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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.

NASM v Minister for Immigration [2002] FMCA 345 (5 December 2002)

NASM v Minister for Immigration [2002] FMCA 345 (5 December 2002)
Last Updated: 13 January 2003

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 factor in coming to its decision.

5. It is true that there is no specific mention of that statement in the reasons for decision of the RRT. However at page 7 of those reasons, (court book, page 79), the presiding member clearly deals generally with the applicant's claims arising out of his asserted involvement with the LTTE. The presiding member clearly did not accept the assertions made by the applicant. Given that the presiding member did not accept those assertions, it was not necessary for the presiding member to consider the risk factor that would arise from such an involvement.

6. The presiding member, however, went on to say that even if he was wrong in rejecting the applicant's assertions about his involvement with the LTTE, the applicant had left India on a number of occasions without difficulty which, in the view of the presiding member, indicated that he was of no interest to the authorities. The presiding member also found that even if he was wrong on that matter and that if he faced risk in his home area in Chennai in Tamil Nadu State, he could reasonably relocate to another area within India. I find, therefore, that there was no error of law by the RRT in not dealing specifically with the risk factor raised by the applicant of involvement with the LTTE.

7. Mr Bharati also submitted that the RRT committed an error of law in not giving advance notice to the applicant of the matters he would need to establish in order to qualify for a protection visa. In my view, there is no obligation on the RRT to give such advance notice, although it may chose to do so in particular cases. The scheme of the legislation establishes clearly, in my view, that it is for applicants to establish that they are persons to whom Australia has protection obligations under the Convention. The role of the RRT is to test the matters raised by applicants in support of an application. While it may assist that process to give applicants advance notice of what they need to establish, I do not see any legal obligation arising out of the Migration Act or elsewhere for that to be done.

8. Other matters raised by Mr Bharati in his written submissions appear to be encompassed in his abandonment of procedural fairness and bad faith as grounds of review. He did assert that there was a summary disappointment of a legitimate expectation held by the applicant that he would be dealt with fairly, including having all of his evidence considered, and knowing what he needed to establish in order to obtain a protection visa. However, in my view, notions of legitimate expectation fall into the same category as notions of procedural fairness. It is clear from the decision of the Full Federal Court in NAAV v Minister for Immigration [2002] FCAFC 228 that procedural fairness is no longer an available ground of view. That much was admitted by Mr Bharati.

9. In Lachmi v Minister for Immigration [2002] FMCA 19 I also found that an argument based on legitimate expectation was no longer available following the enactment of the privative clause. I maintain that view.

10. Accordingly, I am satisfied that no reviewable ground has been advanced for interfering with the decision of the RRT and in the circumstances I must dismiss the application.

11. Mr Kennett has sought an order for costs on behalf of the Minister. This was resisted by Mr Bharati on the basis of the applicant's lack of means. In accordance with the general principle that costs follow the event, in my view, the Minister is prima facie entitled to an order for costs. Nothing arises in this case that would disentitle the Minister to such an order. I will therefore make an order for costs.

12. The case is what might be described as a case of average difficulty in this jurisdiction in this Court. Typically, in such cases costs orders are made in the range of $3,500 to $4,000 on a party party basis. I will therefore make an order that the applicant pay the Minister's costs and disbursements of and incidental to this application, which I fix in the sum of $3,700.


I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 20 December 2002
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