S237 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1291

FEDERAL COURT OF AUSTRALIA

S237 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1291

S237 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS

N1022 OF 2003

EMMETT J
7 JULY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1022 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

S237 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

7 JULY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        Order 51A rule 5(1) of the Federal Court Rules does not apply to this proceeding.

2.        The application for an order nisi be refused.

3.        The applicant pay the Minister’s costs fixed in the sum of $200.

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	N1022 OF 2003

BETWEEN:

S237 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	EMMETT J
DATE:	7 JULY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a Bangladeshi national who arrived in Australia on 21 October 1993.  He entered Australia on a visitor’s visa and was granted a temporary entry permit valid to 21 November 1993.  On 17 January 1994 the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). A decision was made to reject the application for refugee status on 1 June 1994. The applicant then applied for review of that decision by the Refugee Review Tribunal (‘the Tribunal’) on 17 June 1994.

2. On 24 June 1996 the Tribunal affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), to refuse a protection visa.  The applicant then apparently became a party to the proceedings in the High Court of Australia generally referred to as Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601 (‘Muin and Lie’).  On 29 May 2003 the applicant filed in the High Court of Australia a draft order nisi and an affidavit in support of the order seeking constitutional writ relief in respect of the decision of the Tribunal, as well as the delegate’s decision.  Pursuant to orders made by Gaudron J, the proceeding was remitted to this Court.

3. The draft order nisi raises seven grounds.  The last four are concerned with the decision of the Minister’s delegate and are, therefore, misconceived.  The first three are that:

   • the Member of the Tribunal did not follow the proper procedure required by the Migration Act;
   • the Member’s decision was affected by an error of law and jurisdictional error; and

   ·there was no evidence or other material to justify the making of the decision.

   No particulars are furnished in the order nisi and there is no material in the affidavit that would constitute an arguable case for review.

4. The Tribunal’s reasons indicate that, while it accepted that the applicant and his family were the subject of harassment in Bangladesh, the reason for the harassment fell outside the ambit of the Convention Relating to the Status of Refugees of 28 July 1951 (‘the Convention’).  It found that the reason for the harassment was an attempt to get the Order 51A applicant’s family off their land, or to relinquish ownership of it, and that does not, in any way, amount to persecution for one of the Convention reasons.  Indeed, the Tribunal found that the applicant’s family has sought protection through the Bangladeshi Courts, which have consistently upheld their right to own the land for the past 20 years or more.

5. The material before me does not disclose any basis on which one could conclude there is at least an arguable case for the grant of constitutional writ relief. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett .

Associate:

Dated:            6 October 2004

The applicant appeared in person.
Counsel for the Respondent:	Mr A. Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 July 2004
Date of Judgment:	7 July 2004