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

NANV v Minister for Immigration [2002] FMCA 261 (30 October 2002)

NANV v Minister for Immigration [2002] FMCA 261 (30 October 2002)
Last Updated: 8 November 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NANV v MINISTER FOR IMMIGRATION
[2002] FMCA 261



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



Migration Act 1958 (Cth), s.425

NAAV v Minister for Immigration [2002] FCAFC 228

Applicant:
NANV



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ671 of 2002



Delivered on:


30 October 2002



Delivered at:


Sydney



Hearing Date:


30 October 2002



Judgment of:


Driver FM



REPRESENTATION

Applicant appeared in person






Solicitors for the Respondent:


Mr R White

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 at $3,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ671 of 2002

NANV


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This ex tempore judgment relates to an application for review of a decision of the Refugee Review Tribunal ("the RRT") made on 23 May 2002. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was handed down on 18 June 2002 and the applicant sought review of that decision on 9 July 2002. The decision and reasons of the RRT, appearing in the court book at page 87, sets out the basic facts. The applicant claims to be a citizen of Bangladesh and arrived in Australia on 19 August 1999. On 30 August 1999 the applicant lodged an application for a protection visa with the Immigration Department.

2. A delegate of the Minister refused to grant the visa on 15 November 1999. On 6 December 1999 the applicant applied for a review of that decision before the RRT. The applicant's claims to a protection visa centre on alleged political activity in Bangladesh. Essentially, the applicant claims that he will suffer persecution if he returns to Bangladesh because of his association with the Jatiya Party. On 2 April 2002 the RRT wrote to the applicant indicating that it was unable to make a favourable decision on the papers and inviting him to a hearing. This appears at page 67 of the court book. On 16 April 2002 the applicant's adviser informed the RRT that the applicant did wish to attend. However, he did not attend the hearing. The court book, and it would seem the records of the RRT, do not disclose any reason for that failure to attend being given. The RRT proceeded to deal with the matter on the papers.

3. In his application and supporting affidavit the applicant sets out a number of grounds of review. The applicant may have received some assistance or advice in completing those documents, although he represented himself in these proceedings. The application asserts that the RRT failed to comply with procedures required to be observed under the Migration Act 1958 (Cth) ("the Migration Act"). The applicant asserts that the RRT ignored the merits of his claim and that the RRT did not take into consideration the current situation prevailing in Bangladesh politics.

4. Further, the applicant asserts that the RRT made errors in deciding the fate of his claim and that the RRT misjudged the fate of his claim. The applicant asserts that the RRT did not consider the evidentiary proof of his claim and did not take into consideration documents submitted by him. In his supporting affidavit, filed on the same day as the application, the applicant makes similar claims. He asserts that he was not given an opportunity to comment on materials which the RRT relied upon in making its decision. He asserts that he was denied natural justice and that the RRT exercised its power unreasonably. The affidavit otherwise repeats some of the assertions in the application and asserts generally that the RRT made a "number of errors" in deciding the fate of his claim. These assertions are not particularised.

5. On 28 October 2002 the applicant filed written submissions in support of his claim. In those submissions the applicant asserts that he is not able to adequately conduct the proceedings in this Court in person. He says that he does not have the money to appoint a solicitor. I note, however, that he has been referred for legal advice under the Legal Advice Scheme approved by the Minister in New South Wales. There is no general entitlement to legal representation in proceedings before this Court.

6. The applicant then asserts that the RRT breached the rules of procedural fairness by failing to give him an opportunity to comment on information which the RRT relied upon. There are two answers to that proposition. The first is that the applicant was invited to attend the hearing before the RRT. That invitation complied with s.425 of the Migration Act. The applicant told me from the bar table that he was ill and that he advised the RRT by telephone three days before the hearing that he would be unable to attend. However, that is not evidence and there is no evidence before me to satisfy me that the applicant was unable to attend due to illness.

7. Secondly, even if I could be persuaded that the RRT breached the rules of procedural fairness, and I am not satisfied that it did, a breach of the rules of procedural fairness is not a ground of review permitting the court to interfere with a decision of the RRT in the face of the privative clause in the Migration Act: NAAV v Minister for Immigration [2002] FCAFC 228. Similarly, the applicant's assertion that he was deprived of natural justice can be answered in the same way. Procedural fairness and natural justice are the same thing. The cases replied upon by the applicant pre-date the privative clause. Since the enactment of the privative clause, alleged breaches of procedural fairness or natural justice are not available grounds of review.

8. The other grounds advanced by the applicant in his application and supporting affidavit have not been expanded upon. I invited the applicant this afternoon to expand upon them but he was unable to do so. He did say that the RRT failed to consider submissions made on his behalf by two representatives. That is not correct. It is clear from the decision and reasons of the RRT on page 6 of the reasons for decision (court book page 92) that the two submissions were considered.

9. The applicant has not advanced anything that could sustain an assertion of a lack of good faith in the decision of the RRT. I am satisfied that the decision was a bona fide attempt by the RRT to exercise its powers under the Migration Act. I am also satisfied that there has been no breach of an inviolable pre-condition to the exercise of power by the RRT.

10. None of the other grounds of review left open following the decision of the Federal Court in NAAV are available to the applicant in this case. Accordingly, I will dismiss his application.

11. On the question of costs, Mr White has sought an order for costs on behalf of the Minister in a fixed amount of $3,500. The applicant has not advanced anything in opposition to an order for costs. In the ordinary course it is appropriate for an order for costs to be made in favour of the successful party. My general practice is to make an order for costs in a fixed amount. The Minister is entitled to an order for costs in these proceedings.

12. Mr White tells me that the actual costs incurred on behalf of the Minister are approximately $3,800. On a party/party basis an award of costs of approximately two-thirds of costs incurred on a solicitor and own client basis is adequate. In the circumstances, I will order that the application be dismissed and that the applicant pay the respondent's costs and disbursements of and incidental to the application, which I fix in the amount of $3,000.

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

Associate:

Date: 6 November 2002
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