FEDERAL COURT OF AUSTRALIA

NABT v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 522

MIGRATION – judicial review – appeal from decision of Refugee Review Tribunal affirming a decision of the Minister’s delegate to refuse a protection visa – applicant claimed to fear persecution if returned to Bangladesh - no reviewable error disclosed – no question of principle

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) 474(1)

NABT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 71 OF 2002

HELY J

11 APRIL 2002

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant is a citizen of Bangladesh who arrived in Australia on 20 February 1999.  Shortly after his arrival he applied for a protection visa on the ground that he had a well-founded fear of persecution for a Convention related reason, namely, his political opinion.  The application for a protection visa was refused by the Minister’s delegate on 5 May 1999 and that decision was affirmed by the Refugee Review Tribunal (“RRT”) on 11 December 2001. 

2                     On 1 February 2002 the applicant lodged with this Court an Application for an Order of Review.  The grounds of the application impermissibly invite this Court to embark upon a merits review of the RRT's decision.

3                     Before the RRT, the applicant claimed to have been an office holder in the Jatio Party who feared death if returned to Bangladesh at the hands of thugs supporting the Awami League who had attacked him in 1990 and 1998.  It was for the RRT to assess the claims which the applicant made in this respect and the RRT did so.  The RRT described the applicant's claims as being inconsistent, poorly supported, contradictory and vague.  That was an assessment which the RRT was entitled to make.  The RRT concluded that the applicant had invented his claims but had failed to consider important details in the course of his application.  Those conclusions are based on an assessment of the applicant's credibility which is a function committed to the RRT and not a  function committed to this Court.

4                     The applicant lodged with the Court a written submission dated 4 April 2002 of some six pages in length.  I have read that submission.  I will not attempt to summarise it because it is included in the Court file, but again the submission impermissibly invites this Court to engage in a merits review of the RRT's decision. 

5                     The applicant appeared for himself on the hearing of his application this morning.  The applicant does not speak English and was only able to address the Court with the assistance of an interpreter.  As the applicant's written submission makes plain, he has no legal training and is not familiar with the legal and evidentiary principles applicable to the conduct of litigation of this type in this Court.  This is understandable and the Court endeavours to do all it reasonably can to overcome the disadvantages that a person in the appellant’s position suffers from. 

6                     In his submissions, the applicant put that he came to Australia because of the political problems that he had in Bangladesh.  He told me that his eldest son was killed by members of the Awami League, the opposition party.  The truth is, he says, that if he is returned to Bangladesh the Awami League will capture him and kill him.  He claims he has no work in Australia and he is only here to save his life.  On this basis, the applicant appealed to me to return his case to the RRT for consideration.  However, nothing that the applicant has written and nothing which he put to me comes anywhere near disclosing even an arguable case for relief under s 39B of the Judiciary Act 1903 (Cth) which, in the light of the Migration Act 1958 (Cth) as it now stands, is the source of this Court's jurisdiction.

7                     Similarly, nothing which the applicant has written and nothing that the applicant has put to me establishes an entitlement on the part of this Court to remit the matter to the RRT in the light of the privative clause contained in s 474(1) of the Migration Act.  The law just does not allow me to do what the applicant seeks that I should do.  In those circumstances, I have no choice but to make an order dismissing the application for an order of review.  I make an order to that effect. 

8                     Attached to the applicant's submissions were some documents that appear to be original documents.  Those documents should be returned to the applicant and I do so. 

9                     Counsel for the Minister seeks an order that the applicant should pay the respondent's costs of this application.  The applicant tells me, and I accept, that he cannot afford to pay those costs.  That, however, is not a sufficient reason for not making an order for costs in the Minister's favour and accordingly I allow the application for costs.  Whether the Minister will ever be able to recover those costs is not a matter with which the Court has any concern.

10                  The application is dismissed with costs.

Associate:

Dated:              7 May 2002