Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

(2) Applicant to pay the respondent's costs of and incidental to the application, fixed at $3,000.

1. This ex tempore judgment relates to a decision of the Refugee Review Tribunal ("the RRT") made on 29 August 2002 and handed down on 19 September 2002. The applicant, who is a citizen of India, arrived in Australia on 2 June 2001. He lodged an application for a protection class XA visa on 28 June 2001 with the Minister's department. The application for a protection visa was refused by a delegate of the Minister and the applicant applied for review before the RRT. The RRT affirmed the delegate's decision not to grant the applicant a protection visa. The applicant's claims before the delegate and the RRT centred upon his concern that he as a Hindu would be a victim of violence by terrorists in Tamil Nadu state in India. In particular he referred to concern relating to the Al Ouma group.

2. The application filed in the Federal Court on 15 October 2002 and the supporting affidavit filed the same day have been transferred to this Court by order of His Honour Jacobson J on 1 November 2002. The application and supporting affidavit are deficient in that they do not identify anything in relation to the decision of the RRT or the proceedings before the RRT to assist the Court in determining whether any reviewable legal error is disclosed in the decision. I invited the applicant at trial this afternoon to put to me anything that might assist in identifying a legal error, but apart from reiterating his dispute with findings of fact made by the RRT, he was not able to expand upon his application and affidavit.

3. Mr Bromwich, for the respondent Minister, has submitted to me that the application must be dismissed as no reviewable legal error has been disclosed. I agree. It is apparent that the RRT formed an adverse view about the credibility of the claims being made by the applicant. The RRT also found that, in any event, the applicant could relocate within India in order to avoid the harm which he says he fears. These findings by the RRT were reasonably open to it on the material before it. I am satisfied that the RRT made no legal error going to jurisdiction in coming to its decision.

4. In addition, the decision of the RRT was a bona fide attempt to exercise its powers. The decision clearly related to the subject matter of the Migration Act 1958 (Cth) and related to the powers conferred on the RRT. I find that the decision of the RRT is a privative clause decision, having regard to the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2.

5. In the circumstances, I will dismiss the application.

6. I am satisfied that an order for costs should be made. In the circumstances of this matter, I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Driver FM