NACP v Minister for Immigration

[2003] FMCA 18

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NACP v MINISTER FOR IMMIGRATION [2003] FMCA 18

MIGRATION – Review of Refugee Review Tribunal decision affirming a delegate’s refusal of a protection visa – whether the reasons for decision of the RRT adequate – no reviewable error found.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.414, 415, 420

Aras v Minister for Immigration (1998) 50 ALD 797
Syan v RRT (1995) 61 FCR 284

Applicant: NACP

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1093 of 2002

Delivered on: 30 January 2003

Delivered at: Sydney

Hearing date: 30 January 2003

Judgment of: Driver FM

REPRESENTATION

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 $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1093 of 2002

NACP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This extempore judgment relates to an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 3 September 2002 and handed down on 25 September 2002. The applicant proceeded today on the basis of an amended application filed on 15 January 2003. In that application, it is asserted that the decision of the RRT breaches an inviolable limitation on the RRT’s power in that the RRT did not lawfully exercise its power under s.415(2)(a) of the Migration Act 1958 (Cth) (“the Migration Act”) because it failed to conduct a review in accordance with s.414(1) of that Act.

2. It is also asserted that the RRT breached s.420 of the Migration Act in failing to accord substantial justice and to pursue the merits of the case. It is finally asserted that the applicant was denied natural justice or procedural fairness in that he was not informed that the RRT had not considered the whole of the applicant's claims. The applicant was represented by Mr Michael Jones, solicitor, but Mr Jones filed today a notice of withdrawal having previously given notice of his withdrawal to the applicant. I am satisfied that the Federal Magistrates Court Rules 2001 (Cth) regarding the withdrawal of the solicitor have been complied with. I have heard from the applicant in person today following the withdrawal of his solicitor.

3. The background facts are accurately set out in paragraphs 1 to 4 of the respondent’s written submissions.  The applicant gave short oral evidence in which he stated that he attended his hearing before the RRT on 2 September 2002 in anticipation of a hearing at 9.15am.  He was told that at that time no member was available and the hearing did not commence until 11.00am.  He told me that he was concerned at the hearing that the presiding member did not seem to be familiar with his case and did not ask him questions about material that he had presented.

4. Under cross-examination, Mr Reilly, for the respondent Minister, pointed out to the applicant that two letters had been sent to him (court book, pp 43 and 45).  The first letter advised of the hearing at 9.30am on 2 September 2002.  The second, which was sent to the same address three days after the first, advised of a change of time to 10.30am on the same day.  The applicant maintained, under cross-examination, that while he had received the first letter, he had not received the second.

5. In oral submissions, the applicant put to me that the decision and reasons of the RRT was incomplete in that it failed to deal with all of the material which had been put before the RRT by the applicant. In response, Mr Reilly has submitted that the RRT had complied with its statutory obligations and that there was no breach of ss.414 or 415 or s.420 and that, even if there had been, these would not amount to a breach of an inviolable precondition on the exercise of power by the RRT.

6. Mr Reilly pointed out that the applicant had access to tapes of the hearing before the RRT and had been directed by the Federal Court, prior to transfer of the proceedings to this Court, to put on evidence in support of his application.  He did not do so prior to the hearing and limited himself to oral evidence in the witness box and statements from the bar table.

7. It is apparent from reading the decision and reasons of the RRT (court book, commencing p.51, in particular on pages 54, 55 and 56) that the applicant changed significantly the facts which he claimed as supporting his fear of persecution at the hearing before the RRT.  Claims that he made orally before the RRT bore little or no relationship to the claims that he had previously put in writing.  In the circumstances, it is understandable that the presiding member may have been bemused and may have been uncertain as to what questions to put to the applicant.  The reasons for decision of the presiding member are certainly brief.  However, the presiding member does go through the claims that he says were put to him in evidence.  I have nothing before me to persuade me that the treatment of those claims by the presiding member was inadequate or incomplete.

8. The substance of the decision of the RRT was that whatever the truth of the applicant's claims about communal trouble that he experienced in India, he had the ability to relocate within India to avoid those problems.  Taking into account that ability to relocate, the RRT concluded that there was no real chance that the applicant would be harmed if he returned to India and relocated.  He was not therefore a person to whom Australia owed protection obligations.

9. In his written submissions, Mr Reilly has directed my attention to the decisions of the Federal Court in Syan v RRT (1995) 61 FCR 284 and Aras v Minister for Immigration (1998) 50 ALD 797, which I am satisfied establish that the RRT is not required to make conclusive findings on the truth or falsity of factual assertions made by an applicant if the RRT satisfies itself that those assertions, if true, do not establish persecution, because of the ability to relocate to avoid the difficulties that have been identified.

10. In the circumstances, I am satisfied that the decision and reasons of the RRT does not disclose any error of law. For completeness, I am also satisfied that the decision of the RRT was made in good faith, that it properly relates to the subject matter of the Migration Act and was reasonably capable of reference to the power conferred on the RRT by that Act. I am not persuaded that any inviolable precondition on the exercise of power by the RRT has been breached. I will therefore dismiss the application.

11. On the question of costs, Mr Reilly has sought an order for costs fixed in the sum of $4,000.  The applicant opposes an order on the basis of his lack of means.  I am satisfied that as the Minister has been wholly successful he is entitled to an order for costs.  The amount of preparation that has been apparently necessary in this case is not particularly extensive.  It was reasonable and proper for the Minister to be represented by counsel today which would obviously add to the costs incurred on behalf of the Minister.  Nevertheless, I take the view that an order for costs in the sum of $3,500 would be adequate in the circumstances of this matter.  I will therefore order that the applicant pay the respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  19 February 2003