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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - whether the RRT made errors of fact or law - Chinese one child policy - whether the applicant is a member of a particular social group - no reviewable error found.

NAMP v Minister for Immigration [2002] FMCA 363 (16 October 2002)

NAMP v Minister for Immigration [2002] FMCA 363 (16 October 2002)
Last Updated: 16 October 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAMP v MINISTER FOR IMMIGRATION
[2002] FMCA 363



MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - whether the RRT made errors of fact or law - Chinese one child policy - whether the applicant is a member of a particular social group - no reviewable error found.



Migration Act 1958 (Cth), ss.65, 474

Applicant A v Minister for Immigration (1997) 190 CLR 225

Chen Shi Hai v Minister for Immigration [2000] HCA 19; 201 CLR 293

NAAV v Minister for Immigration [2002] FCAFC 228

NAIN v Minister for Immigration [2002] FMCA 177

Zahid v Minister for Immigration [2002] FCA 1108

Applicant:
NAMP



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ596 of 2002



Delivered on:


16 October 2002



Delivered at:


Sydney



Hearing Date:


16 October 2002



Judgment of:


Driver FM



REPRESENTATION

Applicant appeared in person

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 $4,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ596 of 2002

NAMP


Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. I have before me for ex tempore judgment an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 14 May 2002 and handed down on 5 June 2002. At the time the application was filed, the applicant was represented by solicitors. The solicitors, however, filed a notice of withdrawal on 2 August 2002. The applicant has, in consequence, been forced to represent himself today.

2. The applicant filed an affidavit in support of his original application in which he asserted that the RRT's decision involves errors of law. In particular, the incorrect application of the principles derived from the case of Applicant A v Minister for Immigration (1997) 190 CLR 225. The applicant also asserts that he has a well founded fear of persecution in the sense of the Refugees Convention because of the discriminatory way he was and will be punished and persecuted.

3. In his written submissions, which were filed on 25 September 2002, the applicant asserts that the RRT put the wrong weight on certain facts. He also asserts that the RRT made wrong factual conclusions and further asserts that the RRT was wrong in concluding that he had not suffered adverse consequences because of the one child policy. The applicant expanded on these submissions in oral submissions before me today.

4. The Minister has, through his lawyers, filed written submissions on 8 October 2002. I accept that the factual background provided in those submissions in paragraphs 4 through to 8 is accurate. I adopt that background statement for the purposes of this judgment. I also accept that the legal submissions made by Mr Kennett on behalf of the Minister are sound. I am bound by the decision of the Full Federal Court in NAAV v Minister for Immigration [2002] FCAFC 228 which interpreted the privative clause in s.474 of the Migration Act 1958 (Cth) ("Migration Act").

5. In the light of that decision, it is only open to an applicant to challenge a decision of the RRT on limited legal grounds. Of those grounds, the applicant asserts that the presiding member was prejudiced, which amounts to an assertion of a lack of bona fides in the decision. Apart from asserting that the decision of the RRT is mistaken, the applicant has advanced nothing in order to support an allegation of bias or bad faith. The assertion that the RRT may have made errors of fact or errors of law does not establish that the decision of the RRT was not a bona fide attempt to exercise its powers. I am satisfied on the material before me that the decision of the RRT was a bona fide attempt to exercise its powers.

6. In oral argument today, the applicant has also asserted that the RRT made errors in deciding whether he had a well-founded fear of persecution. The applicant says that, in addition to making factual mistakes, the RRT made a legal mistake in failing to properly assess the question of persecution. I accept that the assessment of a claim of persecution involves a mixed consideration of fact and law. I also accept that the RRT, in exercising its powers, stands in the shoes of the original decision maker.

7. In the case of NAIN v Minister for Immigration [2002] FMCA 177, I held that in order to determine an application for a protection visa, the RRT must achieve the state of satisfaction required by s.65 of the Migration Act. I also held that s.65 was a jurisdictional pre-requisite to the exercise of the RRT's power. I added, however, that what might be described as an ordinary legal error in achieving the state of satisfaction would not invalidate a decision of the RRT.

8. It is not sufficient to establish that the RRT asked itself the wrong question or took into account irrelevant material or failed to take into account relevant material. That much is clear from the judgment of the Chief Justice in NAAV and the further explanation of that decision by his Honour Sackville J in Zahid v Minister for Immigration [2002] FCA 1108. Some more serious legal error would have to be demonstrated to support a court finding that the privative clause in s.474 of the Migration Act does not protect a decision of the RRT on the attainment of the degree of satisfaction required by s.65.

9. In this matter, the applicant has pointed to alleged factual errors. Even if the applicant could satisfy me that the RRT has made factual errors, that would not be sufficient to establish the necessary error of law that he needs to point to. In addition, the assertion that the RRT misapplied the decision of the High Court in Applicant A is, in my view, simply wrong.

10. The High Court in the case of Chen Shi Hai v Minister for Immigration [2000] HCA 19 and 201 CLR 293 did decide that children born in contravention of China's one child policy could constitute a particular social group for the purposes of the Refugees Convention. However, the High Court did not disturb the earlier finding in Applicant A that the one child law is a law of general application and that the parents of a child born in contravention of the one child policy would not constitute a particular social group.

11. In my view, the RRT correctly applied the law on this issue. No other error of law was identified by the applicant. I find that the applicant has not been able to establish any reviewable legal error in the decision of the RRT. accordingly I will dismiss the application.

12. The Minister, through Mr Kennett, has sought an order for costs, and has indicated that costs actually incurred to date would be in the order of $6,000. That includes costs thrown away by reason of the adjournment of the hearing last week. It is not appropriate that the applicant pay those costs thrown away because the adjournment was not his fault. However, it is appropriate that the applicant pay the Minister's general costs of preparing for the proceedings and being represented at the hearing today. Those costs should be assessed on a party/party basis.

13. My general practice in cases of this nature is to fix the amount of costs that are to be paid. Allowing for costs thrown away by reason of the adjournment last week, I think it unlikely that the Minister's costs otherwise would exceed $5,000. In the circumstances, I consider that an award of $4,000 is adequate compensation to the Minister on a party/party basis. I will, therefore, order that the applicant pay the Minister's costs and disbursements relating to the application, which I fix in the amount of $4,000.


I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 21 February 2003
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