Protection Visa Claim Denied Due to Insufficient Evidence

FEDERAL COURT OF AUSTRALIA

Applicant S454 of 2003 v Refugee Review Tribunal [2004] FCA 1355 APPLICANT S454 OF 2003 v REFUGEE REVIEW TRIBUNAL & ORS N 2537 OF 2003 [NAME] 9 FEBRUARY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 2537 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN: APPLICANT S454 OF 2003

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

SECRETARY OF THE DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA

THIRD RESPONDENT

JUDGE: [NAME] OF ORDER: 9 FEBRUARY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the application for an order nisi be refused. 2. The effect of that refusal be stayed for 21 days. 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 N 2537 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN: APPLICANT S454 OF 2003

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA

THIRD RESPONDENT

JUDGE: [NAME]: 9 FEBRUARY 2004

PLACE: SYDNEY

REASONS FOR

JUDGMENT 1 On 13 August 2003 the applicant lodged a draft order nisiand affidavit in support sworn on 12 August 2003 in the High Court of Australia. The proceeding was commenced for prerogative writ relief in respect of a decision of the Refugee Review Tribunal ('the Tribunal') of 25 June 2001 affirming a decision not to grant a protection visa to the applicant under the Migration Act 1958 (Cth) ('the Act'). The matter was remitted to this Court by Heydon J on 12 November 2003. 2 The affidavit as filed of itself discloses no ground that would support the claim for relief. The affidavit asserts that the Tribunal failed to take into consideration that the applicant was in danger and that he would be in danger of being persecuted, tortured and killed if he returned to Indonesia. Otherwise the affidavit challenged factual findings made by the Tribunal. It also asserted that the Tribunal did not have enough information in its documents in relation to the applicant's case. 3 The reasons for the Tribunal's decision, a copy of which was tendered on behalf of the Minister because it was not otherwise in evidence, indicates generally that the Tribunal had reservations about the applicant's credibility. The Tribunal did not find the applicant an impressive witness and formed the impression that he was prepared to say anything that he considered would assist his case. Those observations appear to relate to the evidence by the applicant as to his own circumstances, not the position in Indonesia generally. 4 On that basis, the affidavit does not disclose any ground upon which any prerogative writ relief could be granted. Therefore, it seems to be appropriate to refuse an order nisi. However, I was informed by the applicant that he has been given the assistance of legal aid in relation to the application but has not yet received any advice. Rather than deprive him of the opportunity of getting advice that might indicate that there is a basis for review of the decision, I will stay the operation of the order refusing an order nisi for 21 days. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME].

Associate: Dated: 20 October 2004

The applicant appeared in person

Solicitor for the Respondent: [redacted]

Date of Hearing: 9 February 2004

Date of Judgment: 9 February 2004