FEDERAL COURT OF AUSTRALIA

Applicant S226/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1674

MIGRATION – Refugee Review Tribunal – application for order nisi – no issue of principle – application dismissed

APPLICANTS S226/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & REFUGEE REVIEW TRIBUNAL & MR PETER THOMSON MEMBER OF THE REFUGEE REVIEW TRIBUNAL

NSD 1002 OF 2003

CONTI J

22 NOVEMBER 2005

SYDNEY

THE COURT ORDERS THAT:

1.                  The applicant for order nisi be dismissed.

2.                  The applicants are to pay the respondents’ costs.

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

REASONS FOR JUDGMENT

1                     The applicants are citizens of Bangladesh who arrived in Australia on 28 June 1999.  They consist of a mother and child.  The applicant mother is the only applicant who made specific claims to fear harm upon her return to Bangladesh. 

2                     On 11 August 1999 the applicants lodged an application for protection visas under the Migration Act 1958 (Cth).  A decision was made by a Ministerial delegate to reject that application on 28 June 2000, however the Refugee Review Tribunal (‘Tribunal’) declined to review that decision on the ground that the visa application was not valid.  The applicants made another application for protection visas on 19 July 2000.  That application was rejected by a Ministerial delegate, this time on 17 August 2000, which decision was affirmed by the Refugee Review Tribunal (‘the Tribunal’) on 2 July 2001 in reasons for decision that were handed down on 26 July 2001. 

3                     The applicant then apparently became associated with the proceedings in the High Court of Australia generally referred to as Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601.  On 27 May 2003 the applicant filed in the High Court of Australia a draft order nisi seeking constitutional writ relief in respect of the decision of the Tribunal, together with an affidavit in support that he had sworn.  Pursuant to orders made by Gaudron J, the proceedings were remitted to this Court.

4                     By correspondence dated 12 November 2004, the District Registrar of this 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 14 December 2004.

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

6                     The Tribunal’s reasons for decision reproduce verbatim the claims made by the applicant mother, who for ease of expression I will refer to henceforth simply as the applicant.  The applicant claimed to have been a prominent member of the Bangladesh Freedom Party and to fear harm from members of the Awami League government upon her return to Bangladesh as a result of her political affiliations.  The independent country information cited by the Tribunal in its reasons for decision indicated that the Freedom Party had a very small membership and was the subject of harassment and intimidation from the Awami League government.  According to that information, the Freedom Party was originally formed by retired military officials who had been involved in the assassination of the first president of Bangladesh, the daughter of which former president was now the leader of the Awami League government in Bangladesh. 

7                     The applicant claimed that she was the Secretary of Womens’ Affairs of the Freedom Party in the Narayan Gonj Thana community in 1996 and had since then made numerous speeches and handed out leaflets.  The applicant also claimed to have been outspoken about the Awami League government and to have been attacked by Awami League activists on numerous occasions as a result of taking this stance.  The applicant claimed that Awami League activists had, at various times, threatened her with death, raided her house on several occasions, looted her, and made abduction attempts on her as well as bringing false prosecutions against her.  Accordingly, the applicant maintained that she had been in hiding.

8                     The applicant did not attend the hearing scheduled by the Tribunal and the Tribunal proceeded to reach its decision on the strength of the applicant’s written claims and the other material before it, pursuant to s 426A of the Migration Act 1958 (Cth).  There is some confusion from the Tribunal’s reasons for decision as to what was the original hearing date allocated to the applicant; however it may be inferred that it was scheduled to take place sometime in early to mid-May 2001.  On 7 May 2001 the applicant’s advisor requested an adjournment owing to the recent death of the applicant’s husband.  The Tribunal appointed 5 June 2001 as the new hearing date at the applicant’s request.  On 31 May 2001 the applicant’s advisor requested a further adjournment of several months and provided the Tribunal with a copy of a psychologist’s report in relation to the applicant.  On 4 June 2001, the Tribunal informed the applicant’s advisor by facsimile and by telephone message that the hearing would not be rescheduled, since it was not satisfied from the psychologist’s report that the applicant was mentally unfit to give evidence.  According to the summary provided by the Tribunal in its reasons for decision, the psychologist’s report did not state that the applicant was unfit to give evidence, but only that the applicant felt that she would be best able to overcome her grief and anxiety if she was permitted to remain in Australia.  The Tribunal explained in its reasons for judgment that in the absence of evidence of unfitness, it had not been prepared to adjourn the hearing for a second time.

9                     In those circumstances there is nothing improper in the Tribunal proceeding in accordance with s 426A to make its decision on review without taking any action to enable the applicant to appear before it.  There is nothing to suggest that the notice given by the Tribunal to the applicant of the re-scheduled hearing was insufficient, see SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1026.  As was the case in NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [35]-[37] (per Ryan, French and R D Nicholson JJ), the Tribunal required of the applicant’s advisor some evidence to support the request for adjournment.  Since no such evidence was forthcoming, it was appropriate for the Tribunal to make its decision in the absence of oral submissions from the applicant and doing so did not derogate from the Tribunal’s obligations under the Act to provide an ‘invitation’ to the hearing.

10                  The Tribunal outlined the questions that it would have asked the applicant were she to have attended the hearing.  Those questions concerned her role within the Freedom Party, and her stated fears, in particular, the Tribunal wanted to ask the applicant why, if she had been in hiding from the Awami League for a period of years, she had continued to live in the same residence from 1990 until her departure from Bangladesh.  In the absence of more detailed information or documentary evidence in support of her claims, the applicant was not satisfied that the applicant had suffered persecution from Awami League activists as she had claimed. 

11                  The draft order nisi filed by the applicants purports to articulate numerous grounds for the constitutional writ relief sought, as do the written submissions filed by the applicants in support of the application.  Although some of the grounds formulated amount to the assertion of a recognised head of jurisdictional error, namely the assertion that the Tribunal deprived the applicant of procedural fairness, those grounds are unarguably doomed to fail.  The majority of those asserted grounds lack any particularisation at all, and the limited particularisation that is provided in respect of the remainder of the grounds is completely inapplicable to the factual circumstances pertaining to the applicants and the Tribunal’s decision.  In the context of the relief claimed by the present applicants, there is no material that would show that it is at least arguable that the Tribunal fell into jurisdictional error in making its decision, such that orders ought to be made to quash the decision and to restrain the Minister from acting on it.

12                  The material before me does not therefore disclose any basis on which I could reasonably conclude there is at least an arguable case for the grant of constitutional writ relief.  The application is dismissed and I order the applicants to pay the respondents’ costs.

Associate:

Dated:              22 November 2005