NBLH v Minister for Immigration & Anor [2006] FMCA 1601

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

I have before me a show cause application relating to a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision of the Tribunal was handed down on

15 August 2006. The show cause application filed on 29 August 2006 asserts notification of the decision on 18 August 2006. On that basis I find that the application was filed within time.

When this matter first came before me on 12 September 2006 it was not apparent to me whether the show cause application raised an arguable case of jurisdictional error. I therefore directed that there be a show cause hearing today pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) and made orders for the filing of additional material. I gave the applicant the opportunity to file and serve an amended application and additional affidavit evidence, including a transcript of the Tribunal hearing, by 17 October 2006.

He did not act on those opportunities.

I also required the Minister to file and serve a book of relevant documents by 26 September 2006. That order was complied with on 22 September 2006 by the filing of the court book. A copy of the court book was served on the applicant by ordinary prepaid post to his nominated address for service by letter dated 25 September 2006.

He denies receipt of that letter. I note that the address is a post office box in Haymarket. The applicant lives in Belmore. The applicant asserted from the bar table that the post office box is his and that he has the key to it. He checks the post office box weekly. The applicant was not able to offer any explanation for his non-receipt of the court book.

I provided him with the file copy of the court book for the purposes of today's hearing. As matters turned out, the only document of significance in the court book was the Tribunal decision. The applicant already had a copy of that. It was attached to his affidavit accompanying his application. I received that affidavit as evidence to the extent that it contained statements of fact; I received it as a submission to the extent that it contained assertions of law.

The affidavit does not illuminate the grounds of review set out in the show cause application.

I invited the applicant to explain those grounds in his oral submissions. He was not able to do so apart from making claims of interpretation problems at the hearing. There are several difficulties with that assertion. The first is that there is no mention of interpretation difficulties in the show cause application or its supporting affidavit. The second is that the applicant has not taken up the opportunity I gave him to produce a transcript which might, hypothetically, have supported the assertion. The third is that the record of the Tribunal decision does not provide any support to the allegation of interpretation difficulties.

The record of the Tribunal decision does establish clearly that the applicant failed before the Tribunal because he was not believed. After listening to the applicant's evidence at the hearing, the presiding member was left in a state of complete disbelief. It is apparent that the presiding member considered that the well was poisoned and he would not continue to drink from it. The presiding member thus gave no weight to a letter which might have corroborated some of the applicant's claims, see court book page 126. Having regard to the force of the adverse credibility finding made by the Tribunal, I see no error in that approach.

The show cause application asserts a breach of the rules of natural justice. To the extent that the particulars throw any light on that assertion, they appear to relate to a failure to consider the applicant's claims in their proper context. The applicant was not able to explain this assertion further. It appears to me from the record of the Tribunal decision that the presiding member both understood the applicant's claims and considered them.

Secondly, the show cause application asserts a failure to observe procedures required by law. It appears to me from the record of the Tribunal decision that the Tribunal met its statutory obligations under the Migration Act 1958 (Cth) ("the Migration Act"). In my view, this ground is not arguable.

Thirdly, the show cause application asserts that the making of the decision was an improper exercise of the power conferred by the Migration Act. The asserted particular appears to be an allegation that the Tribunal limited itself to a consideration of unfavourable evidence. In one sense, that is true. The decision turns entirely on the evidence given by the applicant at the hearing conducted by the Tribunal.

The presiding member found that evidence to be wholly unfavourable. Where a decision-maker is left in a state of complete disbelief after hearing from an applicant, that is in my view a sufficient basis to dispose of an application.

I conclude that the show cause application fails to disclose an arguable case of jurisdictional error. Neither is any arguable claim of jurisdictional error apparent to me from the available material. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

Costs should follow the event. The Minister seeks scale costs of $2,500. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent's costs and disbursements of and incidental to the application, including any reserved costs, fixed in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM