S247/2003 v The Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 1494
•21 OCTOBER 2005
FEDERAL COURT OF AUSTRALIA
S247/2003 v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1494
MIGRATION – application for order nisi requiring the respondents to show cause why constitutional writs should not be issued in respect of a decision of the Refugee Review Tribunal
S247/2003 v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ORS
NSD 1051/2003
GRAHAM J
21 OCTOBER 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1051 OF 2003
BETWEEN:
S247/2003
APPLICANT
AND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT
PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT
MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT
JUDGE:
GRAHAM J
DATE OF ORDER:
21 OCTOBER 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application for an order nisi be dismissed.
2. The Applicant pay the Respondents’ costs.
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 1051 OF 2003
BETWEEN:
S247/2003
APPLICANT
AND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT
PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT
MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT
JUDGE:
GRAHAM J
DATE:
21 OCTOBER 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The High Court has remitted to this Court an application for an order nisi requiring the First Respondent, The Minister for Immigration and Multicultural and Indigenous Affairs, to show cause why constitutional writs should not be issued in respect of a decision of the Refugee Review Tribunal (“RRT”) handed down on 27 May 1996.
On 26 June 1992 or thereabouts the Applicant arrived in Australia from Bangladesh travelling on a Bangladeshi passport and utilising a Visitor’s Visa. On 28 September 1992 he applied for a Protection Visa. Such application was refused by a Delegate of the Minister on 17 February 1993.
On 25 March 1993 the Applicant applied to the Refugee Status Review Committee, a body which ceased to exist on 1 July 1993, for review of the decision of the Delegate of the Minister. That application came to be dealt with by the Refugee Review Tribunal (“RRT”). Following a hearing on 16 May 1996 a decision was handed down by the RRT on 27 May 1996 affirming the Delegate’s decision to refuse to grant the Applicant a protection visa.
On 29 May 2003 the Applicant filed an application in the High Court of Australia seeking an order nisi requiring the First Respondent to show cause why constitutional writs should not be issued in respect of the decision of the RRT. In a supporting affidavit affirmed 28 May 2003 the Applicant contended that he was a “party of lie class action” by which I understand him to be referring to Lie v Refugee Review Tribunal (2002) 190 ALR 601. That matter was heard with Muin v Refugee Review Tribunal. In relation to those matters Kirby J said at [185]:-
“Two plaintiffs have commenced proceedings in the original jurisdiction of this court on their own behalf and on behalf of a large number of other persons, who they claim to represent and who are said to share common interests. Despite the representative form of the proceedings, argument before this Court has addressed only the facts concerning each named plaintiff.”
By letter dated 12 November 2004 the Applicant was advised that the Court proposed to consider whether there was an arguable case for the grant of an order nisi on the basis of the written material that he had given to the Court and without any oral hearing. He was also advised that he may make such written submissions as he wished on the question of whether the Court should make an order nisi. He was further informed that the Court would inform him of any decision that it made on the question of whether an order nisi should be granted as soon as possible after it was made.
A written submission entitled “Applicant’s Argument” was filed by the Applicant on 17 January 2005.
The Applicant claimed to have been born on 10 December 1950 and also on 10 December 1940. When living in Dhaka in Bangladesh he says that he was a member of the Awami League until 1988 when he joined the Jatiya Party of the then President Ershad. He held an executive office in a branch of the Jatiya Party with about 35 members. When his change of allegiance became known he claimed to suffer at the hands of members of his former party. In such circumstances he moved to another area within Dhaka where there were more members of the Jatiya Party.
The Applicant claimed that he was at risk of persecution as a consequence of two groups of people wanting to cause him harm. Firstly, relatives of people he had been involved in conflict with during the Bangladeshi war of independence and who had died in that war. He said these people sought revenge and wanted to kill him. Secondly, members of the Awami League who were upset with him because he had changed parties from the Awami League to the Jatiya Party.
He claimed persecution from these two groups but for different reasons.
The Applicant contended that he first feared persecution in 1990. In a 1993 submission prepared with the assistance of a solicitor no mention was made of the Applicant’s alleged role in the war of independence or of any consequences of his involvement in that war. Had he been born in 1950 which he says was his actual birth date, he would only have been 12 years of age at the time of the war.
In relation to his change of allegiance from the Awami League to the Jatiya Party the RRT noted that a letter referring to his membership in the Awami League had been signed as recently as 7 February 1992, a time when the Applicant claims to have been at risk from members of that very party. Another document produced by the Applicant and purportedly written in 1992 stated that he had been a member of the Bangladeshi National Party (BNP).
The claims of the Applicant for refugee status were rejected by the Delegate of the Minister primarily for reasons of credit. The RRT affirmed the Delegate’s decision again being unable to accept the Applicant’s evidence. In the course of the RRT’s reasons for decision the following appeared:-
“I have found the Applicant not to be a credible witness as discussed above and the inconsistencies in regard to this matter also lead me to conclude that the evidence in this regard (in relation to alleged arrests, detention and arrest warrants) is also fabricated and self-serving.”
In the draft order nisi filed by the Applicant in the High Court the following grounds were provided:-
“(a)the third respondent 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 the making of the decision were not observed.
(b)the third respondent’s decision was affected by an ‘error of law’ and ‘Jurisdictional error’ and lack of procedural fairness.
(c)there was no evidence or other material to justify in making of the decision
(d)the applicant was denied natural justice in being denied a reasonable opportunity to be heard on his application before the first respondent.
(e)there has been a constructive failure of jurisdiction by the first respondent’s decision of 17 February 1993, failed to address the correct legal question committed to him by not applying himself to all of those issues he was required to consider in determining the matter before him.
(f)there was a failure of the first respondent’s agent to exercise his jurisdiction in the decision of 17 February 1993 because he did not reach a state of satisfaction bases (sic) upon a correct understanding of the law on which he acts.
(g)The decision of the first respondent’s agent of 17 February 1993 was made in breach of rules of natural justice.”
The Applicant’s argument as filed on 17 January 2005 gives the appearance that it may have been prepared for use in other cases. It is seven pages in length and fails to address any relevant jurisdictional error, lack of procedural fairness or lack of bona fides. Numerous cases are referred to with submissions as to a number of legal principles. However, there is no relevant application of the matters to the circumstances of the Applicant’s case.
The submissions of the Applicant were broadly stated as follows:-
“1.The tribunal failed to assess whether my fears of being persecuted were well founded and thereby failed to accord him procedural fairness.
2.The tribunal’s finding that I had no well founded fear of persecution in Bangladesh for a convention related reason.
3.The Tribunal did not provide I with particulars of information about violence on politics in Bangladesh.
4.The tribunal did not put to me in its doubts about the documents.
5.The applicant is in the same position as in Muin.
6.The tribunal’s finding that the applicant does not have well founded fear
7.There was procedural inefficiency; in that I did not refer to sufficient documents supplied by the applicant and ignored the relevant evidence.
8.The Tribunal’s actual findings indicate actual bias.
9.The Tribunal did not believe me.
10.The Tribunal failed to investigate my claims.”
It is difficult to see how these matters relate to the RRT’s decision in the Applicant’s case beyond the matter raised in numbered paragraph 9 namely “The Tribunal did not believe me”. This would seem to be a fair summation of the reason why no finding favourable to the Applicant was ultimately made.
The Applicant has not made out an arguable case suggesting reviewable error on the part of the RRT and no argument warranting the granting of an order nisi has been advanced in the Applicant’s submissions.
This is an appropriate application to be dealt with on the papers.
The application for an order nisi must be dismissed with costs.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.
Associate:
Dated: 21 October 2005
0
1
0