NASM v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NASM v MINISTER FOR IMMIGRATION [2002] FMCA 345

MIGRATION – Review of a Refugee Review Tribunal decision affirming a delegate’s refusal to grant a protection visa – whether RRT acted on proper principles – no reviewable error disclosed.

Migration Act 1958 (Cth), s.474

Lachmi v Minister for Immigration [2002] FMCA 19
NAAV v Minister for Immigration [2002] FCAFC 228

Applicant: NASM

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ698 of 2002

Delivered on: 5 December 2002

Delivered at: Sydney

Hearing Date: 5 December 2002

Judgment of: Driver FM

REPRESENTATION

Solicitors for the Applicant: Mr J Bharati
Bharati Solicitors

Counsel for the Respondent: Mr G Kennett

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed at $3,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ698 of 2002

NASM

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This ex tempore judgment relates to an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 28 June 2002 and handed down on 23 July 2002 in which the RRT affirmed a decision of a delegate not to grant the applicant a protection visa.

2. The general background relating to the application is set out in paragraphs 1, 2, 3, 4, 5, 6 and 7 of the written submissions filed on behalf of the respondent on 3 December 2002.  I am satisfied that that is an accurate statement of the background facts and circumstances and adopt it for the purposes of these reasons.

3. At paragraph 8 of those written submissions Mr Kennett, for the Minister, sets out what appear to be the issues raised by the application. That accords with the grounds set out in the application filed on 19 August 2002. At the outset today, Mr Bharati, for the applicant, abandoned any claim based on a failure to accord procedural fairness to the applicant. I understood that action was based on his assessment of the impact of the privative clause in s.474 of the Migration Act 1958 (Cth) (“the Migration Act”). In submissions in reply, Mr Bharati also abandoned any argument based on an asserted lack of good faith. The remaining grounds for the application are that the RRT failed to act on the proper principles for consideration of the merits of the case and otherwise committed an error of law.

4. In his oral submissions, Mr Bharati raised two issues in particular.  He drew my attention to the fact that the applicant had put a written statement to the RRT (court book, page 15).  Mr Bharati submits that in the first two pages of that statement the applicant draws attention to a particular risk factor concerning himself arising out of his asserted involvement with the Liberation Tigers of Tamil Elam (“the LTTE”).  Mr Bharati submits that the RRT paid no regard to that risk…