FEDERAL COURT OF AUSTRALIA S210 of 2003 v Refugee Review Tribunal [2006] FCA 210 S210 OF 2003 v REFUGEE REVIEW TRIBUNAL & ORS NSD 2393 of 2005 GRAHAM J 14 FEBRUARY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2393 OF 2005 BETWEEN: S210 OF 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT JUDGE: GRAHAM J DATE OF ORDER: 14 FEBRUARY 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The time for filing the Applicant's application as one for leave to appeal from the judgment of Justice Emmett of 9 November, 2005 be extended up to and including 2 December 2005. 2. The application for leave to appeal be dismissed. 3. The Applicant pay the Second and Third Respondents' costs, fixed in the agreed amount of $900. 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 2393 OF 2005 BETWEEN: S210 OF 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT JUDGE: GRAHAM J DATE: 14 FEBRUARY 2006 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The Applicant, who is identified for the purposes of these proceedings as S210 of 2003, was born in Bangladesh. He arrived in Australia on 30 November 1996 and applied for a Protection Visa on 3 February 1997. On 29 May 1997, the Minister's delegate refused the application for a Protection Visa. On 10 June 1997, the Applicant sought review of the Minister's delegate's decision before the Refugee Review Tribunal ('the Tribunal'). On 27 May 1998, a hearing took place before the Tribunal constituted at the time by S. Akeemana, who thereafter left the Tribunal. 2 At the hearing on 27 May 1998, the Applicant gave oral evidence and his brother also gave evidence. The Tribunal was reconstituted whereupon Chris Keher became the Tribunal Member for the purpose of concluding the Applicant's application for review. The new Tribunal Member caused the tape recording of the hearing on 27 May 1998 to be transcribed. The Tribunal Member both read the transcript and also listened to the tapes so as to put himself in the same position as his predecessor in terms of knowing what the Applicant wished to say. 3 On 12 October 2000, the Tribunal wrote to the Applicant requesting any further information which the Applicant wished to place before the Tribunal. At the time, he was represented by Parish Patience, solicitors, who responded to the invitation to present further information by letter dated 5 January 2001. That response was considered by the Tribunal. One of the issues which was addressed by the Tribunal was whether the Applicant was the person whom he claimed to be. There was some conflicting evidence as to his date of birth and his case was that he arrived in Australia using a passport in somebody else's name. 4 Notwithstanding reservations which the Tribunal had, it was prepared to accept that the Applicant had the identity which he claimed. The essence of the Applicant's case before the Tribunal was that he was a member of the Bangladesh National Party known as BNP and as such, was subjected to persecution by members of the Awami League. His case was that he was kidnapped and tortured on three occasions in late 1996 by members of the Awami League. 5 For the Applicant to be entitled to a Protection Visa, it was necessary for the Tribunal to be satisfied that the Applicant was outside Bangladesh because he had a well-founded fear of persecution for a Convention reason. 6 In its reasons for decision, the Tribunal indicated that it had considered certain independent country information however, it did not reach its decision by reference to such information. In the end result, the Tribunal did not find the Applicant to be a credible witness. It did not accept that the Applicant had anything to do with the BNP. The Tribunal found that the Applicant's claims relating to his alleged involvement had been fabricated. The Tribunal did not accept the truth of the Applicant's claims as to his alleged kidnap and torture. 7 Having carefully considered the matter, the Tribunal found that the Applicant had fabricated his claim of kidnap and torture for the purpose of advancing his Protection Visa application. In the circumstances the Tribunal was not satisfied that the Applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. 8 On 22 May 2003 the Applicant applied to the High Court of Australia for the issue of an order nisi seeking constitutional writ relief in respect of the decision of the Tribunal. The grounds relied upon were: 'a) Error of jurisdiction in making the decision dated 26 March 2001 by the First Respondent [referring to the Tribunal]: a) Denial of natural justice due to the failure to afford the Applicant/Prosecutor procedural fairness by the First Respondent in determining his review application dated 10 June 1997.' 9 In support of the application for an order nisi the Applicant relied upon an affidavit affirmed by him on 22 May 2003. That affidavit set out at length the case that he would wish to present were the matter to come before the Tribunal again. It included a number of grounds of complaint in respect of the decision of the Tribunal of 26 March 2001. Amongst other things one of the grounds of complaint was: '(f) The Tribunal Member consciously choosing to ignore the material in support of my claims as no significant and/or less significant (sic), therefore the Tribunal's said decision was not based on all the materials before it and failed in its duty;' 10 Another ground of complaint was: '(j) The Tribunal Member did not make aware of, and given opportunity to me to respond (sic) to adverse material 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;' 11 No evidence was provided as to what material had been presented to the Tribunal which the Tribunal Member ignored and no evidence was provided as to what adverse material in the possession of the Tribunal had been considered by it without affording an opportunity to the Applicant to respond to it. As mentioned earlier, the country information to which the Tribunal Member referred had no bearing on the ultimate decision of the application for review. The ultimate decision was, of course, one which was dependent upon the credibility or lack of it of the Applicant. 12 The application for an order nisi in the High Court was remitted to this Court for consideration. Without proceeding to an oral hearing, Emmett J on 9 November 2005 ordered that the application for an order nisi be refused. His Honour referred to the grounds upon which relief was claimed in the draft order nisi as quoted above. He observed that no particulars of those grounds had been provided. His Honour referred to the Applicant's affidavit to which reference has been made which reiterated the complaints and assertions that the Tribunal had failed to the draw to the Applicant's attention adverse country information before the Tribunal. His Honour observed that the conclusion reached by the Tribunal was unrelated to acceptance or otherwise of that country information. 13 His Honour proceeded to observe that, on an application for the grant of an order nisi for constitutional writ relief, the purpose of any affidavit in support was to provide material showing that there was at least an arguable case for the grant of the final relief claimed. His Honour observed, and I agree, that the material must be more than mere pleading or assertion of the right to such relief. It must contain some evidence of facts that would support the grant of the relief claimed. His Honour observed that the material before the Court in the Applicant's case did not disclose an arguable case. 14 What is presently before the Court is a notice of motion filed 2 December 2005 in which the Applicant seeks relief in respect of the decision of Emmett J and orders quashing the decision of the Tribunal so as to allow the Applicant to stay in Australia permanently, amongst other relief. In support of that motion the Applicant relies upon his affidavit sworn 2 December 2005 which raises no specific matter indicating that the judgment of Emmett J was attended with sufficient doubt as to warrant its reconsideration. 15 The Applicant also relied upon a draft notice of appeal filed 2 December 2005 which specified a number of grounds upon which the Applicant would wish to rely were his application presently before the Court granted. The grounds in the draft notice of appeal once again rehash the case which the Applicant advanced before the Tribunal and which failed. In his submissions to me the Applicant, who appears in person with the assistance of an interpreter, indicated that he wanted the Court to give him another chance before the Tribunal. 16 Whilst the notice of motion does not in terms seek appropriate relief, I have, with the consent of the Minister and the Commonwealth, dealt with the matter as if it were an application for an extension of time within which to bring an application for leave to appeal from the judgment of Emmett J and as an application for such leave to appeal. For a grant of leave to appeal to be made it is necessary for the Applicant to establish that the decision of Emmett J for an application for an order nisi was attended with sufficient doubt to warrant its reconsideration and that substantial injustice would result if leave to appeal were refused. 17 In my opinion, the Applicant has not put anything to the Court which suggests that Emmett J erred in his consideration of the application for an order nisi and accordingly, the application for leave to appeal should be dismissed. 18 I should add that in the course of his submissions, the Applicant suggested that a letter sent to him by the District Registrar of the Federal Court on 12 November 2004, which invited him to make written submissions on the question of whether there was an arguable case for the grant of the relief claimed by the draft order nisi, had not been received by him. 19 In my opinion non-receipt of such a letter could not affect the decision reached by his Honour, who properly considered the material which had been advanced as a basis for the grant of an order nisi in the terms which the Applicant sought. Were there to be any doubt about the matter, I should indicate that nothing has been submitted to me by the Applicant which would cause me to have any doubt as to the correctness of the decision of Emmett J on the question of whether or not an order nisi should have been granted. 20 In the circumstances, the application should be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham . Associate: Dated: 13 March 2006 Counsel for the Applicant: The Applicant appeared in person. Solicitor for the Respondent: A Marcus of the Australian Government Solicitor Date of Hearing: 14 February 2006 Date of Judgment: 14 February 2006