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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - no reviewable error found.

NAQU v Minister for Immigration [2002] FMCA 356 (5 December 2002)

NAQU v Minister for Immigration [2002] FMCA 356 (5 December 2002)
Last Updated: 17 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAQU v MINISTER FOR IMMIGRATION
[2002] FMCA 356



MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - no reviewable error found.



Migration Act 1958 (Cth), s.420(2)(b)

Applicant:
NAQU



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ869 of 2002



Delivered on:


5 December 2002



Delivered at:


Sydney



Hearing Date:


5 December 2002



Judgment of:


Driver FM



REPRESENTATION

Applicant appeared in person






Solicitors for the Respondent:


Mr R Higgins

Clayton Utz



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 $2,400.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ869 of 2002

NAQU


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This ex tempore judgment relates to a decision of the Refugee Review Tribunal ("the RRT") made on 19 June 2002 and handed down on 11 July 2002. The RRT affirmed a decision of a delegate not to grant the applicant a protection visa. The applicant applied for review of that decision on 6 August 2002. The grounds set out in his application point to merits review, with the exception of ground 3. The third ground asserts that the applicant was unable to fully present his case to the RRT.

2. I take that to be an assertion that the proceeding before the RRT was procedurally unfair. The applicant also asserts that the RRT failed to act accordingly to substantial justice and the merits of the case. I take that to be an assertion that the RRT breached s.420(2)(b) of the Migration Act 1958 (Cth) ("the Migration Act"). The applicant also asserts that he is not satisfied with the RRT member's comments regarding religious persecution in India.

3. In his oral submissions, the applicant did not point to any procedural error by the RRT. He referred rather to the risk he would face if he returns to India. He also took issue with the RRT's finding that effective state protection is available to him in India. He pointed to the destruction of the Babri or Ayodhya Mosque as showing that there is no effective state protection. That is an attack on the findings of fact made by the RRT in particular by reference to country information.

4. I am not satisfied that the issues raised by the applicant point to any legal error by the RRT. In my view, the findings made by the RRT in this matter were reasonably open to it on the material before it. I find myself in agreement with the respondent's written submissions filed on 28 November 2002. I adopt, with respect, those submissions in these reasons.

5. I will therefore dismiss this application.

6. On the question of costs, Mr Higgins has sought an order for costs on behalf of the Minister. He has indicated that costs would be in the order of $4,000. On that basis, he has requested an order for costs in the sum of $3,000. The applicant opposes an order for costs on the basis of his inability to pay. I am satisfied that in accordance with the general principle that costs follow the event, the Minister is entitled to an order for costs.

7. As to the amount, this case was relatively straightforward. Written submissions were prepared by Mr Riley of counsel which were of assistance. Mr Riley was briefed to appear today, but unfortunately he was unable to appear due to a commitment in another court. In the circumstances, it would be unreasonable to expect the applicant to bear the cost of counsel's appearance in court. Bearing in mind the relative simplicity of the proceedings and the fact that Mr Riley was unable to appear, although briefed, in my view an appropriate award of costs in this matter would be $2,400.

8. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,400.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 15 January 2003
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