Applicant S326/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1649

FEDERAL COURT OF AUSTRALIA

Applicant S326/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1649

MIGRATION – Refugee Review Tribunal – application for order nisi – no issue of principle – application dismissed APPLICANT S326/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & REFUGEE REVIEW TRIBUNAL & MS PHILIPPA MCINTOSH MEMBER OF THE REFUGEE REVIEW TRIBUNAL NSD 2436 OF 2003 CONTI J 18 NOVEMBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2436 OF 2003

BETWEEN: APPLICANT S326/2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

MS PHILIPPA MCINTOSH MEMBER OF THE REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 18 NOVEMBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for order nisi be dismissed. 2. The applicant pay the respondents' costs of the application. 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 2436 OF 2003

BETWEEN: APPLICANT S326/2003

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

MS PHILIPPA MCINTOSH MEMBER OF THE REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: CONTI J

DATE: 18 NOVEMBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a national of Bangladesh who arrived in Australia on 6 December 1997. On 13 January 1998 the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth). A decision was made by a Ministerial delegate to reject that application on 3 March 1998, which decision was affirmed by the Refugee Review Tribunal ('the Tribunal') on 11 January 1999. 2 The applicant then apparently became associated with the proceedings in the High Court of Australia generally referred to as Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601. On 18 June 2003 the applicant filed in the High Court of Australia a draft order nisi seeking constitutional writ relief in respect of the decision of the Tribunal, together with an affidavit in support that he had sworn. Pursuant to orders made by Gaudron J, the proceedings were remitted to this Court. 3 By correspondence dated 12 November 2004, the District Registrar of this Court advised the applicant that the Court proposed to consider whether there is an arguable case for the making of an order nisi on the basis of the written material before the Court. The applicant was invited to file written submissions, and did so on 6 December 2004. 4 I propose to deal with this application on the papers. 5 The Tribunal's reasons for decision presently the subject of this application reveal that the Tribunal was not satisfied that the applicant held any fear of suffering persecutory treatment in Bangladesh for any Convention reason. Those reasons recorded in considerable detail the claims made by the applicant in his various written submissions to the Department of Immigration and the Tribunal, as well as those contained in his oral testimony given at the Tribunal hearing. The applicant claimed to have been an activist engaged in supporting the Bangladesh Nationalist Party (BNP), which involvement led to the looting of his house by armed Awami League supporters, as well as a series of attempts on his life and the bringing of false prosecutions against him by reason of his political beliefs. The applicant also claimed to have been general secretary of the BNP in Lalbagh, Bangladesh, and for that reason to have been targeted by an Awami League 'gangster', who had many connections within Bangladesh and presented a threat to the applicant's life wherever he went by virtue of those connections. 6 The Tribunal found those claims to be implausible. The Tribunal had serious doubts that the applicant was appointed general secretary of his local BNP branch at the time stated by the applicant, since the applicant would have been aged 16 years at that time and ineligible even to vote in the country's general elections. Moreover, at the hearing the applicant was unable to recall the name of the BNP's Assistant Secretary General at that time, even though that person had purportedly written a letter in support of the applicant as recently as January 1998 confirming that he knew the applicant. The Tribunal spent considerable time scrutinising the documentation provided by the applicant in support of his claim that he was the subject of 'false prosecutions' in Bangladesh. Those documents consisted largely of purported original versions of arrest warrants issued by various Bangladeshi police stations and sent to the applicant by his family once he had reached Australia. The Tribunal concluded for a number of reasons that that documentation was false and it was not satisfied that the applicant was the subject of politically-motivated charges at the relevant time. The Tribunal also experienced difficulty accepting the applicant's claims to fear harm from the Awami League gangster, pointing to the absence of any reference to that person in his written statement of claims given to the Department and later to the Tribunal, as well as the applicant's own evidence that he continued to reside at the same location and work in the same job for a lengthy period of time after the threat from the gangster was purportedly made. 7 The Tribunal also considered that by virtue of the applicant's apparent means (by Bangladesh's standards of living), which were apparent from the applicant's own evidence of how much he paid the agent to arrange his visa and passage to Australia, that he was in a position to relocate within Bangladesh to obtain security from any persecution. 8 The draft order nisi filed by the applicant purports to articulate numerous grounds for the constitutional writ relief sought, as do the written submissions filed by the applicant in support of the application. Although some of the grounds formulated amount to the assertion of a recognised head of jurisdictional error, namely the assertion that the Tribunal deprived the applicant of procedural fairness, those grounds are unarguably doomed to fail. The majority of those asserted grounds lack any particularisation at all, and the limited particularisation that is provided in respect of the remainder of the grounds is completely inapplicable to the factual circumstances pertaining to the applicant and the Tribunal's decision. In the context of the relief claimed by the present applicant, there is no material that would show that it is at least arguable that the Tribunal fell into jurisdictional error in making its decision, such that orders ought to be made to quash the Decision and to restrain the Minister from acting on the decision. 9 The material before me does not therefore disclose any basis on which one could conclude there is at least an arguable case for the grant of constitutional writ relief. The application is dismissed and I order the applicant to pay the respondents' costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.