NAGW v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 272

FEDERAL COURT OF AUSTRALIA

NAGW v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 272

NAGW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1422 of 2002

WILCOX J
25 MARCH 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1422 OF 2002

BETWEEN:	NAGW, NAGW, NAGY, NAGZ, NAHA & NAHB APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	25 MARCH 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.The two adult applicants pay the costs of the respondent, Minister for Immigration & Multicultural & Indigenous Affairs.

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 1422 OF 2002

BETWEEN:	NAGW, NAGW, NAGY, NAGZ, NAHA & NAHB APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	25 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed decisions made by a delegate of the respondent, Minister for Immigration & Multicultural & Indigenous Affairs, refusing Protection Visas to six persons of Bangladeshi nationality.  One of those persons, the head of the family, has appeared today, in person, to put the application for review for himself and on behalf of his wife and their four children.  He has been assisted by an interpreter.  

2. When the matter came before me for directions on 12 February 2003, I noted that the applicant, that is to say, the husband, had sought legal advice under the panel scheme operated by the Court.  However, he told me the advice had not yet been provided.  I requested the Registry to communicate with the assigned lawyer to expedite the advice.  I understand that advice was subsequently provided.  On 12 February 2003, I also pointed out to the applicant that the Court had no jurisdiction to review the findings of fact made by the Tribunal.  I also mentioned that the usual order in relation to costs was that the losing party is ordered to pay the costs incurred by the winning party. 

3. Notwithstanding all the above matters, the applicant maintained his application for review.  But he has not put anything to the Court that amounts to an argument of jurisdictional error by the Tribunal.

4. The applicant submitted the Tribunal failed to properly investigate the claims made by him.  He said that he answered all the questions asked of him by the Tribunal truthfully but, nonetheless, the decision was a negative decision.  I asked the applicant to be more specific in relation to his claim that the Tribunal failed to investigate the matters raised by him.  I pointed out that the Tribunal, in its decision, dealt with the facts of the matter at some length and assigned reasons for its negative findings of fact.  In answering my question, the applicant referred to the views expressed by the Tribunal about factual matters and told me why he thought those views were wrong.

5. I well understand that the applicant disagrees with the Tribunal’s factual conclusions.  However, as I pointed out several times during the hearing, this is not a matter about which the Court can take cognisance.  Questions of fact are for the Tribunal to determine, not for the Court.  I express no view about the Tribunal’s findings of fact, because it is not my function to do this.  What is clear is that there is no issue raised that would entitle the Court to intervene, having regard to the limitations on its powers.  In saying this, I bear in mind, not only what has been said orally today, but also a document by way of submission that was filed on 20 March 2003, which I have read.  That document contains only submissions of fact.

6. I also take into account my own careful perusal of the Tribunal’s decision.  In my opinion, it exhibits no reviewable error.  As I say, I fully appreciate that the applicant feels the Tribunal has made a wrong decision about the facts.  I also understand that he wishes to remain, with his family, in Australia.  But these are not matters which I am entitled to take into account.  As there is no jurisdictional error, I have no option other than to dismiss the application. 

7. The applicant asked that, if the application was to be dismissed, I should refrain from making any costs order.  Mr Justin Smith, counsel for the Minister, seeks a costs order and has properly pointed out that this order should only affect the two adult applicants and not any of the children.

8. I see no basis for refraining from making a costs order.  There has been nothing in the conduct of the proceeding on behalf of the Minister that would disentitle him to the usual order as to costs.  The issue of costs was clearly raised by me on 12 February and a warning was given.  The applicant was entitled to proceed with the hearing notwithstanding this warning, but he did so at his own risk as to costs.  In the circumstances, the appropriate order is that the application be dismissed.  I order that the two adult applicants pay the Minister’s costs of the proceeding. 

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

Associate:

Dated:            9 April 2003

Applicant NAGW appeared in person for himself and on behalf of the other applicants.
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	25 March 2003