NABU v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 644

FEDERAL COURT OF AUSTRALIA

NABU v Minister for Immigration &Multicultural &Indigenous Affairs

FCA [2002] 644

NABU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N76 of 2002

WILCOX J
SYDNEY
13 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N76 of 2002

BETWEEN:	NABU APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGINOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	13 MAY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the costs of the respondent.

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	N76 of 2002

BETWEEN:	NABU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	13 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. The matter before the Court is an application for review of a decision of the Refugee Review Tribunal that was made on 21 December 2001. 

2. It is not necessary in this case to consider the effect of the changes in the law which occurred on 2 October 2001 shortly before the Tribunal's decision.  Even under the old law this application would have no chance of success.

3. The applicant has appeared in person with the assistance of an interpreter, to whom the Court is grateful.  At a directions hearing, held on 14 March last, I pointed out to the applicant that the Court's powers are very limited in cases of this nature.  In particular, I pointed out that the Court had no power to review the Tribunal's findings of fact. 

4. The applicant has mentioned on two occasions today that Australia is a country where the courts act in accordance with the law.  That is true.  The law is laid down by the Parliament, the members of which are elected by the people at free elections.  For a long time it has been the law, laid down by the Parliament, that the Court can review a decision of the Refugee Review Tribunal only on limited grounds.  The Parliament has considered it preferable for judgment on the facts of the case to be made by the Tribunal, and not be re-considered by the Court.  This is a judgment by the elected representatives of the Australian people and it binds the Court as well as everybody else concerned with this case.

5. The applicant mentioned a number of matters to me today concerning his treatment at the hands of the Chinese government.  These allegations were not accepted by the Refugee Review Tribunal.  I understand the applicant is deeply unhappy about the Tribunal’s decision.  However, for the reasons I have given, the Court has no right to re-consider the Tribunal's findings.  I myself would be breaking the law if I took notice of the applicant’s submissions as to facts, in order to set aside the Tribunal's decision.

6. I asked the applicant on more than one occasion if he could identify any ground of law affecting the Tribunal's decision.  He was unable to do so.  I do not find that surprising; I myself find no error of law in the Tribunal's reasons.  I emphasise that I express no opinion about the correctness of the Tribunal's findings of fact, but I do not think the Tribunal made any error of law.  Consequently I have no choice but to dismiss the application.

7. Counsel for the Minister seeks an order that the applicant pay the Minister's costs of the proceedings.  When the matter was before me for directions on 14 March, I pointed out that an application for costs would be likely if the case failed.  The applicant had sought free advice, under the Panel scheme, as to the prospects of his case.  However, it appears from a letter that has been sent to the Court that the assigned lawyer was unable to contact the applicant; therefore he did not obtain the advice.  Had he followed through with his request for advice, he may have been advised to abandon the case earlier, and not now be in a position of being required to pay costs.  However, that did not happen.  Under the circumstances I feel I have no option other than to dismiss the application with an order for costs.  I so order.

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

Associate:

Dated:            21 May 2002

Applicant appeared in person
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	13 May 2002