SZOSU v Minister for Immigration

[2011] FMCA 132

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOSU v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 132

MIGRATION – Review of decision of Refugee Review Tribunal – whether the Tribunal misunderstood or misconstrued a claim before it – whether the Tribunal actually failed to deal with a claim made – whether the Tribunal properly considered the claims by engaging in an active intellectual process – whether there was a breach of the rules of natural justice at common law – consideration of ss.36(4) and 36(5) of the Migration Act – request for impermissible merits review – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 422B, 424A, 425, 425A, 441A, 441C, 476
Migration Regulations 1994 (Cth), reg.4.35D

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405
Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 85 ALJR 306; (2010) 273 ALR 122
Swift v SAS Trustee Corporation [2010] NSWCA 182
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 84 ALJR 507; (2010) 267 ALR 204
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592
MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94
WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SZGXK v Minister for Immigration & Citizenship [2008] FCA 1891
V856/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 1018; (2001) 114 FCR 408
Applicants inV 722 of 2000 v Minister for Immigration & Multicultural Affairs [2002] FCA 1059
SZERD v Minister for Immigration & Multicultural Affairs [2006] FCA 560
SZFBO v Minister for Immigration & Multicultural Affairs [2006] FCA 291
SZGBY v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 35
SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97; (2010) 187 FCR 109; (2010) 272 ALR 59
NBLC; NBLB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 272; (2005) 149 FCR 151

Applicant: SZOSU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2354 of 2010

Judgment of: Nicholls FM

Hearing date: 3 March 2011

Date of Last Submission: 3 March 2011

Delivered at: Sydney

Delivered on: 3 March 2011

REPRESENTATION

The Applicant: In Person

Appearing for the Respondents: Mr J Pinder

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application made on 1 November 2010 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2354 of 2010

SZOSU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised From Transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 1 November 2010 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 4 October 2010 which affirmed the decision of a delegate of the first respondent Minister to refuse a protection visa to the applicant.

Background

1. The applicant is a citizen of Nepal who arrived in Australia on 28 December 2009 and applied for a protection visa on 28 January 2010 (see Court Book – “CB” – CB 1 to CB 63 with supporting documents).

Claims to Protection

1. The claims to protection were initially set out in a Statutory Declaration (CB 25 to CB 26). The applicant claimed to fear persecutory harm, if he were to return to Nepal, from Maoists and other political parties because of his involvement with the RPP (Rastriya Prajatantra Party) and his support for the monarchy in Nepal.

The Delegate

1. A delegate of the Minister refused the application for a protection visa on 20 May 2010 (CB 64 to CB 86).

The Tribunal

1. The applicant applied for review to the Tribunal on 25 June 2010 (CB 88 to CB 91). He was assisted by a registered migration agent who was also a lawyer (CB 89). The applicant’s representatives made written submissions in which extensive reference was made to independent country information (CB 126 to CB 292). The applicant gave evidence at a hearing. His adviser was present at that hearing (CB 293).

2. On any plain reading of the decision record, the Tribunal gave two reasons for affirming the delegate’s decision, which are independent of each other. The first is that the Tribunal rejected the applicant’s factual account of what he said had occurred in Nepal both as to his claimed political opinion, his political activity, and the incidents of harm claimed.

3. The second was that the Tribunal found, in the alternative, that the applicant had a right to enter and reside in India, such as to avoid any persecutory harm in Nepal (which the Tribunal did not otherwise accept would occur).

Application to the Court

1. The applicant put forward seven largely unparticularised complaints or assertions of error on the part of the Tribunal:

   “1. I argue that the Tribunal member has misconstrued my claims that I hold a well founded fear of persecution on the basis of being a Monarchist in my country. I believe I am a victime of the purported decision as the Tribunal Member committed jurisdictional error by failing to consider a claim or misconstruing a claim made to it. The Tribunal rejected my claim on the basis that I was not a member of the RPP party without comprehending that my claim to fear persecution by reason of being a Monarchist was a separate basis upon which I claimed to fear persecution. Rather, the Tribunal Member incorrectly construed my claim to be a Monarchist as an extension of the claim that I belonged to the RPP political party.

   2. The Tribunal failed to consider my claim in the sense of engaging in an active intellectual process in respect of separately dealing with my claims.

   3. I argue that the Tribunal member’s decision in my case has been vitiated by an error of law as the evidence that the Tribunal member relied upon is so unreasonable or so inadequate the only inference is that the Tribunal member failed to satisfy all its statutory requirements in dealing with my case.

   4. I do not agree with the purported decision of the Tribunal Member as I believe the Member ignored the fact that I am a Monarchist. I contend that the Tribunal did not fully refer to the duty to observe common law requirements of fairness as a duty to act judicially.

   5. The Tribunal member proceeded on an erroneous factual conclusion because I believe that the Tribunal member placed material weight on the view that I am not a member of the RPP party. The overbearing nature of comments made by the Tribunal member clearly coloured the whole of my evidence.

   6. The Tribunal’s reasons exhibited both an absence of the caution legally due for an examination of a law plainly as amounting to or pointing to a risk of persecution and an absence of an attempt at the legally necessary demonstrations of exceptionality of circumstances in my country of nationality. The structure of the decision clearly showed the Tribunal member did not complete its required review function. Given the Tribunal’s statement of reasons as a whole, the absence of any pertinent findings and discussion about my claims implied that it was overlooked by the Tribunal.

   7. The Tribunal member’s decision in relation to my case was taken in breach of the rules of natural justice. The RRT did not consider it necessary to come to a concluded view as to whether I was a victim of the Maoists or protected by the government authorities. The Tribunal member appeared to have considerable familiarity with my personal circumstances and the independent country information on Nepal. The Tribunal member established that an initial disbelief of my credibility on one matter and failed to look at my entire evidence in a new light. The substantial conclusion reached by the Tribunal member was poor justified.”

   [Errors in original.]

2. Some of these complaints are expanded in the applicant’s affidavit, filed at the time of his application.

Before the Court

1. Before the Court the applicant appeared in person. He was assisted by an interpreter in the Nepali language. Mr J Pinder appeared for the first respondent.

2. The applicant told the Court that he had received some assistance in drafting the grounds before the Court from another person. This person was not a lawyer. The applicant said he did not agree with the Tribunal’s decision and he believed that the Tribunal had fallen into an error of law. Unfortunately for the applicant, when asked to describe the nature of that error of law, he merely expressed disagreement with the factual findings made by the Tribunal. That is, that the Tribunal did not believe that he had been a member of the RPP party in Nepal.

3. The applicant asserted that what he told the Tribunal was true. Unfortunately for the applicant, this complaint does not rise above a request for this Court to engage in impermissible merits review of the Tribunal’s decision (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”)). The applicant also complained that there had been a breach of natural justice, in that the Tribunal did not look at country information properly and that the decision was based on one report only (see below).

Consideration

1. Ground one asserts that the Tribunal dealt with his claim to fear harm as a monarchist as part of, and arising from, his membership of the RPP. The complaint is that this was a separate basis on which he said he feared persecutory harm.

2. In his affidavit the complaint is different, and to a large extent contradictory. Namely that the Tribunal failed to address his claim to fear persecutory harm on the basis of his political opinion as a monarchist.

3. The first therefore is a complaint that the Tribunal misunderstood or misconstrued his claim and therefore did not properly deal with it. The second that it actually failed to deal with a claim made. No legal authorities are cited but this appears to be a complaint asserting error as explained in such authorities as NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27.

4. Whichever of the two the applicant seeks to press, neither complaint is made out. Beyond assertion, the applicant does not refer to the Tribunal’s analysis, nor in any other way explain how the Tribunal failed in this regard.

5. On any plain reading of the Tribunal’s decision record, it accurately recorded the applicant’s claims as set out in his statutory declaration. The Tribunal’s account of the hearing conducted with the applicant and his adviser remains unchallenged before the Court by any evidence to the contrary.

6. The adviser’s submissions, to the extent that they raised “new” claims on behalf of the applicant (claims of which the applicant apparently had no prior knowledge), were referred to at the hearing.

7. On any plain reading of the Tribunal’s analysis it is clear the Tribunal well understood the applicant’s claims in this regard. It dealt with those claims as put by the applicant and the attempts by the applicant and his advisor to explain them at the hearing, and separately by the advisor in writing.

8. The Tribunal rejected the truthfulness of the entire relevant factual basis of the applicant’s claims to fear persecutory harm in Nepal. It said at [65] (at CB 319):

   “In the present case, as I put to the applicant, I do not accept that he is telling the truth about his involvement in the RPP and the problems he claims to have had because of his involvement in the RPP and his support for the monarchy in Nepal…”.

9. See further at [70] and [71], and then at [77]:

   “… For the reasons given above I do not accept that the applicant is or ever has been a member or supporter of the RPP or a supporter of the monarchy, a constitutional monarchy or liberal democracy, nor that any member of his family is or ever has been a member or supporter of the RPP or of the monarchy…”.

10. Further, the Tribunal gave cogent reasons for its disbelief of the applicant, a finding which was open to it on what was before it and which fell within the exercise of its function as the relevant finder of fact, including findings on credibility (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405 (“Durairajasingham”)). Ground one is not made out.

11. Ground two is an extension of ground one. The claim is that the Tribunal did not properly consider his claims by engaging in an active intellectual process in dealing with his claims separately.

12. This ground, in the circumstances, must fail.

13. First, the Tribunal did address the applicant’s claims as put by him (see ground one above).

14. Second, as the Minister submits, given that the Tribunal did not fail to take into account any relevant consideration, that is an integer of the applicant’s claims, as it is statutorily compelled to do, then whatever is meant by “active intellectual process” does not, on its own, establish jurisdictional error (Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299).

15. Third, as the High Court said in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 85 ALJR 306; (2010) 273 ALR 122 (at [30]), with reference to Swift v SAS Trustee Corporation [2010] NSWCA 182 (at [45]) in relation to the notion of “proper genuine and realistic consideration”, the Court said:

    “That which had to be properly considered was ‘the merits of the case’. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review”.

16. On any plain reading of its decision record the Tribunal properly considered the merits of the applicant’s case as put by him. That is, that he was a member and supporter of the RPP and a supporter of the Nepalese monarchy. The applicant’s claim that the Tribunal did not consider the latter as a separate basis for the fear of persecution is not made out.

17. It is not clear quite what the complaint is in ground three. The applicant asserts that the evidence the Tribunal relied on was unreasonable or inadequate. Given that the evidence the Tribunal relied on for the most part was the applicant’s own evidence, then the applicant has supplied the answer as to why he was unsuccessful before the Tribunal. What this complaint does not do is reveal legal error on the part of the Tribunal.

18. To the extent that the Tribunal relied on independent country information in relation to its conclusion that the applicant had a legally enforceable right to enter and reside in India, the applicant does not say why or how this information was “unreasonable” or “inadequate”. The claim of inadequacy, as it appears in the written grounds of the application, may be explained by the applicant’s statement before the Court, to which I referred to earlier, that the Tribunal based its decision on one report only, and that therefore it was “inadequate” in that sense.

19. In any event the choice, judgment as to accuracy, and weight to be given to country information is a matter for the Tribunal as the relevant decision maker (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] and VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 at [32]). The complete answer to the applicant’s complaint in this regard is contained in the proposition that I have just enunciated. No error is revealed in this regard.

20. Ground four of the application appears to have three limbs. The first, which is no more than the applicant’s disagreement with the Tribunal’s decision, seeks merits review and fails for that reason (Wu Shan Liang).

21. The second asserts that the Tribunal ignored that the applicant is a monarchist. This fails at the factual level for the reasons already set out above.

22. The third asserts a failure to act fairly. If this is a reference to the outcome, which appears to be the way that the applicant expressed his complaint before the Court today, then the Tribunal’s duty is to act fairly as to its procedures, not as to the outcome (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1).

23. However, if this is an assertion of a breach of the rules of natural justice at common law, then it mirrors the complaint in ground seven. It also fails to reveal jurisdictional error in the Tribunal’s decision.

24. First, this is a case where s.422B of the Act applies to make the matters set out in Div.4 of Pt.7 of the Act the exhaustive statement of the natural justice hearing rule in relation to the matters dealt with in that Division (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 84 ALJR 507; (2010) 267 ALR 204).

25. No failure pursuant to Div.4 is evident from what is before the Court. The applicant was invited to a hearing pursuant to s.425. The invitation complied with the requirements of s.425A, s.441A, s.441C and reg.4.35D(b) of the Migration Regulations 1994 (Cth).

26. As referred to above, the Tribunal squarely exposed the determinative issues to the applicant at the hearing and he was given the opportunity to respond (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592).

27. I agree with the Minister that the obligation in s.424A was not enlivened. No other relevant section of the Division has been breached.

28. For that matter, nor can I see that any breach of procedural fairness obligations at common law has occurred. To the extent that the applicant asserts that the Tribunal’s alleged failure to understand he was a monarchist amounts to a failure of fairness, then this fails at the factual level.

29. The allegation (in ground seven) that there was a breach of the rules of natural justice because the Tribunal did not come to a conclusion as to whether he was a “victim” of the Maoists or protected by the authorities must be rejected.

30. First, such an allegation is not a matter particularising any breach of natural justice. It is in fact a challenge to the Tribunal’s conclusion inviting impermissible merits review.

31. Second, it ignores the basis of the Tribunal’s decision. The Tribunal found, as was open to it on what was before it, and for which it gave cogent reasons, that the applicant was not telling the truth in, amongst other things, claiming to have been a member of the RPP, to be a monarchist, and to have suffered harm as a result.

32. The Tribunal did not disbelieve the applicant on “one matter”, as is asserted. It comprehensively found that his entire claim was a fabrication. On what is before the Court no error is revealed.

1. Ground five appears to take issue with the Tribunal’s finding that he was not a member of the RPP and takes issue with the Tribunal’s view of the applicant’s evidence in this regard.

2. Again, as set out above, no error is revealed in circumstances where the Tribunal has made findings of fact, including findings on credibility, which were open to it and for which it gave reasons (Durairajasingham).

3. The Minister submits that this complaint is an assertion that the Tribunal made an error in a finding of fact. To that extent the Minister is correct in submitting that there is no error alone in making a wrong finding of fact (MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at [28]).

4. It is unclear what the exact nature of the complaint is in ground six. Whoever drafted this for the applicant appears to have sought to put together profound sounding phrases that, unfortunately for the applicant, do not actually allege any recognisable assertion of jurisdictional error on the part of the Tribunal. Nor could the applicant assist before the Court today in relation to this ground.

5. The assertion that a holistic reading of the Tribunal’s decision record reveals an “absence of any pertinent findings and discussion about my claims” such that it gives rise to an inference that the Tribunal overlooked his claims is, quite frankly, a complete misrepresentation of what the Tribunal has done.

6. The Tribunal did not overlook any claim or aspect of any claim. It considered all of the applicant’s evidence and gave cogent reasons for its disbelief of it. No error is revealed. Ground six is not made out.

7. The applicant’s affidavit appears to raise further complaints, and given that the applicant is unrepresented before the Court, I did consider whether any of these complaints could possibly reveal jurisdictional error on the part of the Tribunal.

8. The applicant asserts that the Tribunal made a finding that the applicant could avoid persecution by relocating within Nepal. The applicant asserts that this finding was not a discrete and severable finding from the basis of the Tribunal’s decision, and therefore infected the decision as a whole.

9. A significant, if not insurmountable difficulty, for the applicant is that the Tribunal did not make any such finding. Further, it did not need to do so as the Tribunal’s reasons for decision were that it comprehensively rejected the applicant’s factual claims to fear persecutory harm in Nepal, and in the alternative, found he had a right to reside in India.

10. In these circumstances not only was there no such finding, nor in the circumstances the need for any such consideration, but there was no obligation on the Tribunal to consider relocation within Nepal (WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [41]).

11. The applicant also complains that the Tribunal did not consider the applicant’s unwillingness to avail himself of state protection, and somewhat in contradiction that it nonetheless applied the wrong test in that regard.

12. Again, the difficulty for the applicant is that, having rejected the factual basis for the applicant’s claimed fear of harm, there was no requirement for the Tribunal to consider the question of state protection. In the current case there was no need for the Tribunal to consider whether Nepal complied with international standards in the provision of adequate protection because, in finding that the applicant had no real chance of suffering harm because his factual claims were not to be believed, the applicant plainly was in no need of any such protection.

13. The complaint that the Tribunal misunderstood the test plainly is not made out.

14. In a wide ranging but largely, in terms of asserting legal error, incoherent statement, the applicant complains that the Tribunal failed to have regard to statutory procedures. No particulars are provided. For the reasons already referred to above, this complaint is not made out.

15. The complaint that the Tribunal had no evidence to justify its decision misunderstands the statutory task set for the Tribunal. The Tribunal is not required to disprove an applicant’s claims. It is for the applicant to put forward his claims and for the Tribunal to properly consider them and to reach a requisite level of satisfaction such that the visa must be granted (ss.65, 36(2), SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]- [16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]- [5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

16. That the Tribunal could not be so satisfied does not, on its own and in the circumstances, reveal legal error.

17. In any event there was evidence before the Tribunal to explain its decision and on which the decision was based. Broadly, there were two sets of such evidence: the applicant’s own evidence, and country information. That the Tribunal did not find this persuasive to the applicant’s cause does not on its own reveal legal error.

18. The applicant also complains, as he did again today, that the Tribunal did not conduct a thorough analysis of country information and did not make a proper, genuine and realistic assessment of the risk of serious harm in light of that country information.

19. First, as already referred to above, the choice, use and weight to be accorded to country information is for the Tribunal.

20. Second, in relation to circumstances in Nepal, the Tribunal rejected the applicant’s factual claims. In this regard the claim that there was country information to support the applicant does not rise above a request for impermissible merits review.

21. In relation to its finding that the applicant had a legally enforceable right to enter and reside in India, the Tribunal plainly had regard to country information.

22. The Tribunal considered both the relevant Treaty of Peace and Friendship between the two nations, and other relevant independent country information from the Australian Department of Foreign Affairs. No error is revealed in this regard (see SZGXK v Minister for Immigration & Citizenship [2008] FCA 1891, especially at [33] per Graham J).

23. As the Minister submits, the question as to whether the applicant had the right to enter and reside in India was a question of fact for the Tribunal (V856/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 1018; (2001) 114 FCR 408 at [27] per Allsop J, Applicants inV 722 of 2000 v Minister for Immigration & Multicultural Affairs [2002] FCA 1059 at [32] per Ryan J, SZERD v Minister for Immigration & Multicultural Affairs [2006] FCA 560, SZFBO v Minister for Immigration & Multicultural Affairs [2006] FCA 291 at [26] per Emmett J and SZGBY v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 35 at [9] per Moore J).

24. I cannot see error in how the Tribunal approached its relevant consideration involving ss.36(4) and 36(5) of the Act (see [78] at CB 322 to [83] at CB 323).

25. Further, there is no error in the Tribunal’s rejection of the submission made by the applicant’s representative as to the approach to be taken in the assessment under s.36(3) (see SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97; (2010) 187 FCR 109; (2010) 272 ALR 59 at [26] – [47] per Rares J, [82] and [88] – [109] per Flick J).

26. The “reasonableness of relocation” approach, or assessment, advocated by the representative does not apply. Section 36(3) of the Act requires the Tribunal to focus on the right to enter and reside, not on the consequences of entering and residing (NBLC; NBLB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 272; (2005) 149 FCR 151 [60] to [72] per Graham J (Wilcox J agreeing) and at [22] to [27] per Bennett J.

Conclusion

1. For the applicant to succeed the Court would need, at the very least, to discern jurisdictional error in the Tribunal’s decision. No such error is evident either as asserted by the applicant or otherwise. The application therefore is to be dismissed.

Costs

1. The Minister has asked that the applicant pay some of the legal costs incurred by the Minister. The request is that the amount be fixed in the amount of $4,800. The applicant made no submission of assistance. There are two things that I now need to consider. The first, whether I should make such an order. The second, if I determine that a costs order should be made, if the amount sought by the Minister is reasonable in the circumstances of the case.

2. I cannot see any reason not to make the order sought by the Minister. As Mr Pinder submitted, costs follow the event and in this case the applicant has been unsuccessful. As to the amount, I am satisfied in all the circumstances, having regard to the actual work that has been done by the Minister’s representatives, as is evident from what has been filed in this Court, that the amount sought is reasonable amount in those circumstances. I will make the order fixed in that amount.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  17 March 2011