FEDERAL COURT OF AUSTRALIA

Applicant S301 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1352

APPLICANT S301 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

N 2452 of 2003

JACOBSON J

29 SEPTEMBER 2005

SYDNEY

THE COURT ORDERS THAT:

1.          The application for an order nisi is dismissed.

2.          The applicant is to pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1.                       On 9 July 1999, the Refugee Review Tribunal (“RRT”) affirmed a decision made by the respondent not to grant the applicant a protection visa under the Migration Act 1958 (Cth).

2.                       The applicant filed an application for order nisi in the High Court of Australia on 16 June 2003 seeking the issue of constitutional writs.  The application was remitted to this Court pursuant to orders made by Gaudron J, as varied by McHugh J, following the    delivery of judgment in Muin v The Refugee Review Tribunal (2002) 76 ALJR 966 (“Muin”).

3.                       By correspondence dated 12 November 2004, the District Registrar of the Court advised the applicant that the court proposed to consider whether there is an arguable case for the making of an order nisi on the basis of the written material before the court.  The applicant was invited to file written submissions and did so on 9 December 2004.

4.                       I propose to deal with this application on the papers.

Background

5.                       The applicant is a citizen of Bangladesh.  He claims a well founded fear of persecution because he was a political activist involved in the Bangladesh Nationalist Party (“BNP”), and targeted by the Awami League. 

6.                       In its reasons for decision, the RRT found that any chance the applicant would face persecution for a Convention reason if he returned to Bangladesh was remote and insubstantial.  The RRT viewed the applicant’s evidence as vague, confused and internally inconsistent.  It did not accept the applicant as truthful, and this lack of credibility, as well as consideration of independent evidence lead the RRT to conclude that the applicant does not have a well-founded fear of persecution.   

Discussion

7.                       The applicant’s written submissions contend that the circumstances arising in relation to the consideration of his position by the RRT are sufficiently similar to those considered by the High Court in Muin to lead to a similar conclusion.   

8.                       However, the facts agreed in Muin upon which the decision of the High Court turned are absent in the present matter or at least have not been proved, nor has the applicant sought to prove them.  The applicant has not demonstrated a denial of procedural fairness; see NADR v Minister for Immigration & Multicultural & Indigenous Affairs  (2002) 124 FCR 465. 

9.                       I have carefully considered the applicant’s written submissions.  Though lengthy, these submissions take issue with findings of fact made by the RRT and make unparticularised allegations of error of law and denial of procedural fairness.

10.                   I have taken into account the fact that the applicant is not legally represented.  However, it is plain that there is no jurisdictional error in the decision of the RRT. 

11.                   In these circumstances, the applicant has not made out an arguable case.  The application for an order nisi must be dismissed with costs.

Associate:

Date:                29 September 2005