S540 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 503
•9 FEBRUARY 2004
FEDERAL COURT OF AUSTRALIA
S540 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 503
S540 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS
N 2539 OF 2003
EMMETT J
9 FEBRUARY 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 2539 OF 2003
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
BETWEEN:
S540 OF 2003
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENTPRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT
D KELLEGHAN, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENTJUDGE:
EMMETT J
DATE OF ORDER:
9 FEBRUARY 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. 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 2539 OF 2003
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
BETWEEN:
S540 OF 2003
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENTPRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT
D KELLEGHAN, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT
JUDGE:
EMMETT J
DATE:
9 FEBRUARY 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant commenced a proceeding in the High Court of Australia by filing a draft order nisi on 14 October 2003, together with an affidavit in support sworn on 14 October 2003. The applicant sought prerogative writ relief in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) given on 24 June 2002 affirming a decision not to grant him a protection visa under the Migration Act 1958 (Cth) (‘the Act’).
The grounds stated in the draft order nisi were not particularised. The grounds might be summarised as follows:
(a)the Tribunal did not follow the proper procedure 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 in being denied a reasonable opportunity to be heard;
(e)the Tribunal failed to address the correct legal question by not applying itself to all of the issues it was required to consider;
(f)the Tribunal did not reach a state of satisfaction necessary for the exercise of jurisdiction because of an incorrect understanding of the law;
(g)the Minister’s decision was made in breach of rules of natural justice.
The last four grounds appear to relate to the decision of the Minister’s delegate rather than the Tribunal. It is the decision of the Tribunal that is under review. A further affidavit was filed in support of the application, purported to specify grounds. The affidavit is somewhat unintelligible. It asserts the following:
- the Tribunal failed in its written statement that a breach of the rules of natural justice;
- the Tribunal failed to internalise the circumstantial grounds of the review application;
- in weighing both the subjective and objective claims of the review application and in reviewing the huge supporting documents and facts the Tribunal has breached sections 424, 430, 439 and 440 of the Act.
There is an unintelligible reference to the Federal Court, which has not previously had any part to play in the application.
It is asserted that the Tribunal overwhelmingly depended on the Department of Foreign Affairs and Trade and other agency reports, which were alleged to be secondary and fallacious sources. It is alleged that the Tribunal did not consider a detailed submission and supporting documents provided by the applicant.
The Tribunal’s reasons indicate that the Tribunal wrote to the applicant advising that it had considered all the papers and was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence, but on the day of the hearing the applicant’s representative indicated to the Tribunal that the applicant did not wish to give oral evidence.
The Tribunal therefore determined the matter on the evidence available to it without any submission from the applicant. The Tribunal accepted that the applicant was a member of the Bangladesh National Party and accepted that he faced a certain level of antagonism from members of the rival Awami League. However, the Tribunal was not prepared to accept the rest of his claims without more detail. The Tribunal was not satisfied that the Awami League had abducted the applicant’s daughter, killed his brother, burned down his business and were intent on murdering him as he alleged. Without more information on those matters, the Tribunal was not satisfied that the applicant’s claims were genuine or that they credibly supported an application for a protection visa.
On the basis of country information before it, the Tribunal considered that documentation provided by the applicant in support of his claims should be given no weight. In any event, the Tribunal considered that it could not be credibly asserted that a member of a party feared persecution "in the expression of his political views" when that party had swept the polls at an election in the country. The Tribunal observed that the Bangladesh National Party was in power in Bangladesh, having secured an overwhelming majority in the October 2001 election.
In the circumstances, I do not consider there is any material before me that would justify the grant of an order nisi. Accordingly, I propose to refuse an order nisi and to order the applicant to pay the Minister’s costs.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 27 April 2004
Solicitor for the Applicant: Ward Maxwell & Co Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 9 February 2004 Date of Judgment: 9 February 2004
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