FEDERAL COURT OF AUSTRALIA

Applicant S1914/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 601

APPLICANT S1914/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 361 of 2005

WILCOX J

4 MAY 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed;

2.         The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

WILCOX J:

1                     This is an appeal against a decision of Federal Magistrate Mowbray given on 22 February 2005.  Pursuant to s 25(1A) of the Federal Court of Australia Act 1976, the Chief Justice has directed that the appeal be heard and determined by a single judge.

2                     The magistrate dismissed an application, made under s 39B of the Judiciary Act 1903 (Cth), by which the appellant sought to challenge a decision made by the Refugee Review Tribunal (‘the Tribunal’) on 19 February 1998.  The application for prerogative relief was not made until six years later, on 31 May 2004. 

3                     The Tribunal accepted that the appellant is a citizen of Bangladesh and of Hindu religion.  The Tribunal also accepted that the appellant had married a woman who came from a Muslim family, that the couple eloped without the knowledge of either family and lived illegally in India for some years.  However, the Tribunal did not accept the appellant’s claims as to events that allegedly occurred after he returned to Bangladesh.

4                     Because the Tribunal was unable to accept much of what the appellant had said about those events, the Tribunal did not accept that the appellant had a well‑founded fear of persecution. 

5                     The appellant has made clear to me that he strongly disagrees with the Tribunal's view about the facts of the case and with its assessment of the prospects of violence against him if he returns to Bangladesh.  However, I have pointed out to him that this Court cannot review the Tribunal's findings of fact.

6                     The learned magistrate distilled from the matters put before him by the appellant that he relied upon three grounds of arguable jurisdictional error.  In a document handed to me today, and entitled ‘Amended Notice of Appeal’, the appellant dealt with only the first of those three grounds.  However, in response to my question, he indicated that he continued to rely on the other two grounds.  The appellant did not develop those grounds or say anything about the first ground in addition to what is in the document. 

7                     The document handed to me today is better seen as a submission than an amended notice of appeal.  I will treat it accordingly.

8                     The bulk of the document is concerned with the first ground which was accurately described by the magistrate as being:

‘that the Tribunal did not accord the applicant procedural fairness, either pursuant to s 424A of the Migration Act 1958, or at common law.’

9                     The magistrate commented that it appeared the appellant alleged that the Tribunal failed to disclose to him certain country information on which, the appellant claims, the Tribunal relied.  The magistrate dealt with this ground in the following way:

‘16.      However s 424A was not in force at the time of the Tribunal’s decision and did not apply.  More importantly, in relation to common law procedural fairness, the Tribunal did not rely on any independent country information in making its decision.  This is contrary to the assertion of the applicant. 

17.       But it is clear, as I have already pointed out, that the Tribunal reached its decision because it did not believe the applicant.  As a result of the inconsistencies and implausibility of much of the evidence that the Tribunal took from the applicant, it rejected the factual claims that he had presented to it.  Accordingly there was nothing to put to the applicant for him to comment on. 

18.       As the respondent has noted, the only documents that were before the Tribunal and referred to in its decision were documents provided by the applicant in support of a claim that his wife had been physically assaulted by her brother after she refused to slaughter a cow. 

19.       This ground of review must be rejected.’ 

10                  I agree with what the magistrate said.  The reasons for decision of the Tribunal make no reference to country information.  As the magistrate said, the appellant failed before the Tribunal because the Tribunal did not believe many of his assertions. 

11                  The second ground of review was dealt with by the magistrate in the following way:

‘20.      The second ground of review appears to be based on s 418(3) of the Act.  That section, which relates to the Secretary of the Department being notified of an application for review, provides that:

The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.

21.       There is no evidence that this particular provision was not complied with.  Indeed there are no particulars in relation to it in the amended application.  The second ground also must be rejected.’

12                  As I have mentioned, no argument was put to me about this ground.  It seems to me the magistrate was plainly correct to reject it. 

13                  The third ground was described by the magistrate in the following way:

‘The third ground, and one on which the applicant relied substantially at the hearing, appeared to be that no Convention based claim was initially made to the delegate.  Therefore the visa application was invalid and the Tribunal did not have jurisdiction to review it.  This is referred to in particular 7 in the amended application.  

14                  The magistrate went on to detail the documents that were submitted by the applicant. He pointed out there was a lengthy statutory declaration expanding on the applicant's claims.

15                  It seems to me there is no substance in this ground.  However, if I am wrong in that opinion, the result would simply be that the Tribunal was correct in refusing the application for review, although for a reason that differed from the reason stated by it.  There would be no justification for this Court to intervene by granting prerogative relief. 

16                  There is no substance in any of the matters raised by the appellant. 

17                  The appeal is dismissed with costs.

Associate:

Dated:              13 May 2005