NAPW v Minister for Immigration - [2004] FMCA 346

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAPW v MINISTER FOR IMMIGRATION

[2004] FMCA 346

MIGRATION – Application for review of Refugee Review Tribunal decision – – credibility – whether substance of independent information put to applicant – no jurisdictional error.

Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (1999) 168 ALR 407
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
VHAP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82
Applicant A376/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1498
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 179 ALR 389
Kopalapillai v Minister for Immigration& Multicultural Affairs (1998) 86 FCR 547

Applicant:

NAPW

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1340 of 2003

Delivered on:

3 May 2004

Delivered at:

Sydney

Hearing date:

3 May 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr M. Wigney

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application is dismissed.
That the Applicant pay the Respondent's costs set in the amount of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1340 of 2003

NAPW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) which was handed down on 24 April 2003 refusing to grant the applicant a Protection Visa. The applicant is a citizen of Bangladesh. He last arrived in Australia on 18 November 2000 having visited Australia several times since late 1998. He applied for a Protection Visa on 11 December 2000. He claimed to fear persecution in Bangladesh for reason of his political opinion and religion as a Hindu and as an active member of the Jatiya Party.
He claimed that members of the rival Awami League had targeted him and his family. He claimed to have been the victim of an assault on

1 August 1998 and that the police had raided his house a number of times only to arrest him. He also claimed that as a member of the Hindu minority he would face persecution by Muslims in the event of his return to Bangladesh.
On 28 February 2001 a delegate of the respondent refused to grant a protection visa and on 15 March 2001 the applicant applied to the Tribunal for a review of that decision. On 9 August 2002 the Tribunal wrote to the applicant advising him that it had considered the material before it and was unable to make a decision in his favour on that information alone. It invited him to attend a hearing which he did.
The applicant's adviser also lodged written submissions and a large number of documents with the Tribunal. In a written submission of

12 September 2002 the adviser addressed at length both issues and independent information referred to or relied upon in the reasons…

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: [2004] FMCA 346
Decision Date: 3 May 2004

CaseChat Overview and Summary

The matter before the court involved an application by an individual, referred to as the Applicant, against the Minister for Immigration. The Applicant sought judicial review of the Minister's decision to refuse to grant him a visa. The case was heard in the Federal Court of Australia. The Applicant argued that the Minister's decision was unreasonable and that he had been denied procedural fairness. The Minister maintained that the decision was lawful and based on valid grounds.

The primary legal issue before the court was whether the Minister's decision to refuse the visa was unreasonable and whether the Applicant had been denied procedural fairness. The court was required to assess the correctness of the decision-making process and the validity of the reasons provided by the Minister. The Applicant contended that the Minister failed to consider relevant information and that the decision was based on an error of law. The Minister argued that the decision was within the statutory powers and that all relevant considerations had been taken into account.

The court found that the Minister's decision was lawful and that the Applicant had not been denied procedural fairness. The court held that the Minister had considered all relevant information and that the decision was not based on an error of law. The reasons provided by the Minister were sufficient to justify the decision. The court also found that the Applicant had not demonstrated that the decision was unreasonable. Consequently, the court dismissed the application and ordered the Applicant to pay the Minister's costs.

Orders

Orders of the court

That the application is dismissed.

That the Applicant pay the Respondent's costs set in the amount of $4,500.

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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