NABC v Minister for Immigration

[2003] FMCA 88

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NABC v MINISTER FOR IMMIGRATION [2003] FMCA 88

MIGRATION – Review of Refugee Review Tribunal decision affirming a delegate’s refusal of a protection visa – allegations of political oppression in Bangladesh – whether the RRT properly considered the claims – whether the RRT proceedings were procedurally fair – whether the RRT acted bona fide – grounds of review lacking substance.

Migration Act 1958 (Cth), ss.420(2)(b), 474

Applicant: NABC

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1089 of 2002

Delivered on: 14 March 2003

Delivered at: Sydney

Hearing date: 14 March 2003

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed at $3,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1089 of 2002

NABC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This ex tempore judgment relates to an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 7 August 2002 and handed down on 29 August 2002. The RRT affirmed a decision of a delegate of the respondent Minister not to grant the applicant a protection visa.  The background facts relating to the application are accurately set out in paragraphs 1 to 5 of the written submissions prepared on behalf of the respondent Minister by Mr Reilly. 

2. The applicant, in his application filed on 25 September 2002, alleges that the RRT failed to articulate the material facts of his claim.  He asserts that the RRT also failed to consider what he describes as present political oppression by the BNP coalition in Bangladesh.  He also makes a factual assertion about the Awami League in Bangladesh and asserts procedural unfairness.  He says in paragraph 4 of his application that the RRT did not give him an opportunity to make comments on information before the RRT.

3. The applicant has also filed written submissions in support of his application on 10 March 2003. In those submissions, he asserts that the RRT did not give proper consideration to the factual material put forward by him or that it did not properly analyse the information available to the RRT. He asserts a breach of s.420(2)(b) of the Migration Act 1958 (Cth) (“the Migration Act”) and also alleges that the RRT did not act in a bona fide manner.

4. There is no substance to any of these assertions by the applicant.  As was pointed out by Mr Reilly in his oral submissions, the applicant was sent on 24 June 2002 a letter by the RRT.  In that letter it was made clear to the applicant that the RRT would not make a favourable decision on his application on the basis of the material he had put before it.  The applicant was invited to attend before the RRT and make further submissions, but he did not do so.  Neither did he offer any explanation for his failure to attend. 

5. I am satisfied that the proceedings before the RRT were fair. The decision of the RRT was clearly a bona fide attempt to exercise the powers conferred on the RRT. The decision of the RRT clearly related to the subject matter of the Migration Act and to the decision making powers conferred on the RRT. There is no jurisdictional error apparent in the decision and reasons of the RRT.

6. The submissions made orally by the applicant today were simply a call for the Court to review the decision of the RRT on the merits.  Finally, the applicant asked that the matter be returned to the RRT so that he could, in effect, mount a better case for a protection visa.  As I explained to the applicant, the Court cannot review the RRT decision from its merits.  There is no basis upon which the Court could remit the RRT decision to the RRT for a further hearing.

7. In the absence of any jurisdictional error and on the basis that the Hickman provisos are satisfied, the RRT decision is protected by the privative clause in s.474 of the Migration Act. I will dismiss the application.

8. Mr Reilly has sought an order for costs fixed in the sum of $3,300.  The Minister has been wholly successful in the proceedings and is entitled to an order for costs.  The sum of $3,300, based upon the amount of preparation that was required in this matter and also on the basis that the Minister was properly represented by counsel today, is an appropriate figure.  I will, therefore, order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,300.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  21 March 2003