Applicant S353 of 2003 v Refugee Review Tribunal [2005] FCA 1757

FEDERAL COURT OF AUSTRALIA

applicant S353 of 2003 v Refugee Review Tribunal [2005] FCA 1757

APPLICANT S353 of 2003 v REFUGEE REVIEW TRIBUNAL AND Minister for Immigration and Multicultural and Indigenous Affairs NSD 2483 of 2003 MOORE J 29 NOVEMBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2483 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN: APPLICANT S353 of 2003

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SECOND RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 29 NOVEMBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The Secretary of the Department of Immigration and Multicultural and Indigenous Affairs and the Commonwealth of Australia be removed as respondents to the proceedings. 2. The Minister for Immigration and Multicultural and Indigenous Affairs be added as the second respondent to the proceedings. 3. The application for an order nisi be dismissed. 4. The applicant pay the Minister for Immigration and Multicultural and Indigenous Affairs' costs fixed in the sum of $1500. 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 2483OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN: APPLICANT S353 of 2003

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SECOND RESPONDENT

JUDGE: MOORE J

DATE: 29 NOVEMBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for an order nisi filed in the High Court on 20 June 2003. The matter has been remitted to this Court. The applicant challenges a decision of the Refugee Review Tribunal ("the Tribunal") of 18 October 2000. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") to refuse to grant the applicant a protection visa. 2 The applicant is a national of India and claimed to have a well founded fear of persecution on the basis of his prior involvement in a number of left wing political parties. The Tribunal did not believe the applicant's account of his experiences in India before arriving in Australia. The Tribunal found the applicant's story to be completely unbelievable and that the applicant's key claims had been concocted to enhance his application for refugee status. 3 The affidavit filed in the High Court on 20 June 2003 and the draft order nisi disclosed no grounds on which an order might issue. The applicant filed written submissions in this Court on 21 November 2005, setting out what are said to be grounds of the application. Those grounds are, in substance, a recitation of the applicant's account of circumstances in India at the moment and are irrelevant. The five particulars set out in the written submissions are: (i) Subparagraph 65(1)(a)(ii) of the Migration Act 1958 (the Act) required the respondent in respect of the applicant's primary application for a Protection visa to make a determination as to whether criteria for the grant of the visa prescribed by the Act or the regulations made thereunder (sic) were satisfied; (ii) the Act at the time of the applicant's review application tot eh Tribunal required the Tribunal to review the decision of the respondent and to that end the Act vested the Tribunal with powers and discretions conferred by the Act on the respondent; (iii) On 7 November 2000 the Refugee Review Tribunal (RRT) affirmed a decision made by the Minister not to grant a protection visa was biased on the basis that the Tribunal acknowledged the significance of my political activity as PWG member and my religious background and the Tribunal did not provide an opportunity before the Tribunal for the applicant to substantiate his claims of persecution and fear for life, regardless of whether the Tribunal eventually decided to give any oral evidence no weight; (iv) the Tribunal failed to take into consideration of the applicant's trauma and state of mind when assessing his fears of retribution by the State police agency of his religion; (v) as the decision of the Tribunal was not made well within the jurisdiction to make such a decision and failed to exercise its jurisdiction with error. Consequently the decision was not "decision" (sic) for the purposes of the definition of a "privative clause decision" under s 474 of the Migration Act 1958 and therefore was not such a privative clause decision. The only arguable matter raised in those particulars is an allegation of bias. Nothing was pointed to by the applicant which would support that allegation and it is not apparent to me, having regard to the Tribunal's reasons for decision, that the Tribunal dealt with the applicant's claims with a closed mind. 4 No arguable ground of jurisdictional error has been established. The application for the order nisi should be dismissed. The should applicant pay the Minister's costs fixed in the sum of $1500. 5 As a procedural matter, the presently named second and third respondent, the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs and the Commonwealth of Australia, respectively, should be removed as respondents and the Minister for Immigration and Multicultural and Indigenous Affairs should be added as a second respondent. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.