribunal's decision.  That application was supported by an affidavit of the Applicant affirmed 26 May 2003.  The High Court remitted the application for an order nisi to this Court for its consideration.  The matter was considered by Emmett J, who delivered a judgment on 9 November 2005, in which his Honour found that the application for orders nisi should be refused. 

3. It would appear that on 12 November 2004 the Court Registry wrote to the Applicant at the address given by him on the draft order nisi informing him that the Court proposed to consider whether there was an arguable case on the basis of the written material that the Applicant had given to the Court and without any oral hearing.

4. It was indicated that the lawyer for the Minister would not be giving any information to the Court and it was indicated that before the Court made its decision the Applicant could, if he wished to do so, make written submissions to the Court on the question of whether it should make an order nisi.  The Court indicated that submissions must be lodged with the Registry of the Court no later than 10 December 2004. 

5. Whilst the letter was addressed to the Applicant at the address indicated by him on the draft order nisi, he says he did not receive it.  He draws attention to the fact that when he filed his draft order nisi in the High Court he chose to incorporate one address on the order nisi and a different address on his affidavit in support.

6. As it transpires, on 6 December 2004 the Applicant filed a notice of change of address in this Court, indicating that he had changed to yet another address which was in the same street as the one referred to in his affidavit in the High Court, but different from that address and different from the address indicated on the draft order nisi.  The Applicant says that he did not receive the letter of 12 November 2004 inviting further submissions as to why an order nisi should be granted. 

7. What is presently before the Court is an application for leave to appeal from the judgment of Emmett J which was filed on 24 November 2005.  Mr Markus, solicitor, from the Australian Government Solicitor, who appears for the Minister, has indicated that if otherwise the Court was minded to grant leave to appeal, the Minister would not oppose an extension of time being granted to the Applicant within which to bring the application for leave to appeal.

8. The question then becomes whether or not the decision of Emmett J on the application for an order nisi was attended with sufficient doubt to warrant its reconsideration and whether substantial injustice would result if leave to appeal were refused.  I have indicated to the Applicant that for the purposes of this application he may not only direct my attention to aspects in which he says Emmett J’s decision was attended with sufficient doubt as to warrant a grant of leave to appeal, but also to indicate any submissions that he would wish to advance as to why the Tribunal committed a jurisdictional error in reaching the decision which it did reach, adverse to him, which may not have been covered by the material filed in the High Court to which Emmett J had regard.

9. Under s 65 of the Migration Act 1958 (Cth) (‘the Act’) the Minister must grant a Protection Visa if satisfied of certain matters and must refuse to grant a Protection Visa if not so satisfied. The relevant criteria, or criterion, for present purposes is whether or not the Applicant was a non-citizen in Australia for whom the Minister was satisfied that Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. The decision of the Tribunal was one in which reference was made to certain country information concerning Bangladesh. However, the decision of the Tribunal turned, so it would seem to me, upon an unwillingness on the part of the Tribunal to accept the truth of what the Applicant put to the Tribunal.

10. The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason which caused him to leave Bangladesh and locate himself in Australia.  The Tribunal used strong language.  Amongst other things it said that it was:

    ‘... utterly unconvinced by the Applicant's account of his political awakening, growth and deepening commitment, in particular by his claimed change from the Left to the Right, simply over the claimed insult to socialist objectives caused by a few individual comrades.’

11. The Tribunal concluded its reasons by saying that it found the Applicant to be an ‘... unreliable witness in the present matter.’  It was not satisfied that he faced a real chance of Convention related persecution in Bangladesh and accordingly found that he was not a refugee.

12. In support of his application for leave to appeal the Applicant has relied, amongst other things, upon an affidavit sworn by him on 24 November 2005 in which he alleged that Emmett J decided his application for an order nisi adversely to him because he did not file any written argument in response to the Court's letter to him of 12 November 2004. That submission is quite without foundation. There is nothing in the reasons for judgment of Emmett J to support such a conclusion. A draft notice of appeal specifying numerous grounds of appeal, dealing with matters such as the constitutional validity of s 424A of the Act, has been filed with the application for leave to appeal.

13. It is claimed that no mention was made of any such invalidity in the material filed by the Applicant in the High Court and no mention has been made of any such matter in the submissions of the Applicant before the Court today. 

14. In support of the application for an order nisi in the High Court the Applicant's affidavit filed 26 May 2003 set out some 17 ‘... grounds of complaint in respect of the decision of the Refugee Review Tribunal …’.  When I invited the Applicant to explain these grounds to me and the respects in which it is said that the Tribunal committed jurisdictional error, it became self-evident that the grounds of complaint were grounds which were beyond the Applicant's comprehension.

15. When asked what he wanted to say about the grounds seriatim his case boils down to this:  he takes exception to the fact that the Tribunal did not believe him; he takes exception to the fact that the Tribunal's conclusions were not verified by other sources; and he takes exception to the fact that documents submitted by the Applicant from the Applicant's comrades were not believed.  The Applicant submitted that if he went back to Bangladesh he would be persecuted, and he took exception to the fact that the Tribunal was not satisfied on that aspect of the matter.  He further submitted that the Tribunal failed to consider what was really happening in Bangladesh. 

16. It can be seen that what the Applicant really seeks is a merits review of his case by the Tribunal.  Plainly, he is not entitled to constitutional writ relief in respect of the decision of the Tribunal on that account.  The simple fact is that the Tribunal was not satisfied that he was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol.  In my opinion, Emmett J correctly considered the application and order nisi on the material that was before him.  The failure of the Applicant to receive the Court's letter of 12 November 2004 at the address provided by him on his draft order nisi, if that be the case, does not bear upon the matter and nothing additional to what was placed before Emmett J in the High Court material has indicated in any way that if Emmett J had the benefit of that additional material he might have reached a different conclusion on the application which was before him.

17. As his Honour rightly pointed out, it was inappropriate for an order nisi to be granted unless there was at least an arguable case that the Tribunal fell into jurisdictional error.  In the circumstances, the application for leave to appeal should be dismissed. 

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham .

Associate:

Dated:             17 March 2006

Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the Respondent:	A Marcus of Australian Government Solicitor
Date of Hearing:	15 February 2006
Date of Judgment:	15 February 2006