S372 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1785

FEDERAL COURT OF AUSTRALIA

S372 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1785

S372 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N2662 OF 2003

EMMETT J
23 AUGUST 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N2662 OF 2003

BETWEEN:

S372 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

GILES SHORT, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

23 AUGUST 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        Order 51A r 5(1) of the Federal Court Rules not apply to the proceeding;

2.        The application for an order nisi be refused.

3.        The applicant pay the costs of the first respondent.

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	N2662 OF 2003

BETWEEN:

S372 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

GILES SHORT, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	EMMETT J
DATE:	23 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant in this matter arrived in Australia as a visitor in June 1998.  He arrived, it seems, on an Indian passport in a false name.  He now claims to have been brought up in Bangladesh.  At any rate, he applied for a protection visa under the Migration Act 1958 (Cth) (‘the Act’) in the name appearing in the passport. That application was lodged on 21 July 1998. On 14 August 1998 a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused the grant of a protection visa. On 7 September 1998 the applicant lodged with the Refugee Review Tribunal (‘the Tribunal’), an application for review of the delegate’s decision. On 5 April 2001 the Tribunal, through the third respondent, affirmed the decision not to grant a protection visa. The decision of the Tribunal was handed down on 1 May 2001.

2. It appears that the applicant was granted a bridging visa pending the determination of his application for protection visa.  The bridging visa expired on 29 May 2001, and the applicant was apparently detained on 13 June 2003.  On 25 June 2003 he commenced a proceeding in the High Court of Australia by filing an affidavit sworn by him on 25 June 2003 and a draft order nisi.  On 25 August 2003 that application was remitted to this Court.  For reasons that I do not understand at the moment, it has only recently been ascertained that the applicant is still in detention.  For that reason the matter has been brought before me for directions.

3. The affidavit does no more than annex the reasons for the delegate’s decision and the reasons for the Tribunal’s decision. In acknowledgment of the time limits contained in the High Court Rules concerning applications for constitutional writ relief, the affidavit asserts that the time limits contained in the High Court Rules are invalid as being inconsistent with s 75(v) of the Constitution. By the draft order nisi, the applicant claims certiorari and mandamus in respect of both of the decision of the delegate of 14 August 1998 and the decision of the Tribunal of 5 April 2001.

4. Seven grounds are specified, although no particulars are furnished in respect of any of the grounds.  The grounds might be summarised as follows:

   (a)the member of the Tribunal did not follow the proper procedure as required by the Act;

   (b)the Tribunal’s decision was affected by error of law, jurisdictional error and lack of procedural fairness;

   (c)there was no evidence or other material to justify the making of the decision;

   (d)the applicant was denied natural justice;

   (e)there was a constructive failure of jurisdiction by the delegate in failing to address the correct legal question;

   (f)the delegate did not reach a state of satisfaction based upon a correct understanding of the law;

   (g)the decision of the delegate was made in breach of the rules of natural justice.

5. As will be apparent shortly, the claims made before the Tribunal were completely false.  At the hearing the applicant produced a statutory declaration saying that he was a prominent political activist and that he belonged to the Trinamul Congress Party in India.  He said that he had been actively involved with the party and all its activities in Habra.  He made other claims to be Publishing Secretary in 1995 and that he had gained strength in his local area in opposing the Communist Party of India (Marxist).

6. The Tribunal did not find the applicant an impressive witness.  He produced documents which the Tribunal said it did not accept as verifying his claims.  When the matter was called on this morning I asked the applicant if he was in a position to indicate the basis upon which he said the Court could grant relief of the nature claimed in the draft order nisi.  His only response was to produce a form of declaration dated 29 July, I assume of this year, since it was made in the Villawood Detention Centre. 

7. In that declaration the applicant purported to state his real name.  He asserts that he was brought up by a family in Bangladesh and that he never knew his parents.  He said that he escaped from that family and was taken to the Benapole border where he was introduced to a friend who owned a tea shop in about 1985.  In the tea shop he met another man who took an interest in the applicant.  That man suggested that the applicant allow him to help him get to Australia.  He instructed the applicant to cross into India on a bus, which he did.  He was then given a passport.  He was surprised to see that it was not in his own name, but he was told not to worry.

8. The man who gave him the passport sent another man to accompany him to Australia.  They travelled by Qantas to Melbourne where the applicant was given money for a bus fare to Sydney.  The applicant stated that he came to Sydney alone by bus and was met by another man.  He worked in various restaurants during the time when his application for a protection visa was being considered.  As I have said, his bridging visa ceased on 29 May 2001 and he was detained on 13 June 2003. 

9. It is, of course, not a matter for this Court to decide whether the assertions made in that declaration have any substance or not.  However, it does indicate that there can be no complaint at all about the procedures before the delegate and the Tribunal.  The declaration indicates that there is no substance at all in the complaints made in the draft order nisi.  In the circumstances, there appears to me to be no utility at all in fixing this matter for hearing.  Rather, it is appropriate to refuse an order nisi. 

10. If the applicant truly has a claim to fear persecution for a Convention reason in Bangladesh, or anywhere else, it is a matter for him to formulate it. Whether or not he will be entitled to do so in the light of the provisions of the Act is a matter that he will have to deal with at the appropriate time. I express no view about that one way or the other.

I certify that the preceding ten (10) 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
Solicitor for the Respondent:	Ms S Goodman, Blake Dawson Waldron
Date of Hearing:	23 August 2004
Date of Judgment:	23 August 2004