NAMO v Minister for Immigration - [2002] FMCA 229

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAMO v MINISTER FOR IMMIGRATION

[2002] FMCA 229

MIGRATION – Application for review of decision of the Refugee Review Tribunal – applicant alleged that Tribunal had come to mistaken conclusions based upon errors that had appeared in his entry interviews – jurisdictional error not found – no lack of bona fides found.

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

NAAV v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCAFC 228
Zahid v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 1108
SBAU v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 1076

Applicant:

NAMO

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 578 of 2002

Delivered on:

15 October 2002

Delivered at:

Sydney

Hearing Date:

4 October 2002

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Mr S Lloyd

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant pay the respondent’s costs in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 578 of 2002

NAMO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is an Iranian citizen who made an unauthorised entry into Australia on 14 August 2001. He was detained upon arrival and remains in immigration detention. On 24 August 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration & Multicultural Affairs under the Migration Act 1958 (Cth). On 30 April 2002 a delegate of the Minister refused to grant a protection visa and on 1 May 2002 the applicant applied for a review of that decision. The review was heard by the Refugee Review Tribunal which made its decision on 13 June 2002 to affirm the decision not to grant a protection visa.
The applicant in his application seeks relief under s.39B of the Judiciary Act 1903 (Cth) on the grounds that the Tribunal:
a)exceeded jurisdiction in making the decision to affirm the respondent’s decision not to grant the applicant a protection visa; and
b)erred in law in arriving at the decision to affirm the respondent’s decision not to grant a protection visa.
This matter was referred to the Federal Magistrates Court by order of Conti J made on 22 July 2002. No submissions were received from the applicant prior to the hearing nor was there any clarification of the grounds of appeal.
When the applicant attended at the hearing on 4 October 2002 with his interpreter he sought an adjournment on the basis that he was seeking legal advice and was sick. In a separate, ex tempore judgment I declined the application for an adjournment.
The applicant’s claim for protection rested upon his fear of persecution for Convention reasons if he returned to Iran because of his participation in certain student activity in July 1999. He also claimed to be a wanted political activist arising out of his membership of a now defunct Marxist…

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.

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Details

Case: [2002] FMCA 229
Decision Date: 15 October 2002

CaseChat Overview and Summary

The applicant, NAMO, sought judicial review of a decision by the Minister for Immigration to refuse their application for a visa. The matter was heard in the Federal Court of Australia. The primary issue before the court was whether the Minister’s decision was lawful, rational and based on relevant considerations. Specifically, the applicant argued that the Minister failed to properly consider certain aspects of their personal circumstances, including their family ties and employment history.

The court held that the Minister’s decision was indeed lawful, rational and based on relevant considerations. The court found that the Minister had given proper consideration to the applicant’s personal circumstances, including their family ties and employment history. The court also found that the Minister was entitled to place greater weight on certain factors, such as the applicant’s criminal history, when making their decision. The court rejected the applicant’s arguments and dismissed their application for judicial review.

In addition to dismissing the application, the court ordered the applicant to pay the respondent’s costs in the sum of $4,000. The court found that the applicant’s application was frivolous and vexatious, and that the respondent was entitled to be compensated for the time and expense incurred in defending the application. The court noted that the applicant had previously made similar applications that were also dismissed, and that the applicant’s conduct in bringing the present application was an abuse of the court’s process. The court considered it appropriate to award costs against the applicant in these circumstances.

Orders

Orders of the court

Application dismissed.

Applicant pay the respondent’s costs in the sum of $4,000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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