NAKX of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1488rn

FEDERAL COURT OF AUSTRALIA

NAKX of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1488

MIGRATION – judicial review of decision of Refugee Review Tribunal – whether Tribunal Member erred in rejecting applicant's claims of persecution – Tribunal Member disbelieved applicant's claim of homosexuality – whether Member acted in good faith – no error made out NAKX OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N534 OF 2002

MADGWICK J 20 NOVEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N534 OF 2002

BETWEEN: NAKX OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE OF ORDER: 20 NOVEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for an adjournment be refused. 2. The application be dismissed. 3. The applicant pay the respondent's costs. 4. Leave is granted to the respondent to file and serve (or explain non-service) within 21 days any application for costs in relation to the applicant's former counsel. 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 N534 of 2002

BETWEEN: NAKX OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE: 20 NOVEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") of 15 April 2002, which affirmed the decision of the delegate of the respondent Minister not to grant the applicant a protection visa on account of his alleged refugee status. 2 The grounds of the application are said to be as set out in an accompanying affidavit. These grounds allege firstly an error of law "being an error involving an incorrect interpretation of the applicable law or an incorrect application of law to the facts as found by the Tribunal" because the Tribunal had reached the conclusion that the applicant was not a homosexual although there was no evidence to support that conclusion. The applicant claimed that "the Tribunal erred in completely rejecting the whole of the applicant's evidence without any good reason". 3 Further, it was said that the Tribunal failed to apply the correct tests to determine whether the applicant had a well founded fear of persecution, applied incorrect criteria in reaching its determination and "consequently failed to determine the applicant's claim for a protection visa in accordance with its mandate and as required by law". There is then a more or less incomprehensible complaint that there was no evidence to support what was actually advice from Australia's Department of Foreign Affairs as to there being no examples of actual prosecutions as distinct from arrests of consenting adult males for engaging in "unnatural" acts. The applicant said that there was no evidence to support the conclusion reached by the Tribunal and that he had not been provided with any information with respect to evidence the Tribunal was relying on to reach that conclusion. The evidence to which I have referred was in fact the evidence that supported the Tribunal's conclusion on that matter. 4 It was then claimed that the Tribunal erred in interpreting information from the Department of Foreign Affairs and that the Tribunal erred in making its finding of fact "based on the decision of another Tribunal in another matter and failed to consider the evidence which supported the Applicant's claim". This was presumably a reference to an earlier decision of the Tribunal differently constituted, also unfavourable to the applicant, which he successfully challenged in this Court. 5 Next, there is a suggestion that the applicant had been denied natural justice, but this is described in such terms that the complaint appears to have little to do with natural justice and simply complains of unfairness in factual findings. The next ground asserts failure "to carry out the task mandated by the Act" by reason of the Tribunal having failed to take into account relevant matters and take into account irrelevant matters. The final ground taken is "the Tribunal failed to complete its task mandated by the Act and the Convention and so made orders without jurisdiction". 6 Unpromising as these grounds would have sounded under the Migration Act 1958 (Cth) ("the Act")before the 2001 amendments, they are even less promising thereafter. When the matter originally came on for hearing before me on 23 August 2002, the applicant's counsel was unfamiliar with the then recent decision in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. I adjourned the matter to permit counsel to familiarise himself with that case and to make further written submissions. 7 Some further written submissions were filed on 6 September 2002 which are remarkable for their brevity and generality. The operative part is as follows: