FEDERAL COURT OF AUSTRALIA Applicant S301/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 909 APPLICANT S301/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ORS NSD 2025 OF 2005 ALLSOP J 20 JULY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2025 of 2005 BETWEEN: APPLICANT S301/2003 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT KIM ROSSER, MEMBER OF THE REFUGEE REVIEW TRIBUNAL FOURTH RESPONDENT JUDGE: ALLSOP J DATE OF ORDER: 20 JULY 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Time be extended for the filing of the application for leave to appeal up to and including 25 October 2005. 2. Leave to appeal be granted against the orders of the Court made on 29 September 2005. 3. The costs of the application for leave to appeal be costs in the appeal. 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 2025 of 2005 BETWEEN: APPLICANT S301/2003 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT KIM ROSSER, MEMBER OF THE REFUGEE REVIEW TRIBUNAL FOURTH RESPONDENT JUDGE: ALLSOP J DATE: 20 JULY 2006 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application for leave to appeal from orders made by a Judge of the Court dismissing an application for an order nisi. 2 The draft order nisi was originally remitted by the High Court of Australia. The grounds stated in the draft order nisi contained seven assertions of error without any detail giving life or content to the legal conclusory assertions. The grounds were: a) the third respondent did not follow the proper procedure as required by the Migration Act 1958. Thus, the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed. b) the third respondent's decision was affected by an 'error of law' and 'Jurisdictional error' and lack of procedural fairness. c) there was NO evidence or other material to justify in making of the decision. d) the applicant was denied natural justice in being denied a reasonable opportunity to be heard on his application before the first respondent. e) there has been a constructive failure of jurisdiction by the first respondent's decision of 24 July 1997, failed to address the correct legal question committed to him by not applying himself to all of those issues he was required to consider in determining the matter before him. f) There was a failure of the first respondent's agent to exercise his jurisdiction in the decision of 24 July 1997 because he did not reach a state of satisfaction bases upon a correct understanding of the law on which he acts. g) the decision of the first respondent's agent of 24 July 1997 was made in breach of rules of natural justice. 3 After the matter was remitted to this Court, the applicant filed submissions in support of his application. The submissions made various assertions of legal error of the Refugee Review Tribunal (the 'Tribunal') and took significant issue with the factual findings of the Tribunal. The primary judge was unable to discover any legitimate argument that might found a conclusion of jurisdictional error. 4 The applicant is a Bangladeshi man whose evidence was disbelieved by the Tribunal. The Tribunal stated: Mr[A301]'s evidence in relation to a number of aspects of his claims was vague, confused and internally inconsistent. I do not accept that he was truthful in giving evidence before the Tribunal. The lack of credibility of Mr [A301]'s evidence, as well as my consideration of the independent evidence set out above, leads me to conclude that I cannot be satisfied that Mr [A301] has a well-founded fear of persecution. My reasons for this follow. 5 Part of the reasons why the Tribunal disbelieved the applicant was a comparison between what he told the delegate and what he told the Tribunal. The reasons of the Tribunal disclose the following: Whilst I accept that Mr [A301] was involved with the BNP student wing (that is, the Jatiyatabadi Chhatra Dal) when he was a student, I cannot be satisfied that he was ever a member of either the youth wing of the organisation the Jatiyatabadi Jubo Dal or JBD) or the main BNP organisation. Mr [A301] was specifically questioned in relation to this when he was interviewed by the delegate. On that occasion, Mr [A301] clearly stated that he was not a member of the BNP and had not joined its youth wing. I do not accept that Mr [A301] thought he was being asked whether he was a member of the BNP's governing committee. Nor do I accept that the delegate misunderstood Mr [A301]. In relation to this, there is no suggestion that Mr [A301] misunderstood other questions asked by the delegate. Further, membership of the BNP is quite different from membership of the BNP's governing committee. … Given that Mr [A301]'s statements in relation to this issue made at the departmental interview are entirely inconsistent with his evidence at the hearing, I am unable to be satisfied that he was in fact a member of the BNP. 6 There was also a finding of document fraud against the applicant. I note the document provided by Mr [A301] that purports to be from the secretary-general of the BNP, in which it states that Mr [A301] was a dedicated BNP worker. I do not accept that this letter constitutes evidence that Mr [A301] was in fact a member of the BNP, or that he is at any risk in Bangladesh. As noted above, the independent evidence clearly indicates that there is a very high level of fraudulent documents provided by Bangladeshi asylum seekers. In view of the high level of fraudulent documents provided by Bangladeshi asylum seekers, I cannot accept the letter provided by Mr [A301] as evidence that he is a member of the BNP. 7 Later in its reasons the Tribunal also found his oral evidence to be inconsistent with his earlier statement given to the Department in support of his claims. 8 Amongst the plethora of submissions put by the applicant personally to the primary judge was one that the Tribunal failed to comply with "section 424(A)(b)". This could be taken to be a reference to s 424A(1)(b) or (3)(b) of the Migration Act 1958 (Cth) (the 'Act'). Though, it should be said that the specific submissions about this section was less than clear: I believe that the minister's delegate unnecessarily raised various personal issues and tried to bypass the reality, facts, and evidences, on which the tribunal and the FCA directly or indirectly depended. This constitutes a breach of section, 424-(a)(b) of the Act. 9 The applicant in his submission said that he was misled by the letter from the Tribunal of the character dealt with in the Muin and Lie cases. 10 The applicant's submission included a statement that he wished to supplement this summary with oral argument. 11 The primary judge dealt with the application on the papers without a hearing. 12 On 4 November 1999 Hely J had dismissed the applicant's application for judicial review under the then s 476 of the Act. It is not apparent that the primary judge was aware of this. The regime under s 476 excluded, as a ground of review, an assertion of a breach of the rules of natural justice: s 476(2)(a) of the Act in its then form. 13 One ground of the application for leave to appeal was that the applicant was denied oral argument. That was, however, later abandoned by solicitors who later had the conduct of the application for leave to appeal. 14 A draft amended application for an order nisi was filed on 23 December 2005 (after the primary judge's dismissal of the original application). This was done pursuant to directions in order that the grounds of argument of the applicant, as explained with the assistance of lawyers, could be more readily understood. That document identified a number of grounds of complaint: · contraventions of s 424A of the Act · a misunderstanding of the Convention · a failure to consider a claim of the applicant · a failure to apply the "real chance" test. 15 No claim was made based on an asserted denial of procedural fairness. 16 The respondent Minister submitted that the primary judge was correct to dismiss the application that was before him and on the materials before him and she also dealt with the grounds raised in the draft amended application. 17 I am exercising the appellate jurisdiction of the Court in considering whether leave to appeal should be given. I called for specific assistance from the parties as to whether there was an arguable issue as to whether his Honour erred in refusing an oral hearing to the applicant. The first respondent said that the power to deal with Order 51A rule 5 in chambers by s 17(2) of the Federal Court of Australia Act 1976 supported the approach that his Honour took. References were also made to SZCRP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1775; but cf NBGI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 233 at [13], [16] and [18]. The point was however, as I have said, not pressed. 18 As submissions developed and the legal representatives of the applicant became aware of the history of the matter they placed no reliance upon matters referred to in the second and fourth bullet points at [14] above. Thus, the applicant through his legal advisors no longer pressed that the primary judge had fallen into error in failing to ascertain the existence of a legitimate point based upon the misunderstanding of the Convention or the failure to apply the real chance test. What was left was the asserted failure by the primary judge to ascertain that there were particular grounds which could support a claim for jurisdictional error based s 424A of the Act and the failure to deal with all the applicant's claims. 19 The matter is not without its complexity and difficulty. It is not clear that s 424A was not raised before the primary judge, even if elliptically, by the applicant. Further, there is an issue as to whether or not, in the light of the fact that the applicant was unrepresented, the primary judge erred by failing to appreciate in reading the reasons of the Tribunal that s 424A may apply. Issues of res judicata would also arise. This issue was not considered by Hely J and difficult issues may arise as to the appropriate framework of analysis for such issues if properly ventilated. See Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [36] - [39]. 20 Involved in the consideration of these matters (at least on the submission of the respondent) is the proper approach to an application for an order nisi and the proper approach to an application for leave after a dismissal of such an application when fresh grounds are raised which were not directly relied upon in the earlier application. If the application had not been dismissed and had been dealt with in full as a substantive application there would have been an opportunity to amend the order nisi. As it was, the application was dealt with under Order 51A rule 5(2). 21 In my view, there is a serious question as to whether or not the primary judge should have appreciated the existence of a possible claim under s 424A of the Act. This issue, together with the other matters raised and continued to be relied on in the application for leave, in my view warrant the granting of leave to appeal. 22 For the avoidance of doubt it should be recognised that I have treated the draft amended application for an order nisi as no more than a document filed in the course of the application for leave to appeal in the appellate jurisdiction to clarify the basis upon which the applicant would complain about the decision of the Tribunal if permitted to do so. The original application was dismissed by the primary judge. 23 The orders are as follows: 1. Time be extended for the filing of the application for leave to appeal up to and including 25 October 2005 2. Leave be granted to appeal against the orders of the Court made on 29 September 2005. 3. The costs of the application for leave to appeal be costs in the appeal. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 20 July 2006 Solicitor for the Applicant: Parish Patience Immigration Lawyers Solicitor for the Respondent: Australian Government Solicitor The matter was dealt with on the papers with the consent of the parties. Last submission filed: 10 April 2006 Date of Judgment: 20 July 2006