FEDERAL COURT OF AUSTRALIA

Applicant S208 of 2003 v Refugee Review Tribunal [2005] FCA 1563

APPLICANT S208 OF 2003 V REFUGEE REVIEW TRIBUNAL & ORS

NSD 991 OF 2003

BENNETT J

4 NOVEMBER 2005

SYDNEY

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1. Subrule (1) of Order 51A rule 5 not apply to this application.
2. The application for an order nisi be refused.
3. The applicant pay the respondents’ costs.

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

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     The High Court has remitted to this Court an application for an order nisi requiring the respondents to show cause why constitutional writs should not be issued in respect of a decision of the Refugee Review Tribunal handed down on 15 January 1999.  The Tribunal affirmed a decision of a delegate of the first respondent, refusing the applicant, a citizen of Bangladesh, a protection visa.

2                     To obtain an order nisi an applicant must show that he or she has at least an arguable case that the Tribunal, whose proceedings are called into question, has erred in a manner that would justify final relief by way of an order absolute.

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

4                     The applicant alleges that the Tribunal ‘failed to appreciate that the political opinion is an essential element in considering the fear of serious harm amount to persecution.’  There is no factual basis to this assertion.  The Tribunal clearly acknowledged that persecution for reason of political opinion was a Convention reason.  It concluded that it was not satisfied ‘that the applicant has a well founded fear of persecution for reasons of his political opinion if he returned to Bangladesh.’

5                     The applicant complains that the Tribunal did not taken into consideration material ‘in support of [his] claims’, in particular an article published on 2 February 1998 in The New Nation entitled ‘the ‘US Report on Human Rights situation in Bangladesh’.  It has not been established that this document was before the Tribunal.  It was exhibited to the applicant’s affidavit filed in the High Court.  No reason is given why the Tribunal should have referred to it other than an assertion that it is “favourable to my claims.”  In its reasons the Tribunal specifically addressed newspaper articles submitted by the applicant.

6                     The applicant appears to accuse the Tribunal of actual or imputed bias based on his allegation that the Tribunal did not take into consideration ‘those materials in support of [his] claims.’  Apart from asserting that the Tribunal failed to conduct an appropriate investigation into the material he placed before the Tribunal, the appellant does not provide any further particulars.  There was no obligation on the part of the Tribunal to make any inquiries on behalf of the appellant or to make his case for him.  There is nothing which supports the assertion that the Tribunal member approached the appellant's case with a closed mind.

7                     The applicant contends that the Tribunal did not give him an opportunity to respond to adverse material in possession of the Tribunal, namely the Part B documents listed in the decision of the delegate (‘the Part B documents’).  The Part B documents comprise Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 379, the Departmental file relating to the applicant, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and a text book by J.C. Hathaway entitled ‘The Law of Refugee Status.’  

8                     Apart from the Departmental file relating to the applicant, the Part B documents are not adverse information that is personal to the applicant and accordingly s424A(1) of the Migration Act 1958 (Cth) does not apply.  The Departmental file relating to the applicant consists of information given by the applicant for the purposes of the application and therefore falls into the exception in s424A(3)(b).  The Tribunal was under no obligation to give the applicant particulars of the Part B documents and to invite him to comment on them.

9                     The applicant also complains that he was denied procedural fairness by the Tribunal by virtue of a finding of fact of the Tribunal.  In particular he argues that there was no concrete basis to the Tribunal’s conclusion that a certain document, which he had submitted to the Tribunal was false.  The Tribunal made the following finding in regards to the English newspaper article in The New Nation City of 23 February 1997;

‘The Tribunal is unable to accept this article as evidence of the alleged attack on the house of the applicant.  Furthermore the Tribunal considers that the article has been fabricated to bolster the applicant’s claims.  The article appears one year after the claimed attack, yet it refers to a recent attack.  It refers to a police entry of February 1997, again one year after the alleged attack.  It refers to the applicant as ex vice President of the BNP in Dhanmondi, yet the applicant did not claim to be a vice president or to have held any positions in the BNP from 1990 onwards.  The typeface of the article does not fit with the rest of the paper.  The article was not submitted to the Department although it was published before he made his application for a protection visa.’

10                  The Tribunal’s findings regarding that article were open to it on the evidence.  There is no basis for a finding that the applicant had been denied procedural fairness.  No error is established.

11                  Generally the grounds raised by the applicant amount to a complaint about the factual findings by the Tribunal and seek merits review, in particular, of the Tribunal’s findings on the genuineness of the documents given by the applicant to the Tribunal in support of his claims.  That does not form jurisdictional error.

12                  On the material before me, the applicant has not made out an arguable case that the Tribunal has committed a jurisdictional error.  Accordingly it would be inappropriate to grant an order nisi.  I propose to order that subrule (1) of Order 51A rule 5 not apply to this case and that the application for an order nisi be refused.

Associate:

Dated:              4 November 2005