S295 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1602

FEDERAL COURT OF AUSTRALIA

S295 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1602

APPLICANT S295 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR
NSD 2449 OF 2003

EMMETT J
SYDNEY
9 NOVEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2449 OF 2003

BETWEEN:

APPLICANT S295 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND 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 to the proceeding.

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 2449 OF 2003

BETWEEN:

APPLICANT S295 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE:

9 NOVEMBER 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1           The applicant is a citizen of Bangladesh.  On 26 June 1997, the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). On 24 July 1997, a delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) refused the application. On 8 August 1997, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 28 March 2000, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

1. On 13 June 2003, the applicant commenced a proceeding in the High Court of Australia by filing a draft order nisi and affidavit sworn the day before.  Accordingly, the application seeks an order by the High Court that would require the respondents to show cause why writs of prohibition, certiorari, mandamus or an injunction should not issue to them in respect of the Tribunal’s decision.

   3In his affidavit, the applicant asserted:

   ‘I was in the class action and seeking waiver for time limit for filing this writ as time limit period has already been expired.’

   No particulars of ‘the class action’ are furnished although it is likely that it was intended to be a reference to the proceeding in the High Court that was the subject of judgment in Muin v Refugee Review Tribunal [2002] HCA 30.

2. The grounds upon which relief was claimed in the draft order nisi are as follows:

   ‘(a)a breach of the rules of natural justice occurred in connection with the making of the Decision;

   (b)the Decision involved an error of law, whether or not the error appears on the record of the Decision;

   (c)procedures that were required by law to be observed in connection with the making of the Decision were not observed;

   (d)the making of the Decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

   (e)that there was no evidence or other material to justify the making of the Decision;

   (f)the Decision was otherwise contrary to law.’

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

3. In his application for a protection visa, the applicant claimed that he feared persecution in Bangladesh for political reasons.  He claimed to have joined the Freedom Party in college and to have become vice-president of the student branch.  He claimed that his father was a party leader.  The applicant claimed that, when the Bangladesh National party (‘BNP’) came to power, he was arrested and released only with the aid of his party and father.  He claimed that after this incident, his political involvement in the Freedom Party increased and in 1993, he joined the main committee of the party in Dhaka as an area vice-president.  The applicant claimed that in perusing his political activities, he was harassed many times by the BNP and Awami League and attacked with bombs, guns and other weapons at a meeting in Dhaka.

4. The applicant claimed that he reported the attack to the police but that there was no response as the police supported the BNP.  After further activities, the applicant claimed that the BNP issued false charges against him and issued an order to kill him.  Using falsified documents, the applicant claimed that he left Bangladesh in July 1995 and went to Cyprus but returned to Bangladesh when his visa expired and went to India after a month where he obtained a visa to travel to Australia.

5. In support of his claims, the applicant provided to the Tribunal a letter said to be from the Freedom Party, an arrest warrant and various police and court documents and a letter from a lawyer stating that the applicant would be in danger if he returned to Bangladesh.

6. These claims were restated in the applicant’s application to the Tribunal for review of the delegate’s decision.  However, the various attempts to advise the applicant of the hearing date before the Tribunal for the applicant to give oral evidence and present arguments in support of his claims went unanswered.  On 7 July 1999, the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa.  The applicant sought review of the Tribunal’s decision by the Federal Court and on 27 October 1999, the Federal Court ordered by consent that the Tribunal’s decision of 7 July 1999 be set aside and the matter be remitted to the Tribunal for reconsideration in accordance with law. 

7. At the Tribunal hearing of 10 February 2000, the applicant gave oral evidence with the aid of an interpreter.

8. The Tribunal considered aspects of the applicant’s evidence to be ‘vague’, ‘inconsistent’ and ‘implausible’ and considered that the applicant had not been truthful in providing evidence.  The Tribunal also did not accept that the applicant was, as he claimed to be, the person named in the birth certificate and education certificates which he had provided to the Tribunal.  The Tribunal preferred to rely on the veracity of the passport, which named the applicant as another person, and which he had used to travel extensively through various countries including Australia.  Further, in light of independent country information regarding widespread document fraud in Bangladesh and findings regarding the applicant’s credit, the Tribunal did not accept the veracity and genuineness of documents which the applicant submitted to the Tribunal in support of his claims.

9. The Tribunal found that the applicant’s extensive travel during the period 1995-1997 was not consistent with a fear of political persecution by the government and considered the applicant’s explanation to be implausible and not cogent.  The Tribunal did not accept the applicant’s claim that he was a member of the Freedom Party, citing the ‘unsatisfactory nature of his evidence about the policies of the [Freedom Party] and his abysmal knowledge of politics generally’ or any of his claims of involvement in political activity.  Further, the Tribunal found, based on information that the Freedom Party had effectively ceased to exist as a party, that the chance that the applicant would face persecution on return to Bangladesh if he then chose to become involved with that party to be remote and insubstantial. 

10. The proceeding commenced in the High Court was remitted to the Federal Court of Australia by the High Court.  For the reasons set out in Applicant S195 v Refugee Review Tribunal [2005] FCA 1571, it is appropriate for this matter to be dealt with on the papers.

11. Accordingly, on 12 November 2004, the New South Wales District Registrar wrote to the applicant at the address shown in the papers inviting the applicant to make such written submissions as he wished on the question of whether the Court should make an order nisi.  The letter, relevantly, stated as follows:

    ‘As a result of an order by the High Court, your application was transferred to the Federal Court of Australia.  The Federal Court must consider whether there is an arguable case for the Court to make an Order nisi.  If the Court decides that there is no arguable case, your application for an Order nisi will be refused.

    The Court proposes to consider whether there is an arguable case on the basis of the written material that you have given to the Court and without any oral hearing.  The lawyer for the Minister will not be giving any information to the Court.  Before the Court makes a decision you may make such written submissions in the English language as you wish o the question of whether the Court should make an Order nisi.  Any submissions must be lodged with the Registry of the Court no later than 10 December 2004.’

12. There has been no response to that letter.

13. The material before the Court discloses no arguable case for the grant of Constitutional writ relief in respect of the decision of the Tribunal.  The material does not disclose an arguable case for the proposition that the Tribunal fell into jurisdictional error in making its decision.

14. Order 51A rule 5(1) of the Federal Court Rules provides that, where an application for an order nisi is remitted by the High Court to the Federal Court, the Court will, at the same time, hear the parties on whether, if the order nisi were made, it should be made absolute.  However, under rule 5(2) the Court may, in a particular case, order that rule 5(1) does not apply.  It is appropriate to make an order under rule 5(2) in this case. 

15. Accordingly, the refusal of orders presently sought would not constitute a final determination of any question between the applicant and respondents named in the draft order nisi and thus would not give rise to any issue estoppel or res judicata as between the applicant and the respondents.  The applicant may commence a fresh proceeding in the Federal Magistrates Court should the applicant wish to pursue any claim for relief in respect of the Tribunal’s decision.

16. An order nisi should be refused. 

I certify that the preceding eighteen (18) 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