NAKH v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1507

FEDERAL COURT OF AUSTRALIA

NAKH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1507

MIGRATION – Application for review of Refugee Review Tribunal (“Tribunal”) decision dismissing application for protection visa – no error of principle or law shown – decision protected by privative clause – whether error of law or principle in Tribunal decision

Migration Act 1958 (Cth) s 474

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] followed
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited

NAKH v MINISTER FOR IMMIGRATION AND MULTICULTURAL & INDIGENOUS AFFAIRS

N 515 OF 2002

TAMBERLIN J
SYDNEY
1 NOVEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 515 OF 2002

BETWEEN:	NAKH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	1 NOVEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be 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 515 OF 2002

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

JUDGE:	TAMBERLIN J
DATE:	1 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant in this matter is a national of Bangladesh who arrived in Australia in 1996.  According to the decision of the Refugee Review Tribunal (“the Tribunal”), on 4 January 2000, he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) on the basis that he was a refugee within the meaning of the definition in Article 1(A) of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (“Convention”).  A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) rejected the application and the applicant sought review by the Tribunal on 6 April 2000.  The applicant attended a hearing on 8 May 2002 and the decision of the Tribunal was given on 8 May 2002.

2. The claim of the applicant was that he was entitled be classified as a refugee for Convention reasons based on political opinion.  The Tribunal member set out the relevant country information, the claims and the evidence on which the applicant relied and in his conclusions, he accepted that the applicant was a national of Bangladesh, but found that he had departed the country legally and considered that this was consistent with the position of a person who was not wanted by the authorities at the time that he left Bangladesh.  The Tribunal was not satisfied that the applicant was a member of any political party and gave reasons for that finding based on what it perceived to be conflicting and improvised evidence.  The Tribunal was not satisfied that the applicant had ever been charged by the authorities in Bangladesh and considered that the applicant was an unreliable witness and was therefore not satisfied that he faced a real chance of persecution for Convention related reasons.

3. On the application to the Court for review of the Tribunal decision, the applicant has sought to repeat argument relating to the factual merits of his case but has not raised, in my view, any error of law or principle which would warrant judicial review in the present case. The findings by the Tribunal member are essentially questions of fact and degree and do not raise any questions of principle for consideration by the Court. In addition to the foregoing, it is to be noted that the provisions of s 474 of the Migration Act 1958 (Cth) (“the Act”) apply in the present circumstances and this is recognised in the detailed written submissions advanced for the applicant in the case.

4. On the well settled principles applying to that section, the decision of the Tribunal cannot be attacked if it can be classified as being a bona fide attempt to exercise power relating to the subject matter of the legislation and if it is reasonably capable of reference to the power given to the decision-maker.  In the present case there is nothing to indicate that these requirements were not satisfied, and in particular, there has been no case made out in relation to bias or breach of natural justice, notwithstanding that I am bound by the recent decision of the Full Court in this matter in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 to the effect that even if grounds of natural justice or other errors of law were made out, provided that the conditions as set out in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 are satisfied, then the decision is protected from judicial review.

5. I am not satisfied in the present case that any error of law or principle has been established so that it becomes essential to consider the provisions of s 474 for the reasons given above, but if I were of the opinion that an error has been demonstrated, I do not consider that the evidence establishes that the decision is not protected by s 474 of the Act. Accordingly I dismiss the application with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            23 December 2002

Applicant appeared in person.
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 November 2002
Date of Judgment:	1 November 2002