S381 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 1292
•23 AUGUST 2004
FEDERAL COURT OF AUSTRALIA
S381 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1292
S381 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS
N2663 OF 2003
EMMETT J
23 AUGUST 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 2663 OF 2003
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
BETWEEN:
S381 OF 2003
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENTMIGRATION REVIEW TRIBUNAL
SECOND RESPONDENTJUDGE:
EMMETT J
DATE OF ORDER:
23 AUGUST 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Order 51A rule 5(2) of he Federal Court Rules does not apply in respect of this 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
N 2663 OF 2003
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
BETWEEN:
S381 OF 2003
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENTMIGRATION REVIEW TRIBUNAL
SECOND RESPONDENT
JUDGE:
EMMETT J
DATE:
23 AUGUST 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant arrived in Sydney on 12 April 1990. He arrived under a Bangladesh passport issued to his brother and a visitor’s visa issued to his brother. On 30 August 1990 he lodged an application for refugee status with the Department of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’). On 6 March 1992 a letter was written on behalf of the Determination of Refugee Status Branch to the applicant, with a copy to his solicitors. That letter says:
‘Your application has been examined by a case officer of the Department of Immigration, Local Government and Ethnic Affairs, who has recommended against your being determined as having the status of a refugee.
The attached papers set out the case officer’s initial assessment of your application and the reasons for the recommendation.
Before a recommendation is made on your application by the Minister or his delegate, you have an opportunity comment on the case officer's assessment and recommendation or to provide any new material in support of your claim to refugee status. Any comments or new material must be provided in writing. You have twenty-one (21) days, or seven (7) days if you are in custody, from the date of receipt of this letter in which to do so…
…
If you do not respond within twenty one (21) days, or seven (7) days if you are in custody, of the date of receipt of this letter, your application and the case officer's assessment and recommendation will be submitted to the Minister for Immigration, Local Government and Ethnic Affairs, or his delegate for decision without further delay. You should also know that a failure to respond to this letter may be taken to imply either that you have nothing further to add to your application or that you do not disagree with the assessment and recommendation concerning you.’
There is no evidence that there was any response to that letter. However, on 27 July 1994, it appears that the applicant applied for a Class 816 Special (Permanent) Entry Permit. A decision was made by a delegate of the Minister that the application was inadmissible because the applicant had been refused a previous application for an entry permit. An officer of the Migration Internal Review Office affirmed the delegate’s decision on 15 December 1995.
The applicant then applied to the second respondent, the Immigration Review Tribunal, as it was then known, (‘the Tribunal’), for review of that decision on 16 January 1996. On 21 February 1997 the Tribunal affirmed the decision that the applicant does not have a right of review and that the Tribunal had no jurisdiction to review the decision.
There is no evidence as to what happened in the meantime, but on 30 June 2003 the applicant applied to the High Court for constitutional writ relief in respect of the original so-called decision of 6 March 1992 and the decision of the Tribunal of 21 February 1997. The application was made by a draft order nisi supported by an affidavit sworn by the applicant on 30 June 2003. That affidavit did no more than annex copies of the letter of 6 March 1992 and the reasons of the Tribunal of 21 February 1997. The affidavit referred to the time limits imposed by the Migration Act 1958 (Cth) and the Rules of the High Court, and asserted that the time limits were invalid. On 25 August 2003 Heydon J remitted the matter to this Court.
It appears that the applicant is in detention, although that circumstance was only recently drawn to the attention of the Court; the matter was then listed before me for directions. The draft order nisi seeks relief in the nature of certiorari and mandamus in respect of the so-called decision of a delegate of the Minister of 6 March 1992 and the decision of the Tribunal of 21 February 1997. The letter of 6 March 1992 does not actually refer to any decision. It appears, however, that, there being no response to that letter, a decision was subsequently made to refuse refugee status to the applicant for the reasons set out in the assessment attached to the letter.
The applicant claims that he was given no hearing before a decision of the Tribunal was made in relation to the refusal of a protection visa. However, it does not appear that there was any application to the Tribunal for review of any decision made following the failure to respond to the letter of 6 March 1992. The assessment attached to the letter of 6 March 1992 deals with the material submitted on behalf of the applicant in support of his claim to refugee status. The assessment recorded that, after examining the applicant's supporting statements, they were found to be contradictory.
The matters that were found to be contradictory are then set out in the assessment. The assessment also indicates that little weight was given to documents submitted to support the applicant’s claims of membership of the Awami League. The assessment explains why little weight was given to that material. The assessment proceeds as follows:
‘After considering all the information put forward by the applicant I have concluded that his claims lack credibility. While I accept that the applicant may have been a member of the Awami League I reject the imputed high profile suggested by the applicant. I note that he has stated that he gave no speeches nor signed any literature that was distributed. Therefore in the light of the contradictory claims advanced and his own statements I do not accept that he has a well-founded fear of persecution on the basis of [h]is involvement with the Awami League should he return to Bangladesh.’
The applicant then apparently applied for a Class 816 Special (Permanent) Entry Permit, as I have indicated. That application was lodged on 27 July 1994 and was found to be inadmissible. That question was then the subject of the application for review by the Tribunal. The Tribunal referred to the criteria for the grant of such a permit and concluded that it had no jurisdiction to entertain the review. However, to ensure that the applicant be made fully aware of the implications of the regulations, the Tribunal dealt with the merits of the application for that permit.
Specifically, the Tribunal referred to the criteria for the grant of such a visa. Two relevant criteria were examined, namely those required by Regulations 816.724(1) and 816.732(1). The first is that the applicant must demonstrate that he was granted a visa of any class overseas on or before 12 March 1992 and used that visa to travel to and enter Australia on or before 1 November 1993. As I have indicated, the applicant travelled to Australia on his brother’s passport and a visa was granted to his brother; thus, that criterion was not satisfied.
The second criterion is that the applicant has the ability to communicate in English in a mix of social and work situations demonstrated by evidence of the kind set out in sub-clause 816.732(2) or (3). There was no evidence, nor was it claimed by the applicant, that the criteria in sub-clause 816.723(2) was satisfied. The evidence in Regulation 816.732(3) is that the applicant has successfully undertaken, at the first or second attempt, and at a time and place nominated by the Minister, a test of proficiency in English nominated by the Minister. The Tribunal referred to the fact that the applicant had unsuccessfully undertaken two tests of proficiency in English nominated by the Minister. Accordingly, that second criterion was also unsatisfied.
The grounds set out in the draft order nisi are as follows:
(a)the Member of the Tribunal did not follow the proper procedures as required by the Migration Act;
(b)the Tribunal’s decision was affected by 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’, without specifying which decision;
(d)the applicant was denied natural justice in being denied a reasonable opportunity to be heard on his application before the Minister;
(e)there has been a constructive failure of jurisdiction by the Minister’s decision of 6 March 1992, which failed to address the correct legal question;
(f)the Minister’s agent did not reach a state of satisfaction based upon a correct understanding of the law;
(g)the decision of the Minister's agent of 6 March 1992 was made in breach of rules of natural justice.
Apart from there being a misapprehension as to whether there was a decision on 6 March 1992, there is nothing before me to indicate that there is any arguable case for review on any of those grounds. In all of those circumstances, the Minister submits that it is appropriate to refuse an order nisi. That appears to me to be the appropriate course. If it be the fact that the applicant now has a genuine fear of persecution for a Convention reason if he returned to Bangladesh, it would be open to him to seek the indulgence of the Minister to make a further application. It may be that circumstances have changed. I have no material before me one way or the other and that, of course, is not matter for the Court.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 6 October 2004
Applicant appeared in person Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 23 August 2004 Date of Judgment: 23 August 2004
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