Applicant S209 of 2003 v Refugee Review Tribunal [2006] FCAFC 181

FEDERAL COURT OF AUSTRALIA

Applicant S209 of 2003 v Refugee Review Tribunal [2006] FCAFC 181 APPLICANT S209 OF 2003 v REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NSD 431 OF 2006

RYAN, DOWSETT AND RARES JJ

13 DECEMBER 2006

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 431 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: APPLICANT S209 OF 2003

Appellant

AND: REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

JUDGES: RYAN, DOWSETT AND RARES JJ DATE OF ORDER: 13 DECEMBER 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the second respondent's costs. 3. The name of the second respondent be amended to 'Minister for Immigration and Multicultural Affairs'. 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 431 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: APPLICANT S209 OF 2003

Appellant

AND: REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

JUDGES: RYAN, DOWSETT AND RARES JJ

DATE: 13 DECEMBER 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT RYAN J: 1 I have had the advantage of reading in draft the separate reasons which have been prepared by Dowsett J and Rares J. I agree with each of their Honours that the appeal should be dismissed with costs. 2 Like Dowsett J, I agree with the learned primary judge that, despite some ambiguities in the Tribunal's formulation of its reasons, it should be taken to have found that the letter from the member of parliament was not fraudulent in the sense of not having been written and signed by Sadeq Hossain but had been constructed solely to support the appellant's claim for a protection visa. I have been led to that conclusion primarily by the fact that the Tribunal assessed "the letters" from the parliamentarian and the lawyer together and found that they "are constructed to support the Applicant's claims". 3 It is true that the Tribunal went on, in the paragraph immediately after that from which I have quoted, to observe; 'In regard to the letter purportedly written by a member of parliament and of the BNP party I find it implausible that such a member of parliament of the same political persuasion would assist the departure of a person who is of such claimed importance to the party without using the resources of the party to provide protection in Bangladesh such that he could continue to operate on their behalf.' 4 However, that reasoning is at least equally apt to express support for the finding, which I impute to the Tribunal, that the letter, although authentic, had been "written to order" and misrepresented or exaggerated the risk to the appellant if he were to return to Bangladesh. 5 I also agree that, in the circumstances of this case, s 424A of the Migration Act 1958 (Cth) ("the Act") had no application to the arrest warrant and other court documents. In relation to the renewal of the appellant's passport and the timing and circumstances of his departure through the Dhaka International Airport, I consider that the relevant information was probably supplied by the appellant himself and so within the exception created by s 424A(3) of the Act. I also share Dowsett J's doubts as to whether the Tribunal considered that the information presumptively derived from the passport was the reason, or part of the reason, for affirming the decision under review. In any event, in the absence of evidence directed to this issue it is inappropriate, for the reasons given by Dowsett J, to allow it to be agitated on appeal. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.