Hossain v Minister for Immigration and Multicultural Affairs

[2000] FCA 287

FEDERAL COURT OF AUSTRALIA

Hossain v Minister for Immigration & Multicultural Affairs [2000] FCA 287

MOHAMMED SAPAN HOSSAIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1412 of 1999

BURCHETT J
6 MARCH 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1412 of 1999

BETWEEN:	MOHAMMED SAPAN HOSSAIN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	BURCHETT J
DATE:	6 MARCH 2000
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application for the very limited form of review available in respect of a decision of the Refugee Review Tribunal.  “While limited”, a joint judgment of the majority of the High Court recently stated in Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) HCA 9 at paragraph 34, “the grounds of review in s 476(1) [of the Migration Act 1958] go beyond error of law”.  But they do not go so far as to a review on the true merits of a case, to which an appeal in the ordinary judicial structure of Australia would go.

2. In the present case, the Tribunal has expressed disbelief of the applicant's claims.  Nothing in the reasons suggests that, in doing so, it has strayed outside the limits that were open to it.  There were aspects of the applicant's evidence which raised doubts, and the Tribunal has elaborated on those matters.  Upon all the evidence, it has concluded that it should reject the application made to it. 

3. In my opinion, no ground of review under s 476(1) has been shown to exist. Accordingly, the application must be dismissed.

4. The Minister seeks an order for costs.  But the material before the Court shows that the applicant was told by the Tribunal that he had “the right to seek judicial review of this decision by the Federal Court.”  The extremely limited nature of that right was not explained to him.  Although he was advised to seek legal advice, there is no doubt that legal advice, in cases of this nature, is hard to obtain, and that there are many problems confronting applicants for refugee status in the obtaining of accurate and full advice.  What the Tribunal told him was calculated to encourage an application which never had any prospect of success, because the truth of the matter, one way or the other, was not open to examination by this Court.  Of course, the existence of a power of review by the Court, even though it is very restricted, does serve some purposes in relation to the maintenance of good administration.  It does permit the correction of some kinds of error, although not the kind of error alleged by the applicant in this case.  No doubt these are reasons why Parliament chose to provide for this form of review. 

5. Having considered the particular circumstances of the present case, I exercise my discretion in favour of the applicant so far as concerns the question of costs.  I dismiss the application, but I make no order as to costs. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett.

Associate:

Dated:             15 March 2000

The applicant appeared in person, with an interpreter
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 March 2000
Date of Judgment:	6 March 2000