Huq v Minister for Immigration and Multicultural Affairs

[1999] FCA 331

FEDERAL COURT OF AUSTRALIA

Huq v Minister for Immigration & Multicultural Affairs [1999] FCA 331

MIGRATION – review of decision of Refugee Review Tribunal – duty of court where applicant not legally assisted – circumstances in which it was appropriate to make no costs order when dismissing application.

Gidaro v Secretary, Department of Social Security (1998) 50 ALD 173 at 179-180

MONZURUL HUQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1368 of 1998

Burchett J

19 March 1999
Sydney

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1368 of 1998

BETWEEN:	MONZURUL HUQ Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	BURCHETT J
DATE OF ORDER:	19 MARCH 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.There be no order as to costs.

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	NG 1368 of 1998

BETWEEN:	MONZURUL HUQ Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	BURCHETT J
DATE:	19 MARCH 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter the applicant seeks review of a decision of the Refugee Review Tribunal made, on 16 November 1998, in respect of his application for review of an earlier refusal to grant him a Protection Visa.  He claims to be a refugee from Bangladesh.

2. The question on which the decision of the Tribunal turned was whether the applicant came within the well-known terms of the Convention relating to the Status of Refugees as being a person who, owing to well-founded fear of being persecuted for reasons of political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country.

3. Under the legislation, my function is to review the decision for error of law, not fact, and even within the category of errors of law I am only entitled to have regard to a restricted range of errors of that kind.  In other words, the decision of the facts of an application of this sort is for the Tribunal, subject only to an unusually limited form of review.

4. In the present case, it is clear from a reading of the reasons of the Tribunal that it decided against the applicant because it did not accept that, in reality, he had any well-founded fear of the required kind.  The applicant was not assisted by legal representation.  He has utilised the services of an interpreter, but he is obviously unable to analyse the legal issues in any sophisticated way.  I have examined the material put before me with some care, and have discussed it with counsel for the respondent in a manner that travels beyond any issue expressly raised by the applicant.  The authorities dealing with the attitude that a court should take when a party is not legally represented do, I think, both justify and require that a court should take this attitude, and should check to see whether the case raises issues which have not been articulated as they would have been had the party been legally represented:  Gidaro v Secretary, Department of Social Security (1998) 50 ALD 173 at 179-180. No significant issue of law has been uncovered by that process. Details of the reasoning of the Tribunal are open to attack; but those particular matters all relate to factual reasoning, and furthermore they do not, I think, go to the essential basis of the rejection of the applicant's case.

5. A decision of this kind must be read in substance, and considered, not by a pedantic examination of technicalities, but rather by an attempt to perceive the essence of what the administrative tribunal was trying to say, and in order to reach a conclusion as to whether its view was open to it.  Of course, if a decision which was open is only reached by way of some subsidiary error of law, that may be a ground for rejecting it.  But in this case, it seems to me the decision is grounded substantially on the proposition that the applicant's evidence was not acceptable in the view of the Tribunal.  Underlying that view, formed on an examination of the whole of the material, was plainly the fact that most of the applicant's complaints were rather generalised, and that the central complaint related to an event some years ago.  That central complaint concerned an incident which was alleged to have led to the issue on 10 May 1993 of a warrant for the applicant's arrest.  However, following the issue of the warrant, the applicant was able to continue to operate a taxi business, and to live, not only in Bangladesh, but close to where he had been living at the time of the issue of the warrant.  It was over two years later, according to the findings of the Tribunal, that he sold his business.  In my opinion, the conclusion of the Tribunal was in those circumstances open to it, and that conclusion was a conclusion of fact.  I am unable to find any error of law that vitiated it.

6. For these reasons, the application will be dismissed.

7. As to the question of costs, it seems to me, for reasons which it is unnecessary to elaborate now because they were exposed in the course of discussion with counsel during counsel's submissions, there were features of the consideration of this matter by the Tribunal which, while not sufficient in my judgment to enable me to come to the conclusion that the decision was vitiated by error of law, nevertheless were sufficient to lead me to the conclusion to which I have come, that the applicant did not act unreasonably, but on the contrary acted quite reasonably, bearing in mind that he is a layman from a foreign country, in having that decision reviewed.  Since his conduct was reasonable, and was contributed to by the manner in which the Tribunal expressed itself, and having regard also to the role of the Tribunal and the court in the processes which have been set up, at least in part and perhaps in large part, in order to comply with the international obligations Australia has accepted, in all the circumstances, I think the correct exercise of my discretion in this particular case is to order that there be no order as to costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett.

Associate:

Dated:             19 March 1999

The applicant appeared in person
Counsel for the Respondent:	V Hartstein with S McNaughton
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 March 1999
Date of Judgment:	19 March 1999