S365 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 185

FEDERAL COURT OF AUSTRALIA

S365 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 185 S365 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ORS NSD 2345 of 2005 GRAHAM J 13 FEBRUARY 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2345 OF 2005

BETWEEN: S365 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

CHRIS KEHER MEMBER OF THE REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: GRAHAM J

DATE OF ORDER: 13 FEBRUARY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The time for filing the Applicant's application for leave to appeal be extended up to and including 28 November 2005. 2. The application for leave to appeal be dismissed. 3. The Applicant pay the First Respondent's costs fixed in the agreed amount of $800. 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 2345 OF 2005

BETWEEN: S365 OF 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

CHRIS KEHER MEMBER OF THE REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: GRAHAM J

DATE: 13 FEBRUARY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 What is presently before the Court is an application for leave to appeal filed 28 November 2005, which is supported by an affidavit of the Applicant, sworn 28 November 2005. By the application, the Applicant, who is identified for the purposes of these proceedings as S365/2003, seeks leave to appeal from a decision of Emmett J delivered on 9 November 2005. The decision of Emmett J was interlocutory in nature and accordingly the time within which an application for leave to appeal should have been filed under Order 52, rule 10(2A)(b) of the Federal Court Rules was seven days after the judgment of Emmett J was pronounced. 2 In point of fact, the application was brought out of time. Mr Marcus, solicitor, from the Australian Government Solicitor, who appears for the Minister, has indicated that the Minister would not oppose an extension of time for the bringing of the application were it otherwise to have merit. The submission of the Minister is that the application is futile and, accordingly, the issue of time does not arise. I will, however, treat the application as one both for an extension of time within which to bring the application and then the substantive application itself. 3 The Applicant is a national of Bangladesh. Some time after he arrived in Australia, he applied for a Protection Visa. The Minister's delegate made a determination on 5 May 1997 that the Applicant was not a person to whom Australia owed protection obligations. The Applicant sought review of that decision and on 29 April 1998 the Refugee Review Tribunal ('the Tribunal') affirmed the decision of the Minister's delegate not to grant the Applicant a Protection Visa. On 20 June 2003, the Applicant applied for the grant of an order nisi for the issue of constitutional writ relief in respect of the Tribunal's decision in the High Court of Australia. 4 That court remitted that application for an order nisi to this court, and it was in response to that application that Emmett J determined on 9 November 2005 that the application should be refused. The draft order nisi which was submitted to the High Court nominated seven grounds upon which the Applicant intended to rely, only three of which related to the decision of the Tribunal. In the present application the Applicant has submitted a draft notice of appeal which indicates a number of grounds of appeal that the Applicant would wish to rely upon were leave to appeal granted. None of those grounds of appeal raise matters covered by the grounds raised in the draft order nisi. 5 The draft notice of appeal raises issues such as the constitutional validity of s 424A of the Migration Act 1958 (Cth), which section did not even come into force until a year after the Tribunal decision in question. 6 When the Tribunal considered the Applicant's application for review of the Minister's delegate's decision the Tribunal concluded that certain claims made by the Applicant had been fabricated. The Applicant relied upon an association with the BNP to justify a well-founded fear of persecution for reason of political opinion expressed by him in circumstances where the BNP had become the minority party in the Bangladesh Parliament. The Tribunal found that any interest that may have been expressed in the Applicant was not for political opinion but rather, for reasons of extortion. The Tribunal said: 'Fear of criminal activity of extortion does not of itself establish persecution or link the matter to a Convention ground. There must be something more and such must be more than a "bare causal connection". The Tribunal does not consider that the applicant is of interest to anyone because of former membership of the BNP but because of his perceived ability to pay money. The Tribunal finds that the applicant's former BNP connection and membership is a bare causal connection.' 7 Overall, the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for reason of, relevantly, political opinion. When considering the application for an order nisi, Emmett J observed that no fact had been established by evidence which could possibly lead to the finding of want of procedural fairness which flowed from the agreed facts in Muin v Refugee Review Tribunal (2002) 76 ALJR 966. Emmett J concluded that no arguable case had been made before the Court for the making of an order nisi as sought. 8 For a grant of leave to appeal to be made it is necessary for the Applicant to establish that the decision of Emmett J on the application for the grant of an order nisi was attended with sufficient doubt to warrant its reconsideration and that substantial injustice would result if leave were refused. 9 As I indicated earlier, Mr Markus has submitted on behalf of the Minister that the application is futile, there having been no relevant demonstration of any doubt in respect of the correctness of the decision of Emmett J on the material that was before him. I agree that that is the case. In the circumstances, the application for leave to appeal should be refused. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham .