NARH v Minister for Immigration
[2002] FMCA 303
•25 November 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NARH v MINISTER FOR IMMIGRATION | [2002] FMCA 303 |
| MIGRATION – Review of a Refugee Review Tribunal decision affirming a delegate’s decision to refuse to grant a protection visa – no reviewable error disclosed. |
Migration Act 1958 (Cth), s.474
NAAV v Minister for Immigration [2002] FCAFC 228
| Applicant: | NARH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 857 of 2002 |
| Delivered on: | 25 November 2002 |
| Delivered at: | Sydney |
| Hearing Date: | 25 November 2002 |
| Judgment of: | Driver FM |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the Respondent: | Mr J D Smith |
Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed at $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ857 of 2002
| NARH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This ex tempore judgment relates to an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 24 June 2002 and handed down on 18 July 2002. The decision of the RRT was to affirm a decision of a delegate of the Minister to refuse the applicant a protection visa. The application originally filed in the Federal Court on 12 August 2002 lists two grounds of review. Those are, first; that the RRT made a jurisdictional error by failing to consider relevant material. The second is that the RRT breached natural justice by not indicating to the applicant adverse material to be relied upon.
The application is supported by an affidavit filed on the same day as the application. That affidavit repeats the same grounds. On 9 September 2002, his Honour Jacobson J transferred this matter to this Court. Both the applicant and the respondent have also filed written submissions in relation to the application. Although the applicant is representing himself, he appears to have had some legal assistance in writing his written submissions. In his written submissions the applicant states that the RRT fell into jurisdictional error in that it did not ask the right questions and ignored relevant material in relation to his case. The applicant also submits that the RRT failed to make a bona fide attempt to exercise its decision making power.
The respondent submits that the applicant has failed to advance anything meriting review of the RRT decision. Mr Smith, for the Minister, has pointed out that the grounds of review contained in the application and affidavit are clearly excluded on the authority of the Full Federal Court decision in NAAV v Minister for Immigration [2002] FCAFC 228. However, the reference to the RRT failing to inform the applicant of adverse material might, in addition to an alleged breach of natural justice, also bear upon the question whether an inviolable pre-condition to the exercise of power was breached by the RRT.
It is clear from the decision and reasons of the RRT (court book, p56) that matters considered to be adverse to the claims made by the applicant were put to him in great detail by the presiding member. Accordingly, the applicant was, in my view, provided with a fair hearing by the RRT. The allegation of a lack of good faith lacks any supporting detail. There is nothing in the court book or in the application and affidavit and submissions relied upon by the applicant to indicate a lack of good faith.
The decision of the RRT was clearly in my view a bona fide attempt by the RRT to exercise the powers conferred on it. That does not mean that the decision of the RRT was necessarily the correct or preferable decision. The applicant, in his oral submissions, referred at some length to the situation of the minority Buddhist community in Bangladesh. I am prepared to accept that the Buddhist community in Bangladesh has faced difficulties.
In particular, it appears from documents attached to the applicant's written submissions that a Buddhist monk was murdered in grotesque circumstances earlier this year. It may well be that other monks have been, and continue to be, subject to persecution. However, it is plain from the reasons for decision of the RRT that the presiding member based his decision upon findings of credibility made about the applicant. Whatever may be the general situation of Buddhists in Bangladesh, the presiding member rejected the claims made by the applicant about himself as lacking credibility.
Those findings were, in my view, reasonably open to the presiding member on the material before him and in view of responses to questions provided by the applicant to him. In the circumstances, I can find no legal error in the decision of the RRT. The application would fail even in the absence of the privative clause in s.474 of the Migration Act 1958 (Cth). The effect of the privative clause is simply to reinforce that conclusion. Accordingly, I will dismiss the application.
On the question of costs, Mr Smith has sought an order for costs, on behalf of the Minister, and has submitted that an order in the sum of $4,000 would be appropriate. I invited the applicant to make submissions on costs. I understand from what he said that he would have great difficulty paying an order for costs in that sum. However, the financial circumstances of the applicant do not alter the general principle that costs follow the event. Accordingly the Minister prima facie is entitled to an order for costs.
There is nothing in these proceedings that would cause me to depart from that general principle. As to the amount of costs, the preparation undertaken by the Department I would consider to be average. The Minister was entitled to be represented by counsel at the hearing at the proceedings before me today. In the circumstances, an order for costs in the sum $4,000 would be reasonable. I will therefore order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 2 December 2002
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