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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming political persecution in Bangladesh - no reviewable error found.

NABK v Minister for Immigration [2003] FMCA 174 (1 May 2003)

NABK v Minister for Immigration [2003] FMCA 174 (1 May 2003)
Last Updated: 28 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NABK v MINISTER FOR IMMIGRATION
[2003] FMCA 174



MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming political persecution in Bangladesh - no reviewable error found.

COSTS - Application for review lacking in substance - whether respondent entitled to indemnity costs.



Applicant:
NABK



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ1069 of 2002



Delivered on:


1 May 2003



Delivered at:


Sydney



Hearing date:


1 May 2003



Judgment of:


Driver FM



REPRESENTATION

Applicant appeared in person

Counsel for the Respondent:


Mr S Lloyd



Solicitors for the Respondent:


Sparke Helmore



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 in the sum of $3,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ1069 of 2002

NABK


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 12 August 2002. The decision was communicated to the applicant by letter dated 3 September 2002. There appears to be a technical error in the date stamp appearing on the face of the decision which records a date of handing down of 3 August 2002, but I take that to be a reference to 3 September 2002. The applicant applied in the Federal Court of 26 September 2002 to review the decision of the RRT.

2. The application was transferred to this Court by order of His Honour Moore J on 17 October 2002. In transferring the matter, Moore J ordered the applicant to file an amended application and any evidence on which he proposed to rely by 6 December 2002, and also to file and serve written submissions five working days before the hearing date. The only documents filed by the applicant are his application and a supporting affidavit filed on the same day as the application. Notwithstanding with the non-compliance with the orders made by Moore J, I have elected to hear the application today.

3. I gave the applicant an opportunity to put submissions to me after explaining the nature of these proceedings. He elected to rely upon his application and supporting affidavit. Mr Lloyd, who appeared for the respondent Minister, relied upon his written submissions filed on 23 April 2003. I find myself in complete agreement with Mr Lloyd's submissions and I adopt paragraphs 2 to 13 of those submissions for the purposes of this judgment:

The applicant, who is a Bangladeshi national, applied for a protection visa on 18 May 2000.

The application was refused by a delegate of the Minister on 4 July 2000.

The applicant applied to the RRT to review the delegate's decision on 21 July 2000.

The applicant attended a hearing before the RRT on 7 August 2002.

The applicant claimed to be a member of the Jatiya Party and to have suffered harm at the hands of a Mr Mukit Miah, a member of the Awami League. This harm was said to have taken the form of threats, attacks, allegations of murder (leading to an arrest warrant being issued against him).

The RRT handed down its decision on 3 September 2002. In brief, the RRT did not believe the applicant's claims. This was primarily on the basis of the applicant's answers to questions at the hearing and the inherent implausibility of the applicant's story.

The application contains five grounds. The first alleges a failure to observe procedures required by the Migration Act 1958 (Cth). This ground has no particulars. There is no case for the respondent to answer.

The second alleges that the RRT did not give the applicant an opportunity to comment upon materials used by the RRT. Again, there are no particulars. Moreover, there is no evidence to support this allegation, notwithstanding that the applicant agreed to file any evidence by 6 December 2002, in consent orders made on 17 October 2002. Furthermore, the RRT's reasons turn upon the rejection of the applicant's claims for implausibility and not on any "materials". Hence, there has been no practical unfairness on any view. Finally, the applicant has not identified what, if anything, he might have said if he had had the opportunity he says he was denied.

The third ground appears to allege that certain DFAT materials were biased and out of touch with reality. First, the case does not turn on any DFAT materials. In any event, error in such materials does not constitute a jurisdictional error made by the RRT.

The fourth ground says that the RRT did not consider the applicant to be a refugee under the Convention. This is correct. However, it does not reveal a jurisdictional error on the part of the RRT.

The fifth and last ground alleges a denial of natural justice, which when explained is a disagreement with the RRT's conclusions on the evidence. It does not reveal a jurisdictional error.

4. The applicant has failed to demonstrate any ground of review justifying interference with the decision of the RRT. In the absence of any demonstrated jurisdictional error, the decision of the RRT is protected by the privative clause in s.474 of the Migration Act. There is no suggestion that the Hickman provisos to the privative clause are not satisfied. It appears that while the applicant is dissatisfied with the decision of the RRT, he is simply dissatisfied with the outcome. I will therefore dismiss the application.

5. On the question of costs, Mr Lloyd seeks an order for costs and submits that an order in the sum of $4,000 would be appropriate. The applicant did not wish to make any submissions to me on costs. I am satisfied that an order for costs should be made. However, in my view an order for costs in the sum of $4,000 would be somewhat excessive, when comparing this matter with other matters of similar complexity. As against that, the conduct of these proceedings indicates that the application always lacked any substance. There is some force in the view that in these circumstances, the Court is entitled to express some disapproval about the conduct of proceedings that lack and always lacked merit.

6. It is open to me to make an indemnity costs order. Having regard to Mr Lloyd's instructions, an indemnity costs order would call for a payment of costs in the vicinity of $4,000. In ordinary circumstances, on a party basis, I would have thought that an order for costs in the sum of $2,500 would be adequate. In the circumstances of this matter, I am persuaded that an order somewhat higher is justified. I will order that the applicant pay the respondent Minister's costs and disbursement of and incidental to the application, which I fix in the sum of $3,000.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 22 May 2003
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