Nadz v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 951

FEDERAL COURT OF AUSTRALIA

NADZ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 951

MIGRATION – application for review of RRT decision – adjournment of hearing sought – whether RRT fell into error – issues of fact – whether grounds give rise to reviewable error

NADZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 177 OF 2002

TAMBERLIN J
SYDNEY
26 JULY 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 177 OF 2002

BETWEEN:	NADZ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	26 JULY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay the respondent’s 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	N 177 OF 2002

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

JUDGE:	TAMBERLIN J
DATE:	26 JULY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for a review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) not to grant a protection visa on the ground that the applicant was not a refugee within the meaning of the definition in the Refugee Convention of 1951. 

2. When the matter came on for hearing, the applicant sought an adjournment pending a reply from the New South Wales Association to a request for legal assistance.  I informed the parties that before making a decision as to the adjournment of the hearing, I would hear the substance of the claims sought to be made by the applicant on the application for review.

3. Two matters were raised before me in relation to this matter.  The first of these is in the particulars set out in the amended application, which is to the effect that the Tribunal member did not expressly raise a number of questions with the applicant in order to support the finding that the applicant was not at risk of persecution because his low profile meant that he would not attract harassment for a Convention reason.

4. I have read the relevant discussion in the Tribunal’s reasons relating to that finding and other material to which I have been referred and I do not consider that there was any obligation on the Tribunal member to take any further steps than were taken at the hearing in order to raise these issues with the applicant.  The applicant presented the evidence and these matters arose in the course of the hearing and the Tribunal made an appropriate finding in relation to them.  I do not see any error of principle or law in relation to the way in which the Tribunal approached this aspect of its findings.

5. On an application to this Court it is not for the Judge to reconsider the merits and the factual findings that were made by the Tribunal member, but rather to determine whether any error of principle or law had been made.  The matters which are sought to be raised by way of justification in relation to the submission made by the applicant are essentially questions of fact and degree and I am not satisfied that any error has been shown in relation to the way in which the Tribunal approached this first matter, as set out in the first ground of the amended application.

6. A second matter which was raised on the hearing concerned the finding of the Tribunal member that the main reason for the applicant departing India was because of the failure of his marriage and the consequential depression that this caused him.  The Tribunal member was not satisfied that his primary reason for leaving India was because he was afraid of the police.  The finding of the Tribunal member does leave open the question whether fear of the police was one of the reasons for leaving India, but having regard to the decision as a whole and particularly the finding in the next paragraph of the Tribunal’s reasons that the Tribunal member was not satisfied that the applicant had a well-founded fear of persecution for a Convention related reason, I do not think there has been any error of principle in relation to this finding, such that it would warrant review by this Court.

7. Accordingly, I am not persuaded that the decision of the Tribunal was in error. The matters sought to be raised by the applicant essentially concern issues of fact. I am not persuaded that an adjournment of the hearing date should be granted, nor have the grounds in the amended application demonstrated any reviewable errors of law or principle. I note that the decision made is one that comes within the protection afforded by s 474 of the Migration Act 1958 (Cth).

8. Accordingly, I refuse the adjournment and I dismiss the application.  On the normal principles, I order that the applicant is to pay the respondent's costs of this application.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             5 August 2002

The Applicant appeared in person
Counsel for the Respondent:	J Smith
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	26 July 2002
Date of Judgment:	26 July 2002