FEDERAL COURT OF AUSTRALIA S292 of 2003 v Refugee Review Tribunal [2005] FCA 1609 APPLICANT S292 OF 2003 v REFUGEE REVIEW TRIBUNAL & ORS NSD 2445 OF 2003 EMMETT J SYDNEY 9 NOVEMBER 2005 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2445 OF 2003 BETWEEN: APPLICANT S292 OF 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 9 NOVEMBER 2005 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Order 51A rule 5(1) not apply to the proceeding. 2. The application for orders nisi be refused. 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 NSD2445 OF 2003 BETWEEN: APPLICANT S292 OF 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT JUDGE: EMMETT J DATE: 9 NOVEMBER 2005 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant is a citizen of Bangladesh. On 9 October 1996, the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth) ('the Act'). On 29 May 1997, a delegate of the Minister for Immigration and Multicultural Affairs refused the application. On 1 July 1997, the applicant applied to the Refugee Review Tribunal ('the Tribunal') for review of the delegate's decision. On 11 November 1998, the Tribunal affirmed the delegate's decision. The applicant sought review of the Tribunal's decision by the Federal Court. The Federal Court (Hely J) set aside the decision and remitted the matter to the Tribunal to be determined according to law. On 13 April 2000, the Tribunal (constituted differently to the first) confirmed the original decision ('the Tribunal decision'). 2 The applicant commenced a proceeding in the High Court of Australia by filing a draft order nisi on 13 June 2003, together with an affidavit sworn the day before. The application seeks an order by the High Court that would require the respondents to show cause why writs of prohibition, certiorari, mandamus or an injunction should not issue to them in respect of the Tribunal's decision. 3 In his affidavit, the applicant claimed that he was one of the persons named in the Schedule of the Statement of Claim in the Muin v Refugee Review Tribunal [2002] HCA 30 ('Muin and Lie') class action. 4 The grounds upon which relief was claimed in the draft order nisi were as follows: '(a) Error of jurisdiction in making the decision dated 11 November 1998 and 13 April 2000. (b) Denial of natural justice due to the failure to accord the applicant/Prosecutor procedural fairness by the First Respondent in determining his review application dated 1st July 1997.' No particulars were provided. 5 The allegations contained in the draft order nisi are not capable of attracting relief under either limb of the ratio decidendi in Muin and Lie. 6 The applicant makes the following complaints in his affidavit: '[16]. (a) The Tribunal erred in law amounting to jurisdictional error in finding that the Tribunal is not satisfied that Mr Ahmed is someone to whom Australia has protection obligations under the Refugees Convention and he is therefore not entitled to a protection visa; (b) The finding that the Tribunal is not satisfied that Mr Ahmed is someone to whom Australia has protection obligations under the Refugees Convention and he is therefore not entitled to a protection visa and the consequential satisfaction were not formed by a correct application of the applicable law hence the necessary opinion does not exist; (c) The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the requirements of the Migration Act; (d) The Tribunal Member also concluded that 'I do not believe he is a refugee, I do not considered it was necessary to have these (claims) the validity of these documents checked in Bangladesh" which the Tribunal Member deliberately ignored the findings of the Federal Court by Hely J. and also refused to the request by my Adviser to check those documents if the Tribunal Member had any reservations. I respectfully state the Tribunal usurped her powers in jurisdiction in excess and expanded the scope of the jurisdiction of the Tribunal on a misconception that the Tribunal is the ultimate authority of the decision on refugee matters. (e) The Tribunal exceeded its jurisdiction in making its decision to affirm the Respondent's decision; (f) The Tribunal Constructively failed to exercise its jurisdiction in arriving at its decision; (g) The Tribunal Member consciously choosing to ignore the material in support of my claims as no significant and/or less significant, therefore the Tribunal's said decision was not based on all the materials before it and failed in its duty; (h) The Tribunal Member failed to appreciate that the "political opinion" is an essential element in considering the fear of serious harm amounting to persecution of the applicant to return to his country of origin i.e. Bangladesh; (i) The Tribunal Member having formed certain ventilating views against me and rejected my claims due to the delegate's decision based on certain incorrect information and wrongful reasoning; (j) The Tribunal Member because of the ventilating views induced by bias ought not to be carry with a practical certainty of considering all the materials readily available and/or accessible and the Member continued an erroneous approach to my claims and failed to address his mind to the material questions arising out of those materials in support of my claims for protection in Australia, (k) The Tribunal Member did not make aware of, and give an opportunity to me to respond to adverse materials in possession of the Tribunal so that I was handicapped to present my case in such a way as to meet those issues arising out of those adverse materials; (l) If I would have been given an opportunity to submit my explanations and materials in reply to the alleged adverse materials it could have led to a different decision by the Tribunal, therefore there is a jurisdictional error; (m) The Tribunal failed to perform the duty imposed on it by the Migration Act (section 425 (1)) to decide my case on the materials put to it and by conducting an appropriate enquiry there on; (n) The said decision of the Tribunal was made by the Tribunal was not a bona fide attempt to act in the Tribunal 's authority; (o) The Tribunal by denying the opportunity to me to submit my explanations and materials in reply to the alleged adverse materials the Tribunal had not fully listened to my claims and explanations I wish to put, thereby the Tribunal declined to exercise its jurisdiction and failed in its duty; (p) I am entitled to a Protection Visa, which I have applied; and (q) I have a well founded fear of persecution in the country of nationality i.e. Bangladesh; (r) I state the decision of the First Respondent to affirm the decision of the delegate refusing me the grant of the protection visa is invalid. [17]. I state I was misled and I have not unreasonably acted on the basis of what I had been told. The RRT Member before she made her decision failed to make aware of, and given an opportunity to me to respond to adverse material in possession of the Tribunal categorised by the delegate of the Minister for Immigration and Multicultural Affairs as the Part B Documents of her decision dated 29 May 1997 (Exhibit A2). [18]. In these circumstances, I state for the reasons stated above there is an error of jurisdiction and I was also not accorded natural justice due to the failure to accord me procedural fairness. [19]. I state the decision of the First defendant to affirm the decision of the delegate refusing me the grant of the protection visa is invalid.' 7 At the Tribunal hearing of 13 April 2000, the claim of the applicant considered by the Tribunal was that he feared political persecution in Bangladesh because of his involvement with the Zia Parishad in Australia in 1994, at which time he had come to Australia on a student visa. The applicant claimed that he wrote articles about the subversive activities of the Awami League and that these articles were published in magazines in Bangladesh. The applicant claimed that when the Awami League came into power in 1996, the magazines were banned, that members of staff who ran the magazine were falsely charged and that members of his own family were tortured. He claimed that courts in Bangladesh continued to issue warrants for his arrest. He claimed that he feared he would be killed if he were returned to Bangladesh. 8 The Tribunal noted that the applicant had returned to Bangladesh to visit his family in February 1996 and returned to Australia in March 1996 without difficulty. The applicant's response was that the charges were not laid against him until after his return to Australia. 9 The Tribunal noted that in a previous Tribunal hearing the applicant had claimed that charges were falsely laid against his family in January 1996 and an arrest warrant issued against them. At that hearing, the applicant had said that, given the current political climate in Bangladesh, while he still feared he would be arrested upon return he believed he would be released quickly but that his main concern was being tortured while in detention and that he would have difficulty obtaining employment as a pilot with the government airline. The applicant was able to provide that Tribunal with copies of the articles he claimed to have written, but not originals as requested by that Tribunal. In September 1998, the applicant forwarded a copy of an arrest warrant written in Bengali to that Tribunal but it was advised by a translator that it was not legible. On 12 October 1998 the applicant wrote to advise that Tribunal that many warrants had been issued for his arrest, including for the fabricated charge of murder. He also provided correspondence from his lawyer and family advising him that the case against him was going badly and that the police were searching for him throughout Bangladesh. 10 The first Tribunal did not accept that warrants had in fact been issued against the applicant on political grounds and that the applicant did not face a real chance of persecution if he were to return to Bangladesh. That decision was set aside by the Federal Court because the first Tribunal had not alerted the applicant to the fact that it did not believe the documents he submitted were not genuine. 11 The applicant obtained a new legal adviser and the second Tribunal was sent various correspondences by the legal adviser of an entry in police records and a letter dated 11 October 1999 from the Assistant Office Secretary of the Bangladesh National Party in Dhaka in support of the applicant's claims. The applicant attended a hearing by a differently constituted Tribunal on 22 July 1998. The applicant agreed that some of the claims made in his initial statement were untrue, specifically that the magazines that had published his articles were closed and his family home ransacked and father attacked. The Tribunal alerted the applicant to the various difficulties it had with accepting aspects of the evidence tendered earlier and at the hearing. It also informed the applicant that did not intend to have the documents checked as it did not believe this was necessary. The Tribunal advised the applicant that even if it accepted his claims were true and the documents genuine, its understanding of the Bangladesh judiciary was that the higher courts acted independently and as he and his family were well educated and capable of obtaining legal assistance, that any cases pending against him would be dealt with fairly in the Bangladesh judicial system. 12 The Tribunal found that the claims made by the applicant in relation to his political activities and problems lacked credibility for reasons more extensive than the acknowledged dishonesty mentioned above, citing various inconsistencies and omissions in the applicants evidence. It could also not accept the veracity of documents provided as evidence given the overall problems with the applicants credibility and country information regarding the ease at which falsified documents could be obtained, the dates of the documents which raised inconsistencies with other evidence supplied by the applicant and the wording used, including a letter from a lawyer that the applicant claimed he had never before met, beginning with a wish of 'best love'. These concerns were put to the applicant at the hearing and the applicant himself agreed that it was easy to obtain false documents in Bangladesh. 13 In any case, the Tribunal stated that even if it accepted that false claims had been filed against the applicant, the judiciary at the higher court level in Bangladesh acted in a fair and independent manner and that the applicant was able to obtain legal representation and defend the charges in court. Concluding that the applicant did not have a well-founded fear of persecution for a reason relating to the 1951 Convention Relating to the Status of Refugees, the Tribunal noted: 'Before reaching this decision, I considered [the applicant's] request that I check the authenticity of his documents. However, as pointed out at the hearing, advice from the Department of Foreign Affairs cable DA1412 of 26 November 1996, it is difficult and extremely time consuming to check court documents in Bangladesh as lower ranking officer [sic], some of whom are involved in the issuing of false documents, are not cooperative. …In these circumstances and given that I have no doubt about my findings regarding [the applicant's] circumstances and given that I have no doubt about my findings regarding [the applicant's] credibility and that even if I accept at face value his claims as expressed at the second hearing, I do not believe he is a refugee, I do not consider it was necessary to have these [sic] the validity of these documents checked in Bangladesh.' 14 The proceeding commenced in the High Court was remitted to the Federal Court of Australia by the High Court. For the reasons set out in Applicant S195 v Refugee Review Tribunal [2005] FCA 1571, it is appropriate for this matter to be dealt with on the papers. 15 Accordingly, on 12 November 2004, the New South Wales District Registrar wrote to the applicant saying, relevantly, as follows: 'As a result of an order by the High Court, your application was transferred to the Federal Court of Australia. The Federal Court must consider whether there is an arguable case for the Court to make an Order nisi. If the Court decides that there is no arguable case, your application for an Order nisi will be refused. The Court proposes to consider whether there is an arguable case on the basis of the written material that you have given to the Court and without any oral hearing. The lawyer for the Minister will not be giving any information to the Court. Before the Court makes a decision you may make such written submissions in the English language as you wish o the question of whether the Court should make an Order nisi. Any submissions must be lodged with the Registry of the Court no later than 10 December 2004.' 16 There has been no response to that letter. 17 Complaints [16](k), (l) and [17] in the affidavit arguably constitute bases for relief under the first limb of Muin and Lie, i.e. a failure to draw to the applicant's attention adverse country information before the Tribunal. It is further possible that ground 16(o) may also be capable of constituting a ground for relief. 18 However, the material before the Court, including the Tribunal's decision record, does not disclose an arguable case for those propositions and the argument that the Tribunal fell into jurisdictional error. 19 Order 51A rule 5(1) of the Federal Court Rules provides that, where an application for an Order nisi is remitted by the High Court to the Federal Court, the Federal Court will, at the same time, hear the parties on whether, if the Order nisi were made, it should be made absolute. Rule 5(2) qualifies rule 5(1) and provides that, in a particular case, the Court may order that rule 5(1) does not apply. It is appropriate to make an order under rule 5(2) in this case. 20 Accordingly, the refusal of orders presently sought would not constitute a final determination of any question between the applicant and respondents named in the draft order nisi and thus would not give rise to any issue estoppel or res judicata as between the applicant and the respondents. The applicant may commence a fresh proceeding in the Federal Magistrates Court should the applicant wish to pursue any claim for relief in respect of the Tribunal's decision. 21 In the circumstances the orders nisi should be refused. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 9 November 2005 Date of Judgment: 9 November 2005