S459 of 2003 v Refugee Review Tribunal

[2004] FCA 668

FEDERAL COURT OF AUSTRALIA

S459 of 2003 v Refugee Review Tribunal [2004] FCA 668

S459 OF 2003 v REFUGEE REVIEW TRIBUNAL & ORS
N 2538 OF 2003

EMMETT J
9 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2538 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

S459 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

SECRETARY OF THE DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

9 FEBRUARY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

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

2.        The application for an order nisi be refused.

2.        The applicant pay the Minister’s 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	N 2538 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

S459 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

SECRETARY OF THE DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:	EMMETT J
DATE:	9 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 18 August 2003 the applicant commenced a proceeding in the High Court of Australia by filing a draft order nisi and an affidavit in support sworn on 15 August 2003.  The applicant applied for constitutional writ relief in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) of 17 August 2000 affirming a decision not to grant him a protection visa. 

2. On 12 November 2003 the proceeding was remitted to this Court by Heydon J.  The ground specified in the draft order nisi for the grant of relief was that the decision of the Tribunal was invalid because the Tribunal failed to afford the applicant an opportunity to prepare and present favourable material or an adequate opportunity to respond to unfavourable material and the Tribunal did not have the benefit of full country information upon which the primary decision of the Minister had been made in relation to the application for protection visa. 

3. The affidavit in support of the order nisi discloses no grounds upon which relief could be granted.  It asserts that the Tribunal failed to address all the issues and it did not fully consider all the evidence before it.  When invited to expound on that assertion in support of the application for an order nisi, the applicant said that the Tribunal did not ask for his identity card to show that he was from Aceh and that he could speak the dialect spoken in Aceh.  He also said that the Tribunal failed to consider the evidence that he was from Aceh, that he was an activist and that his life would be in danger if he returned to Indonesia. 

4. The reasons of the Tribunal, which were tendered by the Minister because they were not attached to the affidavit, indicate that the applicant appeared before the Tribunal and gave oral evidence.  He was assisted by an interpreter and was represented by a migration agent.  The Tribunal appears to have accepted that the applicant was from Aceh.  However, the Tribunal found the applicant a very unconvincing witness.  Having regard to inconsistencies in the applicant’s evidence and his inability to provide the Tribunal with details requested at the hearing, the Tribunal did not accept the applicant as a witness of truth. 

5. Having regard to the view formed about the applicant’s credibility, the Tribunal did not accept the claims made by the applicant that he had been involved in demonstrations, that he had been arrested and detained in a military prison, that he had been involved in an illegal organisation and that he was charged with or accused of subversion and subsequently detained in a military prison.  The Tribunal did not accept the applicant’s allegations that he was on the run or in hiding between 1990 and 1995. 

6. In the circumstances I do not consider that any basis has been made out for the grant of an order nisi and accordingly I propose to refuse an order nisi.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            31 May 2004

Solicitor for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 February 2004
Date of Judgment:	9 February 2004