S222 of 2003 v Refugee Review Tribunal

[2005] FCA 1600

FEDERAL COURT OF AUSTRALIA

S222 of 2003 v Refugee Review Tribunal [2005] FCA 1600

APPLICANT S222 OF 2003 v REFUGEE REVIEW TRIBUNAL & ORS

NSD1021 OF 2003

EMMETT J
9 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1021 OF 2003

BETWEEN:

APPLICANT S222 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

9 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        Order 51A rule 5(1) not apply.

2.        The application for orders nisi be refused.

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 1021 OF 2003

BETWEEN:

APPLICANT S222 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:	EMMETT J
DATE:	9 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh.  On 14 July 1999, he applied to one of the respondents, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). The application was refused on 12 October 1999 and on 9 November 1999, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the decision. By its decision of 23 May 2000 (‘the Decision’), the Tribunal affirmed the Minister’s decision not to grant a protection visa to the applicant.

2. On 26 May 2003, the applicant commenced a proceeding in the High Court of Australia by filing a draft Order nisi and an affidavit affirmed 26 May 2003.  In his affidavit, the applicant recounted that he was a person named in the schedule to the statement of claim in proceeding brought in the High Court of Australia no. S89 of 1999, Lie v Refugee Review Tribunal [2002] HCA 30. The matter was remitted to this Court pursuant to an order of the High Court following that decision. In the circumstances, it is appropriate that the application for an Order nisi be dealt with without any oral hearing or argument (see Applicant s195 of 2003 v Refugee Review Tribunal [2005] FCA 1571).

3. The grounds upon which relief was claimed in the draft Order nisi were as follows:

   ‘(a)error of jurisdiction in making the decision of 23 May 2000 by the Tribunal;

   (b)denial of natural justice due to the failure to accord the applicant procedural fairness by the Tribunal in determining the application for review of the delegate’s decision.’

   No particulars of the grounds were provided in either the affidavit or in the draft order nisi.

4. The affidavit asserts grounds of complaint in respect of the decision of the Tribunal as follows:

   ‘aThe Tribunal erred in law amounting to jurisdictional error in finding that it is not satisfied that the applicant faces a real chance of Convention related persecution in Bangladesh and he is not a refugee and that he is not a person to whom Australia has protection obligations under the Convention and therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa;

   b.The finding that it is not satisfied that the applicant faces a real chance of Convention related persecution in Bangladesh and he is not a refugee and that he is not a person to whom Australia has protection obligations under the Convention and therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa and the consequential satisfaction were not formed by a correct application of the applicable law hence the necessary opinion does not exist;

   c.The Tribunal had no jurisdiction to make the said decision because its ‘reasonable satisfaction’ was not arrived in accordance with the requirements of the Migration Act;

   d.The Tribunal exceeded its jurisdiction in making its decision to affirm the Respondent’s decision;

   e.The Tribunal Constructively failed to exercise its jurisdiction in arriving at its decision;

   f.The Tribunal Member consciously choosing to ignore the material in support of my claims as no significant and/or less significant, therefore the Tribunal’s said decision was not based on all the materials before it and failed in its duty;

   g.The Tribunal Member failed to appreciate that the ‘political opinion’ is an essential element in considering the fear of serious harm amounting to persecution of me to return to my country of origin i.e. Bangladesh during the present time due to the unchanged situation not safe for me to return to Bangladesh;

   h.The Tribunal member having formed certain ventilating views against me and rejected my claims due to the delegate’s decision based on certain incorrect information and wrongful reasoning;

   i.The Tribunal Member because of the ventilating views induced by bias ought not to be carry with a practical certainty of considering all the materials readily available and / or accessible and the Member continued an erroneous approach to my claims and failed to address his mind to the material questions arising out of those materials in support of my claims for protection in Australia;

   j.The Tribunal Member did not make aware of, and given opportunity to me to respond to adverse materials in possession of the Tribunal so that I was handicapped to present my case in such a way as to meet those issues arising out of those adverse materials;

   k.If I would have been given an opportunity to submit my explanations and materials in reply to the alleged adverse materials it could have led to a different decision by the Tribunal, therefore there is a jurisdictional error;

   l.The Tribunal failed to perform the duty imposed on it by the Migration Act (section 425 (1)) to decide my case on the materials put to it and by conducting an appropriate enquiry there on;

   m.The said decision of the Tribunal was made by the Tribunal was not a bona fide attempt to act in the Tribunal’s authority;

   n.The Tribunal by denying the opportunity to me to submit my explanations and materials in reply to the alleged adverse materials the Tribunal had not fully listened to my claims and explanations I wish to put, thereby the Tribunal declined to exercise its jurisdiction and failed in its duty;

   o.I am entitled to a Protection Visa, which I have applied; and

   p.I have a well founded fear of persecution in the country of nationality i.e. Bangladesh.

   q.I state the decision of the First Respondent to affirm the decision of the delegate refusing me the grant of the protection visa is invalid.

5. The affidavit asserts that the Tribunal, before making its decision, failed to make the applicant aware of, and give the applicant an opportunity to respond to, adverse material in the possession of the Tribunal categorised by the Minister’s delegate as ‘the Part B Documents’ in the delegate’s decision of 9 October 1999, which is annexed to the affidavit.

6. The delegate’s decision record is annexed to the affidavit.  Part B of the decision record contains a statement of the evidence before the delegate, which consisted of the Departmental file and eight other documents, none of which appears to be concerned specifically with the applicant but with the situation in Bangladesh generally and texts on refugee status.  No other particulars are provided of the grounds of complaint.  In particular, no information is given as to any material adverse to the applicant contained in the Part B documents or the response that the applicant might have made to that material. 

7. The decision of the Tribunal is also annexed to the affidavit. The Tribunal member reached its decision to affirm the delegate’s decision on the grounds of credibility, without the need to refer to the adverse country information to which the applicant refers.

8. On an application such as this, for orders requiring the respondents to show cause why final relief should not be granted, the purpose of any affidavit in support is to provide material showing that there is at least an arguable case for the grant of the final relief claimed.  However, the material must be more than mere pleading or assertion of the right to such relief.  The material must contain some evidence of facts that would support the grant of the relief claimed.  In the context of the relief claimed by the present applicant, there should be material that would show that it is at least arguable that the Tribunal fell into jurisdictional error in making the Decision, such that orders would be made to quash the Decision and to restrain the Minister from acting on the Decision.  The material presently before the Court does not disclose an arguable case, in that sense. 

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:             9 November 2005

Date of Judgment: 9 November 2005