NAKP v Minister for Immigration

[2002] FMCA 173

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAKP v MINISTER FOR IMMIGRATION [2002] FMCA 173

MIGRATION – Application for review of decision of the Refugee Review Tribunal – application not specifying any reviewable grounds – no grounds for review identified – no error of law identified.

Migration Act 1958 (Cth) s.474
Judiciary Act 1903 (Cth) s.39B

VBAH v Minister for Immigration Multicultural & Indigenous Affairs [2002] FCA 388
SDAP v Minister for Immigration Multicultural & Indigenous Affairs [2002] FCA 812

Applicant: NAKP

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 564 of 2002

Delivered on: 30 August 2002

Delivered at: Sydney

Hearing Date: 15 August 2002

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: Applicant in person

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant pay the respondent’s costs in the sum of $3,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 564 of 2002

NAKP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal handed down on 15 May 2002 upholding a decision of the delegate of the Minister made on 29 November 2000 to refuse to grant a protection visa (class XA, sub-class 866).  The application as filed did not contain any details of the application and whilst the amended application filed on 24 July 2002 sought a writ of certiorari, a writ of mandamus and a writ of prohibition, it gave no indication of the grounds upon which this relief was sought.  The applicant had the benefit of advice pursuant to the Minister’s scheme but was not represented at the hearing. 

2. There is authority to the effect that an incompetent application should not be heard (see VBAH v MIMIA [2002] FCA 388) but, after explaining to the applicant the limitations on the power of the court in these matters I asked him to proceed and inform the court why he believed that the Tribunal had erred in law in the manner in which it had come to its decision.

3. The applicant is of Indian nationality and of Hindu religion.  He was brought up in the State of Kerala in Southern India but at the age of 17 commenced a series of position in the United Arab Emirates (UAE) from where he would return at regular intervals to his home. 

4. On 26 September 1985 the applicant married the daughter of a man he claimed was the leader of the terrorist group Al-Umma. In all probability he was referring to the local leader of that group which is based in the State of Tamil Nadu and controlled by one S A Basha.  The applicant claimed that as a result of his refusing to join Al-Umma or to assist it in its aims his father-in-law organised beatings of him in 1986 and 1991 and that he is on a hit-list of Muslim terrorists. 

5. The applicant continued to work in UAE although his wife was living in his home state in India.  He returned almost annually from UAE but he says that he kept his return a secret from his father-in-law.  He stayed with his family and only saw his wife on a few occasions. 

6. The decision of the Tribunal is succinctly summarised in the following paragraph:

   “The Tribunal accepts that the applicant’s claims that after the second attack he lived for a further nine years in UAE, regularly returning to India for his annual vacation (albeit he claims “secretly”).  The Tribunal is satisfied that if the Applicant had a well-founded fear of serious harm amounting to persecution for a Convention reason, he would nether have remained based in UAE for a further nine years after the second attack nor regularly returned to Kerala, the site of the first attack and where he claims he fears he would be at risk, but rather he would have sought protection elsewhere.  In these circumstances, and as the Applicant has not made any further claims about being threatened, attacked, discriminated against or harassed for these or any other reasons in the intervening eleven year period, the Tribunal is satisfied there is no real chance of him experiencing serious harm amounting to persecution for a Convention reason if he were to return to India.” [CB 51-52]. 

7. The applicant through his interpreter made the following submissions:

   “The decision was not satisfactory.  Everything I said was true.  The letter (referring to a letter submitted to the court) shows I used to stay in the UAE and went to India, when I went to India I was in hiding.  When I went to Kerala I was not in contact with my father-in-law or any other people apart from my family and my wife on occasions.”

8. These submissions do not go to any matters within the reach of s.39B of the Judiciary Act 1903 (Cth) particularly given the limitations upon power contained in s.474 of the Migration Act 1958 (Cth) although there would not seem to be any need to consider those limitations in this case. As von Doussa J said in SDAP v MIMIA [2002] FCA 812 at [20]:

   “Apart from the restrictions placed on this court by s.474(1) of the Act, upon judicial review under s.39B of the Judiciary Act, the Court does not have power to re-hear the matter on the merits. Judicial review is confined to correcting errors of law made by the decision maker.”

9. In this particular case no error of law has been identified.  The information that the Tribunal had at its disposal was to my mind sufficient to enable it to come to the conclusion which it did concerning the applicant’s well-founded fear of persecution for Convention reasons. 

10. The applicant has wrongly named the respondent to this application and in order to regularise the position I have ordered that the amended application be further amended to substitute the Minister for Immigration, Multicultural and Indigenous Affairs for the named respondent. I dismiss the application. I order that the applicant pay the respondent’s costs in the sum of $3,750.00 pursuant to Part 21, rule 21.02(2) of the Federal Magistrates Court Rules.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: