NAKO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1213

FEDERAL COURT OF AUSTRALIA

NAKO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1213 NAKO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N2264 OF 2003 EMMETT J 26 MARCH 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N2264 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NAKO

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 26 MARCH 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. 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 N2264 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NAKO

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 26 MARCH 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant, who is a citizen of Bangladesh, arrived in Australia on 17 October 2000. On 10 November 2000 he lodged an application for a Protection Class XA Visa under the Migration Act 1958 (Cth) ('the Act'). On 2 January 2001 a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), refused to grant a protection visa and, on 25 January 2001, the appellant applied for review of that decision. On 13 January 2003 the Refugee Review Tribunal ('the Tribunal') affirmed the decision not to grant a protection visa. 2 By application filed on 10 March 2003 the appellant sought relief in respect of the decision of the Tribunal. That matter was remitted to the Federal Magistrates Court. On 18 November 2003 Federal Magistrate Raphael ordered that the application be dismissed and that the appellant pay the respondent's costs in the sum of $4250. The appellant now appeals to this Court from the orders of the Federal Magistrates Court. Pursuant to a direction given by the Chief Justice, the matter is to be heard by a single judge of this Court. 3 In his original application to the Court, the appellant claimed relief on the following grounds: 'i. The Tribunal erred in law amounting to jurisdictional error in determining that the applicant does not have any profile that place him into fear of adverse action on his return back to the country of residence and does not meet the criterion set out in s.36(2) of Act for a Protection Visa;