S222 of 2003 v Refugee Review Tribunal

b. The finding that it is not satisfied that the applicant faces a real chance of Convention related persecution in Bangladesh and he is not a refugee and that he is not a person to whom Australia has protection obligations under the Convention and therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa and the consequential satisfaction were not formed by a correct application of the applicable law hence the necessary opinion does not exist;

c. The Tribunal had no jurisdiction to make the said decision because its 'reasonable satisfaction' was not arrived in accordance with the requirements of the Migration Act;

d. The Tribunal exceeded its jurisdiction in making its decision to affirm the Respondent's decision;

e. The Tribunal Constructively failed to exercise its jurisdiction in arriving at its decision;

f. The Tribunal Member consciously choosing to ignore the material in support of my claims as no significant and/or less significant, therefore the Tribunal's said decision was not based on all the materials before it and failed in its duty;

g. The Tribunal Member failed to appreciate that the 'political opinion' is an essential element in considering the fear of serious harm amounting to persecution of me to return to my country of origin i.e. Bangladesh during the present time due to the unchanged situation not safe for me to return to Bangladesh;

h. The Tribunal member having formed certain ventilating views against me and rejected my claims due to the delegate's decision based on certain incorrect information and wrongful reasoning;

i. The Tribunal Member because of the ventilating views induced by bias ought not to be carry with a practical certainty of considering all the materials readily available and / or accessible and the Member continued an erroneous approach to my claims and failed to address his mind to the material questions arising out of those materials in support of my claims for protection in Australia;

j. The Tribunal Member did not make aware of, and given opportunity to me to respond to adverse materials in possession of the Tribunal so that I was handicapped to present my case in such a way as to meet those issues arising out of those adverse materials;

k. If I would have been given an opportunity to submit my explanations and materials in reply to the alleged adverse materials it could have led to a different decision by the Tribunal, therefore there is a jurisdictional error;

l. The Tribunal failed to perform the duty imposed on it by the Migration Act (section 425 (1)) to decide my case on the materials put to it and by conducting an appropriate enquiry there on;

m. The said decision of the Tribunal was made by the Tribunal was not a bona fide attempt to act in the Tribunal's authority;

n. The Tribunal by denying the opportunity to me to submit my explanations and materials in reply to the alleged adverse materials the Tribunal had not fully listened to my claims and explanations I wish to put, thereby the Tribunal declined to exercise its jurisdiction and failed in its duty;

o. I am entitled to a Protection Visa, which I have applied; and

p. I have a well founded fear of persecution in the country of nationality i.e. Bangladesh.

q. I state the decision of the First Respondent to affirm the decision of the delegate refusing me the grant of the protection visa is invalid. 5 The affidavit asserts that the Tribunal, before making its decision, failed to make the applicant aware of, and give the applicant an opportunity to respond to, adverse material in the possession of the Tribunal categorised by the Minister's delegate as 'the Part B Documents' in the delegate's decision of 9 October 1999, which is annexed to the affidavit. 6 The delegate's decision record is annexed to the affidavit. Part B of the decision record contains a statement of the evidence before the delegate, which consisted of the Departmental file and eight other documents, none of which appears to be concerned specifically with the applicant but with the situation in Bangladesh generally and texts on refugee status. No other particulars are provided of the grounds of complaint. In particular, no information is given as to any material adverse to the applicant contained in the Part B documents or the response that the applicant might have made to that material. 7 The decision of the Tribunal is also annexed to the affidavit. The Tribunal member reached its decision to affirm the delegate's decision on the grounds of credibility, without the need to refer to the adverse country information to which the applicant refers. 8 On an application such as this, for orders requiring the respondents to show cause why final relief should not be granted, the purpose of any affidavit in support is to provide material showing that there is at least an arguable case for the grant of the final relief claimed. However, the material must be more than mere pleading or assertion of the right to such relief. The material must contain some evidence of facts that would support the grant of the relief claimed. In the context of the relief claimed by the present applicant, there should be material that would show that it is at least arguable that the Tribunal fell into jurisdictional error in making the Decision, such that orders would be made to quash the Decision and to restrain the Minister from acting on the Decision. The material presently before the Court does not disclose an arguable case, in that sense.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.