NAAM v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAAM & ANOR v MINISTER FOR IMMIGRATION [2003] FMCA 55

MIGRATION – Review of Refugee Review Tribunal decision affirming a delegate’s refusal of a protection visa – procedural fairness – whether decision unfairly based upon information arising after the RRT hearing and not disclosed to the applicants – whether there was in fact any unfairness – whether any evidence of what the applicants would have done if put on notice about the information – no reviewable error found.

PRACTICE AND PROCEDURE – Whether the Federal Magistrates Court has jurisdiction to deal with a purported decision under the Migration Act.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Commonwealth Constitution, s.75(v)
Federal Magistrates Act 1999 (Cth), s.18
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 474, 483A

Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2
Re Minister for Immigration; ex parte “A” (2002) 185 ALR 489
Re Minister for Immigration; ex parte Lam [2003] HCA 6
Stead v SGIO (1986) 161 CLR 141

First Applicant:

Second Applicant:

NAAM

NAAN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ976 of 2002

Delivered on: 26 March 2003

Delivered at: Sydney

Hearing date: 27 February 2003

Judgment of: Driver FM

REPRESENTATION

Counsel for the Applicants: Mr D Ash

Counsel for the Respondent: Mr S Lloyd

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed at $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ976 of 2002

NAAM

First Applicant

NAAN

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 21 August 2002.  The RRT affirmed a decision of a delegate of the respondent not to grant the applicants a protection visa.  The applicants challenge the decision of the RRT on the basis that the RRT breached the rules of procedural fairness in making its decision two and a half years after the hearing, taking into account country information current as at 2002, which was not available at the time of the hearing, which the applicants were not given the opportunity to comment upon and which was adverse to their interests. 

2. The applicants are citizens of Ukraine who arrived in Australia on 10 May 1996.  On the same day they each lodged an application for a protection visa, which was refused by a delegate of the Minister on 10 February 1998.  They applied on 12 February 1998 for a review of those decisions before the RRT.  The applicants claim to have suffered harm as a result of their imputed political opinion and membership of a particular social group, constituted by the family of the applicant NAAM’s father.  The father was a member of the RUKH party in Ukraine.  These claims were accepted. 

3. The presiding member found that…