NANW v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1128 (3 September 2002)

Last Updated: 24 October 2002

FEDERAL COURT OF AUSTRALIA

NANW v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1128

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 474

NAQG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1044 referred to

Minister for Immigration & Multicultural Affairs v Shen [2002] FCA 899 referred to

NANW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N673 OF 2002

GYLES J

SYDNEY

3 SEPTEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N673 OF 2002

BETWEEN:	NANW APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	3 SEPTEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the costs of the respondent of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N673 OF 2002

BETWEEN:	NANW APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	3 SEPTEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application said to be pursuant to s 39B of the Judiciary Act 1903 (Cth) arising out of a decision of the Refugee Review Tribunal dated 18 June 2002 which affirmed the decision of a delegate of the respondent Minister to refuse to grant the applicant a protection visa. The details of the claim are set out in the application as follows:

"1. The Tribunal did not consider the applicant as a refugee in accordance with the provisions relating to refugees.

2. The procedures that were required under the Migration Act 1958 to be observed in connection to the making of the decision were not observed;

3. The Tribunal ignored the material facts of the applicant's claim.

4. The Tribunal did not provide an opportunity for the applicant to comment on the materials which the Tribunal relied to make the decision.

5. The Tribunal brought a number of issues, which was unreasonable for this case.

6. The Tribunal failed to take into the consideration the current political atmosphere which prevailing in Bangladesh.

7. The decision of the Tribunal has not reflected the reality of the applicant's case.

8. The Tribunal have not provided an opportunity to the applicant to comment on materials which the tribunal relied its decision."

2 The applicant is unrepresented and has not been able to address any substantive argument to me as to his case. I have read the decision of the Refugee Review Tribunal. What are called the details of the claim do not isolate any appropriate or proper ground pursuant to s 39B of the Judiciary Act. Even if they are construed as liberally as possible I cannot see any basis upon which it could be suggested that those grounds could survive the application of s 474 of the Migration Act 1958 (Cth). As is now well known that section has had a very significant effect upon the availability of any application to this court in relation to decisions of the Refugee Review Tribunal. That being the case it seems to me that, no ground having been established which could possibly succeed, having in mind the provisions of s 474, in view of the total inability of the applicant to present any argument in support of his case, coupled with what appears to me to be a carefully considered and reasoned decision of the Refugee Review Tribunal, this application is hopeless and has been hopeless from the start and must be dismissed.

3 The case has involved the resources of the court in callovers and in setting aside valuable time for preparation and hearing. It has no doubt also caused resources to be expended on behalf of the respondent including the briefing of counsel. An interpreter has been provided and I notice from the stamp on the application that fees were waived. It has also involved delay between 18 June 2002 when the Refugee Review Tribunal gave its decision and today. The waste of resources and time in the consideration of cases such as this raises serious issues of public policy and administration. All I wish to add is that the time has come when the role of those who are known as `shadow advisers' needs to be very fully considered in these matters. There has been no application made to me by the respondent in this case nor was there in the case I heard earlier this morning but in situations where one finds common shadow advisers and pro forma proceedings commenced, the possibility of relief being obtained against third parties is a very real one. Branson J recently considered some of the problems arising out of this use of shadow advisers in NAQG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1044 (see also Minister for Immigration & Multicultural Affairs v Shen [2002] FCA 899).

4 The application is dismissed. The applicant is to pay the costs of the respondent.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated: 11 September 2002

Applicant appeared in person
Counsel for the Respondent:	J Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 September 2002
Date of Judgment:	3 September 2002