Applicant S594 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1110

FEDERAL COURT OF AUSTRALIA

Applicant S594 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1110 APPLICANT S594 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 591 of 2004 BRANSON J 23 AUGUST 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 591 of 2004

BETWEEN: APPLICANT S594 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 23 AUGUST 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT the application for an order nisi for constitutional writs be refused.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 591 of 2004

BETWEEN: APPLICANT S594 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE: 23 AUGUST 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 16 February 2004 Heydon J made an order remitting to this Court further proceedings on an application made by the applicant to the High Court of Australia for an order nisi for the issue of constitutional writs. The draft order nisi filed in the High Court called for cause to be shown why, amongst other writs, a writ of certiorari should not issue to quash a decision of the Refugee Review Tribunal made on 31 May 1995. 2 The explanation given by the applicant for his delay in excess of eight years in seeking relief in respect of the decision of the Tribunal is confused. However, I accept that the applicant regarded himself, and was presumably regarded by the respondent, as a member of the Muin class action initiated in the High Court. I further accept that the applicant did not lodge an individual application with the High Court within the time frame allowed by that court because he received certain misinformation. 3 It is possible, as the Minister submits by her written submissions, that this proceeding ought simply to be dismissed as a matter of discretion because of the delay in bringing it. The Minister has been unable to locate certain departmental files concerning the applicant, presumably because of this delay. However, I would hesitate to accept the submission of the Minister if the applicant's application disclosed real merit. 4 The reasons for decision of the Tribunal reveal that it affirmed the decision of a delegate of the respondent to refuse to grant the applicant a protection visa. The Tribunal affirmed the decision because it did not find the applicant to be a truthful or credible witness. The assessment of the applicant's credibility was a matter for the Tribunal. The Tribunal's reasons disclose logical and convincing reasons for its view that the applicant had fabricated his claims and evidence in order to enhance his claim for refugee status. 5 The Tribunal found that the applicant did not leave Bangladesh because he feared persecution for a Convention reason. It also found that the chance that he would face persecution for a Convention reason on his return to Bangladesh was remote. I am unable to identify any jurisdictional or other error made by the Tribunal in reaching the above conclusions. The applicant has today drawn my attention to recent tragic events in Bangladesh. As the decision which I am required to review was a decision made in 1995 recent events in Bangladesh cannot be taken into account in this proceeding. 6 Having regard both to the delay that attended the application by the applicant to the High Court and the apparent lack of merit of his application, the appropriate order in this case, in my view, is to refuse to make the order nisi sought. 7 The application for an order nisi for constitutional writs is refused. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.