S249 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1788

FEDERAL COURT OF AUSTRALIA

S249 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1788

S249 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1053 OF 2003

EMMETT J
7 JULY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1053 OF 2003

BETWEEN:

S249 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 r 5(1) of the Federal Court Rules does not apply to the proceeding.

2.        The application for an order nisi be refused.

3.        The applicant pay the Minister’s costs 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	N1053 OF 2003

BETWEEN:

S249 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 citizen of Bangladesh.  He arrived in Australia on 1 October 1997 and, on 29 October 1997, he lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). On 19 November 1997 a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs (‘the Minister’), as that officer was then called, refused to grant a protection visa and, on 8 December 1997, the applicant applied for review of that decision by the Refugee Review Tribunal (‘the Tribunal’) which is the second respondent.

2. On 9 February 2000 the Tribunal affirmed the decision not to grant a protection visa.  It appears that the applicant then became a party to the class action in the High Court of Australia generally referred to as Muin v Refugee Review Tribunal (S36 of 1999); Lie v Refugee Review Tribunal (S89 of 1999) (2002) 190 ALR 601 (‘Muin and Lie’).  On 29 May 2003, pursuant to orders made by Gaudron J, the applicant filed a draft order nisi and affidavit in the High Court.  Pursuant to Gaudron J’s directions, that proceeding was remitted to this Court.

3. The matter is now before me for directions. I take the view that the application before me is for an order nisi. I have considered the reasons of the Tribunal and the grounds set out in the draft order nisi filed in the High Court. There are seven grounds specified in the draft order nisi. The last four relate to the decision of the Minister’s delegate and, accordingly, accord no basis for any relief in the nature of constitutional writs. The first three grounds contain no particulars and simply assert that the Member of the Tribunal did not follow the proper procedure as required by the Migration Act, that the Member’s decision was affected by an unspecified error of law, a jurisdictional error and lack of procedural fairness, and that there is no evidence or other material to justify the making of the decision.

4. The reasons of the Tribunal indicate that the Tribunal found the applicant was not a truthful or credible witness.  It set out in some detail the lack of particularity in the claims made by the applicant which led to the Tribunal’s conclusion that he was not a credible witness.  I do not consider that there is the faintest suggestion of an arguable case disclosed in the material filed in the High Court.  Accordingly, I propose to refuse an order nisi.  That will not preclude the applicant from obtaining relief, if he is able to establish a basis upon which this Court or some other court could interfere with the decision of the Tribunal.  It may, of course, be necessary for him to explain he delay, but that is a matter upon which he will have to take advice. 

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            9 February 2005

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