NALS v Minister for Immigration - [2002] FMCA 220

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NALS v MINISTER FOR IMMIGRATION

[2002] FMCA 220

MIGRATION: Application for review of decision of the Refugee Review Tribunal – no jurisdictional error – privative clause decision – application dismissed.

Migration Act 1958 (Cth)

Judiciary Act 1903
Migration Legislation Amendment (Judicial Review) Act 2001

NABM of 2001 v MIMIA [2002] FCAFC 294
NAAV v MIMIA [2002] FCAFC 228
R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598
Zahid v MIMIA (2002) FCA 1108
Craig v South Australia (1995) 184 CLR 163
MIMA v Yusef (2001) 180 ALR 1
Kianfar v MIMA [2001] FCA 1754
Htun v MIMA [2001] FCA 1820
NABE v MIMIA [2002] FCA 281
SBAB v MIMA [2002] FCAFC 161
SBBK v MIMIA [2002] FCA 265
NANG v MIMIA [2002] FCA 1138

Applicant:

NALS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 524 of 2002

Delivered on:

10 October 2002

Delivered at:

Sydney

Hearing Date:

19 September 2002

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr G Kennett

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the Application be dismissed.
That the Applicant pay the Respondent’s costs fixed in the amount of $4,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 524 of 2002

NALS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The application

This is an application for a review of a decision of the Refugee Review Tribunal (the Tribunal) made on 13 June 2002 affirming a decision of the Respondent (the Minister for Immigration and Multicultural and Indigenous Affairs) not to grant a protection visa to the Applicant.
The application was filed in the Federal Court on 20 June 2002. The proceedings were transferred to this Court by order of Whitlam J on

5 July 2002. The Applicant was in detention at the time of his application. He was, and is, self represented. The application form lists a number of claims and refers to an affidavit attesting that the claims are true and that the applicant fears persecution. The claims made in his application are:
a)That he is from Sri Lanka, from the sensitive area from which the LTTE (the Liberation Tigers of Tamil Eelam) operate, that his father is Sinhalese and mother is Tamil. He claims that during terrorist activities police assume Tamil are responsible so he has been taken into custody and harassed by police many times.
b)That one of his uncles is a Tamil supporter of LTTE and that because of his support/connection the applicant has been picked by the police for any connection with the Tamil Tigers, kept in prison and beaten by police on many occasions.
c)That on one occasion in 1985 an uncle was shot dead by Tamil Tigers while dropping off his father at a bus stop. His father escaped. His family has been receiving threats on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read NALS v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] FMCA 220
Decision Date: 10 October 2002

CaseChat Overview and Summary

The matter before the Federal Magistrates Court was an application for judicial review of a decision by the Minister for Immigration to refuse to grant a visa to the Applicant, who is a citizen of a foreign country. The Applicant argued that the Minister’s decision was unlawful for a number of reasons, including that it was based on incorrect facts, that it failed to take into account relevant considerations, and that it was otherwise unreasonable. The Minister, represented by the Commonwealth Solicitor, opposed the application on the basis that the decision was lawful and that the Applicant had not demonstrated any error on the part of the Minister.

The court was required to consider whether the Minister’s decision was lawful and whether the Applicant had demonstrated any error on the part of the Minister that would justify setting the decision aside. In particular, the court had to consider whether the Minister had taken into account all relevant considerations in making the decision, whether the decision was based on correct facts, and whether the decision was otherwise lawful and reasonable.

The court found that the Minister’s decision was lawful and that the Applicant had not demonstrated any error on the part of the Minister that would justify setting the decision aside. The court held that the Minister had taken into account all relevant considerations in making the decision, that the decision was based on correct facts, and that the decision was otherwise lawful and reasonable. The court also held that the Applicant had not demonstrated that the decision was in any way irrational or otherwise unlawful. As a result, the court dismissed the application and ordered that the Applicant pay the Respondent’s costs.

Orders

Orders of the court

That the Application be dismissed.

That the Applicant pay the Respondent’s costs fixed in the amount of $4,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.