Zaman v Minister for Immigration & Multicultural Affairs [1999] FCA 1856

FEDERAL COURT OF AUSTRALIA

Zaman v Minister For Immigration & Multicultural Affairs [1999] FCA 1856

MD SHER-E-ZAMAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1184 of 1999 LINDGREN J 16 DECEMBER 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1184 OF 1999

BETWEEN: MD SHER-E-ZAMAN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 16 DECEMBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The motion brought by notice of motion filed 10 December 1999 be dismissed. 2. The applicant pay the respondent's costs of the motion. 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 N 1184 OF 1999

BETWEEN: MD SHER-E-ZAMAN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE: 16 DECEMBER 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT (ex tempore) 1 The applicant moves by notice of motion filed on 10 December 1999 for an order that an order which I made on 4 November 1999 dismissing his substantive application be set aside. In order to deal with the motion, it is necessary to review the history of the matter.

The substantive application 2 On 14 October 1999 the applicant filed an application for an order of review of a decision of the Refugee Review Tribunal, dated 16 September 1999 affirming a decision of a delegate of the respondent Minister not to grant the applicant a protection visa. 3 The grounds of review set out in the application were as follows: "1. That the Respondent exercised power under s 431 of the Migration Act 1958 and decided that I am not a person to whom Australia has protection obligations under the Refugee Convention. 2. I certainly believe that the Department of Immigration as well as the Refugee Review Tribunal, has certainly made an error of law being an error involving an incorrect interpretation of the application of the law to the facts as found by the person who made the decision." 4 These grounds are an inadequate statement of grounds but the applicant appears in person and has not had the benefit of professional legal advice although he has apparently had the advice of a friend. Section 431 does not give a power to the respondent Minister but imposes an obligation on the Tribunal. In fact, the ground intended to be referred to was almost certainly s 430(1) rather than s 431, although s 430(1) also imposes obligations on the Tribunal and does not confer a power on the Minister. 5 A ground that has often been relied on in this Court in applications for review of the present kind is that the Tribunal did not comply with the requirements of s 430(1) (cf s 476(1)(a) of the Act). The application does not indicate any respect in which it is said that the Tribunal did not comply with 430(1). 6 The second ground set out above has no doubt been formulated by reference to s 476(1)(e) of the Act but, again, there is no attempt to identify the error of law in question. 7 Importantly for present purposes, the application continued as follows: "1. I genuinely believe that I have the substantial grounds and presented an enormous amount of evidence to the Department of Immigration and Multicultural Affairs as well as the Refugee Review Tribunal, which has incorrectly assessed my application. 2. I therefore request the Honourable Federal Court to sympathetically assess my application for a review under s 476(1)(e) of the Migration Act." 8 On the hearing of the motion this morning, the applicant said that what he really is after is a total review of his application for a protection visa. This is consistent with paragraph 1 which I have just set out. So far as I can see to date, the references to ss 431 (or s 430(1)) and s 476(1)(e) are references made, perhaps at the suggestion of the applicant's friend, in a formalistic attempt to bring the case somehow within the jurisdiction of the Court.