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MIGRATION - Review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa - operation of the privative clause in the Migration Act 1958 (Cth) - whether any reviewable error disclosed by the decision of the RRT - applicant from China - whether the applicant was denied procedural fairness.

NACG v Minister for Immigration [2003] FMCA 239 (29 May 2003)

NACG v Minister for Immigration [2003] FMCA 239 (29 May 2003) Last Updated: 1 August 2003 FEDERAL MAGISTRATES COURT OF AUSTRALIA NACG v MINISTER FOR IMMIGRATION [2003] FMCA 239 MIGRATION - Review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa - operation of the privative clause in the Migration Act 1958 (Cth) - whether any reviewable error disclosed by the decision of the RRT - applicant from China - whether the applicant was denied procedural fairness. Federal Court of Australia Act 1976 (Cth), s.32AB Judiciary Act 1903 (Cth), ss.39B; 44 Migration Act 1958 (Cth), ss.91X; 474; 476; 483A; 484 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 Lobo v MIMI [2003] FCA 144 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 MIMIA v SBAN [2002] FCAFC 431 Johnson v Johnson (2000) 174 ALR 655; FLC 93-041 Applicant: NACG Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS File No: SZ 1279 of 2002 Delivered on: 29 May 2003 Delivered at: Sydney Hearing date: 26 March 2003 Judgment of: Scarlett FM REPRESENTATION The Applicant: In person Counsel for the Respondent: Mr Bromwich Solicitors for the Respondent: Blake Dawson Waldron ORDERS (1) The Application is dismissed (2) The Applicant is to pay the Respondent's costs of the application, assessed at $4850.00. He is allowed four (4) months to pay. FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY SZ 1279 of 2002 NACG Applicant And MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent REASONS FOR JUDGMENT Application 1. This is an application by the applicant, who is identified only by the letters NACG, for review of a decision by the Refugee Review Tribunal (hereafter referred to as "the RRT") about the refusal to grant a protection visa to him. The applicant is identified in this way rather than by the use of his name by reason of section 91X of the Migration Act 1958, the relevant parts of which provide that the Court must not publish the name of an applicant for a protection visa. 2. The applicant has made a written submission in this matter, as has Counsel for the respondent. There are no issues of fact in this matter. Background 3. The applicant is a citizen of China. He was born on 28th December 1978, so he is now 22 years of age. The applicant arrived in Australia legally, on 6th January 2002. He had been granted an Australian Student Visa. On 30th January 2002 he applied for and was granted a temporary class TU subclass 573 visa. Both of his visas expired on 28th July 2002. 4. The applicant obtained the degree of Bachelor of Engineering in China in 2001. He applied for a further visa on 12th July 2002 in order that he could obtain the degree of Master of Computer Science and Engineering. He also wished to study English. 5. When the applicant applied for his visa on 12th July 2002 he provided an International English Language Testing System (IELTS) report form certificate. This certificate was discovered to be a fake, in that the scores had been changed. The applicant admitted to an officer of the DIMIA that he had purchased the fake certificate. He was granted an extension of his visa until 31st July 2002, but was taken into immigration detention shortly afterwards. 6. The applicant applied for a protection visa on 12th August 2002, but it was refused on 15th August. He then sought a Review by the RRT, but on 19th September the RRT affirmed the decision not to grant a protection visa. 7. On 22nd November 2002 the applicant made application to the Federal Court for a review of the RRT's decision. The application was transferred to the Federal Magistrates Court for hearing and was listed for hearing on 21st May 2003. 8. Because the applicant was an inmate of an immigration detention centre, the Court made arrangements for an earlier hearing date, and the matter was relisted for hearing on the afternoon of 26th February 2003. On that date, the applicant appeared but there was no Mandarin Interpreter available, despite the fact that one had been ordered. 9. The application was adjourned to 26th March 2003 and a Mandarin Interpreter was ordered. The application was heard by this Court on that date, and adjourned to the 29th May for judgment. Jurisdiction 10. The Federal Magistrates Court has been given the same jurisdiction as the Federal Court in relation to a matter arising under the Migration Act, by virtue of section 483A of the Act. Section 484 states that this Court and the Federal Court have exclusive jurisdiction in relation to privative clause decisions, other than the jurisdiction of the High Court of Australia. 11. Privative clause decisions are defined by section 474 of the Act: "(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. (2)In this section: Privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)." 12. Under the provisions of section 474 (2) of the Act, the decision by the RRT is a "privative clause decision". As a result of the legislative change made by the Migration Legislation Amendment (Judicial Review) Act 2001, where a person makes an application to review a privative clause decision on or after 2nd October 2001, the Federal Court, and therefore the Federal Magistrates Court, only has jurisdiction in respect of the proceeding pursuant to sections 39B or 44 of the Judiciary Act 1903. Section 475A of the Act provides: "Section 476 does not affect the jurisdiction of the Federal Court under section 39B or 44 of the Judiciary Act 1903 or section 39 of the Federal Magistrates Act 1999, or the jurisdiction of the Federal Magistrates Court under section 483A of this Act, section 44 of the Judiciary Act 1903 or section 32AB of the Federal Court of Australia Act 1976, in relation to: (a) a privative clause decision that is a decision made on a review by a Tribunal under Part 5 or 7 or section 500; or (b) any other decision in respect of which the court's jurisdiction is not excluded by section 476". 13. Section 476 of the Act provides that the Federal Court and the Federal Magistrates Court do not have any jurisdiction in relation to a primary decision. A primary decision is defined by subsection 476(6) as: "a privative clause decision: (a) that is reviewable, or has been reviewed, under Part 5 or Part 7 or section 500; or (b) that would have been so reviewable if an application for such review had been made within a specified period." 14. The Federal Magistrates Court has jurisdiction to grant prerogative relief pursuant to section 39B of the Judiciary Act 1903. That jurisdiction, similar to that conferred on the High Court by section 75(v) of the Constitution, permits the Court to grant prerogative relief by way of prohibition or mandamus, or by way of an injunction about a decision of an officer of the Commonwealth. The grounds of the application 15. The applicant claims that he has a fear of persecution as a result of his involvement as secretary of an anti-corruption set up by his father. The association had apparently been successful as several people were arrested and questioned about their involvement in corrupt practices. This caused a number of people to send his father death threats, and he was harassed at work. 16. The applicant told the RRT that in May of last year his mother told him that the police had raided the family's home looking for documents, but had not found anything. His father was taken for interrogation by the police, but was released the following night. The applicant also said that his family rang him in late August or early September to tell him not to return to China, because his father and several other people had been arrested and charged with conspiracy against the government. His mother said that they faced serious torture and many years' jail. As a result of this news, the applicant fears that his life and liberty will be in danger if he returns to China; he fears that he will be facing years of torture and imprisonment. 17. The RRT affirmed the decision not to grant a protection visa to the applicant. The RRT found that there was no independent evidence that suggested that the mere holding of a pro-democracy opinion was likely to result in harassment by Chinese authorities. The tribunal also noted that the applicant had experienced no trouble in obtaining a passport for private travel outside China, which tended to show that he was not regarded as a high-profile dissident. 18. The main difficulty that the applicant had was that the RRT found that he was not a credible witness. The decision notes at page 17: "Some of the key aspects of his testimony and some of his claims were simply not plausible. There was a recent invention." 19. The RRT found that the applicant's four-page typed statement was not believable. The applicant's claims were found to be at odds with independent evidence considered by the RRT. The RRT found that the applicant's demeanour cast doubt on his credibility. All in all, the applicant's claims were not found to be credible and the RRT was not satisfied that he had a well-founded fear of persecution due to political opinion or any other reason. The applicant's submission 20. The applicant made an oral submission with the assistance of a Mandarin interpreter. He was not legally represented. He said that he had written letters whilst in detention. His submission included copies of the letters he had written to various politicians. The applicant told the Court that he and the other detainees who had written a letter with him were willing to go to remote areas and help build Australia. They would rather face challenge than go back to their respective countries. 21. In his written submission, the applicant claimed that the RRT hearing insulted his dignity and led to an unfair decision. When asked by the Court why he thought his dignity had been insulted, the applicant said that he was criticised for his delay in answering questions. His explanation for that was that he needed time to think about the questions. He thought the RRT thought he was lying but he was telling the truth. 22. The applicant complained that he was not allowed to speak in English at the RRT hearing. It was his opinion that if he spoke English at times it would be more direct. He felt nervous during the hearing and felt that the RRT regarded his as if he were a criminal. 23. The applicant claimed that it was illegal for the RRT to give him a decision on the same day as the hearing. He regarded a quick decision as evidence that the RRT had prejudged his claim. The respondent's submission 24. Mr Bromwich, counsel for the respondent, made a written submission, and then spoke briefly to that submission. In his written submission, Mr Bromwich referred to the applicant's apparent claim of bias by the RRT, but submitted that there was no substance to that claim. The RRT was required to consider the claims being made and give the applicant the opportunity to meet any concerns that might be held. This did not amount to apprehended bias. If apprehended bias cannot be established, then actual bias must also fail. 25. Counsel for the respondent relied on the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, where Heerey and Kiefel JJ, in a joint judgment, considered the situation where bad faith may manifest itself in the form of actual bias. They defined actual bias as "A state of mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented."[1] 26. Their Honours went on to point out this important fact about RRT hearings: "In the particular context of reviews of decisions of the RRT it should be kept in mind that the Tribunal only embarks on a hearing when it is not satisfied on the papers that a protection visa should be granted: section 425(2)(a). Therefore, the very fact that there is a hearing necessarily involves at least some lack of satisfaction on the part of the RRT. It is in the nature of things that this may vary in degree and could amount in some cases to suspicion, or even strong suspicion. The fact that the RRT holds such a state of mind, or that it becomes apparent in the course of the hearing, does not of itself suggest actual bias in the relevant sense."[2] 27. Counsel for the respondent submitted that apart from the reference to pre-judgment, there was no error of law identified, let alone one amounting to jurisdictional error. In the absence of any other legal error being identified, the application for review must fail. 28. Counsel for the respondent submitted orally that the RRT hearing was based upon the applicant's original claim that he would be persecuted because of his involvement in an anti-corruption organisation set up by his father. The RRT heard his application for review but, in the end, was not satisfied about the credibility of his account. The fact that the decision was brought down the same day did not indicate a pre-judgment of the case, as there was ample time to make the decision. In reply, Mr Bromwich referred the Court to the decision of the High Court in Johnson v Johnson (No. 3) (2000) FLC 93-041, where it was held that Judges at trial or appellate level who in exchanges with counsel express tentative ideas which reflect a certain tendency of mind are not on that account alone to be taken to indicate prejudgment. He sought to draw a parallel with RRT hearings. Conclusions 29. I am not satisfied that there appears to have been any jurisdictional error. The privative clause in section 474 of the Migration Act applies. The following pre-conditions apply to the valid exercise of decision-making powers covered by a privative clause : a) the decision-maker is required to have made a bona fide attempt to exercise its power; b) the decision must relate to the subject matter of the legislation; c) the decision must be reasonably capable of reference to the power given to the decision-maker; d) a valid decision cannot exceed constitutional limits; and e) inviolable limits or constraints may be imposed by the relevant statute, (see R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616). 30. The short answer is that I accept the respondent's submission. It is quite clear that the major part of the applicant's case is a claim that the RRT was factually wrong. It is clear that an application to this Court is not a rehearing of the substantive issues of the case. The RRT's decision is a privative clause decision, as set out by section 474. Whilst the applicant contends that the RRT's decision is erroneous on the facts, the decision cannot be reviewed by the Court unless there has been shown to have been a breach of one of the principles referred to above. There is no evidence of such a breach. 31. I am not satisfied that the applicant has shown any bias by the RRT in the conduct of the hearing. He appears to have given his evidence and, at the end, the Tribunal was not persuaded that he had made out a case. The fact that he was questioned about his assertions does not establish any bias. As was pointed out in SBAN (supra), section 425 of the Act makes it clear that the RRT will not usually invite the applicant to appear before it to give evidence and present arguments relating to the issues if: "The Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it."[3] 32. In this case, the RRT was not satisfied on the basis of the material before it that it should decide the review in the applicant's favour, so it invited the applicant to appear before it to give evidence and argue his case. He had the assistance of an interpreter. After hearing his evidence, the RRT was still not satisfied that it should decide the review in the applicant's favour. 33. I find that the applicant is not entitled to relief pursuant to section 39B of the Judiciary Act. The application must be dismissed. 34. In this jurisdiction, costs follow the event, and, as the applicant has been wholly unsuccessful in these proceedings, there should be an order for costs in favour of the respondent. I am satisfied that costs should be assessed on the basis of stage 2 of the Federal Magistrates Court scale of costs. I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM Associate: S. Polley Date: 13 June 2003 -------------------------------------------------------------------------------- [1] At paragraph 10 of the judgment [2] At paragraph 11 [3] S. 425(2)(a)
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