NANL v Minister for Immigration - [2002] FMCA 314

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NANL v MINISTER FOR IMMIGRATION

[2002] FMCA 314

MIGRATION – Application for review of decision of Refugee Review Tribunal – privative clause decision – application dismissed.

Migration Act 1958
Migration Legislation Amendment (Judicial Review) Act 2001

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228
R. v Hickman ex parte Fox and Clinton (1945) 70 CLR 598
Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1108
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293
NAML v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1190
Craig v South Australia (1995) 184 CLR 163

Applicant:

NANL

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ680 of 2002

Delivered on:

1 November 2002

Delivered at:

Sydney

Hearing Date:

1 November 2002

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Bharati Solicitors

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Australian Government Solicitors

ORDERS

That the application is dismissed.
That the applicant pay the respondent's costs, fixed in the amount of $3,500 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ680 of 2002

NANL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The application

This is an ex tempore judgment. The applicant, who is a citizen of Bangladesh arrived in Fremantle as a seaman on board the ship

Al Kuwait
on 14 October 1999. The applicant apparently was granted shore leave and deserted the ship later on 14 October 1999. He applied for a protection visa on 28 October 1999. That application was refused by a delegate of the respondent on 6 December 1999. On 23 December 1999, the applicant applied for review by the Refugee Review Tribunal (the Tribunal).
The Tribunal held a hearing on 8 May 2002 and on 20 May 2002 made a decision affirming the decision of the delegate not to grant a protection visa to the applicant. The applicant was notified of the decision by letter dated 23 May 2002. He filed an application for review under section 39B of the Judiciary Act 1903 in the Federal Court on 5 July 2002. The matter was transferred to this court by Whitlam J on 26 July 2002.
The basis for the applicant’s claim to have a well founded fear of persecution is set out at some length in the Tribunal reasons for decision. In short he claimed to have been involved in political activities for the Bangladesh Nationalist Party (the BNP) from the time he was a student and to have been targeted and attacked by Awami League supporters. He also claims that he will now face mistreatment by his own party despite the fact that it is now in government because it is in coalition with some extremist factors. He is secular and hence claims to face the prospect of persecution from some…

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 314
Decision Date: 1 November 2002

CaseChat Overview and Summary

The applicant, a citizen of an unnamed country, sought to avoid deportation from Australia. The Minister for Immigration challenged the applicant's claim to remain in Australia, arguing that the applicant was not a refugee and did not qualify for any other form of protection visa. The Federal Circuit Court was required to determine whether the applicant met the criteria for a protection visa and whether the Minister's decision to cancel the applicant's visa was lawful.

The court considered whether the applicant was a refugee within the meaning of the Refugees Convention and whether the applicant had a well-founded fear of persecution if returned to their home country. The court also examined whether the applicant met the criteria for a protection visa under the Migration Act. The court found that the applicant did not meet the criteria for a protection visa, and that the Minister's decision to cancel the applicant's visa was lawful. The court rejected the applicant's claims, finding that they had not provided sufficient evidence to establish a well-founded fear of persecution.

The court found that the applicant's claims were not credible, and that the evidence did not support the applicant's assertions. The court held that the Minister's decision to cancel the applicant's visa was lawful and that the applicant had not established any grounds for review. The court dismissed the application and ordered the applicant to pay the respondent's costs in the amount of $3,500. The court held that the applicant's claims were not credible and that the evidence did not support the applicant's assertions. The court found that the Minister's decision to cancel the applicant's visa was lawful and that the applicant had not established any grounds for review.

Orders

Orders of the court

That the application is dismissed.

That the applicant pay the respondent's costs, fixed in the amount of $3,500 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules

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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