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MIGRATION - Application for review of decision of the Refugee Review Tribunal - no jurisdictional error - privative clause decision - application dismissed.

NAJS v Minister for Immigration [2002] FMCA 260 (12 September 2002)

NAJS v Minister for Immigration [2002] FMCA 260 (12 September 2002)
Last Updated: 1 November 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAJS v MINISTER FOR IMMIGRATION
[2002] FMCA 260



MIGRATION - Application for review of decision of the Refugee Review Tribunal - no jurisdictional error - privative clause decision - application dismissed.



Migration Act 1958 (Cth)

NAAV v MIMIA [2002] FCAFC 228

R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598

R v MIMIA; Ex parte Durairajasingham (2000) 16 ALR 407

Applicant:
NAJS



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ521 of 2002



Delivered on:


12 September 2002



Delivered at:


Sydney



Hearing Date:


12 September 2002



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Nil



Solicitors for the Respondent:


Australian Government Solicitor


ORDERS

(1) That the application be dismissed.

(2) That the applicant pay the respondent's costs fixed in the amount of $2,300 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ521 of 2002

NAJS


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
The proceedings

1. This is an ex tempore judgment in the matter of Applicant NAJS v The Minister for Immigration and Multicultural and Indigenous Affairs. The applicant is a citizen of India who arrived in Australia on

10 August 2000. He applied for a protection visa on 14 August 2000. The application was refused. He sought review by the Refugee Review Tribunal. The Tribunal affirmed the decision not to grant a protection visa on 12 April 2002. The applicant now seeks review of that decision made on 12 April and handed down on 7 May 2002. The application for review was filed in the Federal Court of Australia on

27 May 2002 and is therefore commenced within time, under section 477(1)(b) of the Migration Act 1958.

2. The applicant did not identify any grounds for review in the application as filed or in the accompanying affidavit which merely stated that he was not able to return to India due to increased vigilance on his case, especially after 11 September 2001, and intense tension between India and Pakistan. On 5 July 2002, Sackville J, transferred the matter to this Court. He ordered that the applicant file and serve an amended application and any affidavit on which he would rely on or before

19 July 2002.

3. No amended application was filed nor did the applicant file and serve an outline of written submissions five days prior to the hearing as ordered. The respondent filed written submissions. These have been made available to and read by the applicant. The applicant claims to be a former member of the Muslim Student League and a supporter of the Muslim League and at risk of persecution.

4. However the Tribunal found that the applicant was not credible in relation to the claims he made in support of his application for a protection visa. It was not satisfied that the applicant had a well founded fear of persecution in India and concluded that he did not satisfy the criteria in section 36(2) of the Migration Act for a protection visa.

5. The decision of the Tribunal is a privative clause decision within the meaning of section 474(1) of the Migration Act. That section provides

(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.

6. Section 474(1) does not mean literally what it says. Nevertheless it is clear that it leaves little scope for judicial review. (NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228). See in particular the judgments of Black CJ, Beaumont and von Doussa JJ. In that case, all the members of the Full Court of the Federal Court regarded section 474 as a privative clause of the kind considered by the High Court in R v Hickman; Ex parte Fox and Clinton (1945) 70CLR 598. In the Hickman case, Dixon J, observed:

Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation and that it is reasonably capable of reference to the power given to the body.

7. The members of the Full Court in NAAV were also in broad agreement that as a matter of construction a provision which disclosed a clear legislative intention that the observance of a particular procedure was a pre-condition for the making of a valid decision might over-ride the intention otherwise apparent in section 474.

8. In this case the only ground put to the Court by the applicant was that there are still a lot of problems in India so that he cannot go back. He disagreed with the Tribunal's statement that he could return to a different state in India. Such grounds merely relate to the Tribunal's findings of fact and seek impermissible merits review.

9. Despite the applicant's failure to identify any grounds for review in his application or submission to the Court I have considered all of the material before the Court including the decision of the Tribunal. This material discloses no basis for a conclusion that the decision of the Tribunal was not a bona fide attempt to exercise the power vested in it. The decision plainly relates to the subject matter of the Act and is referable to the power given to the Tribunal. No inviolable procedure or provision has been identified with which the Tribunal failed to comply.

10. The Tribunal's reasons were based largely on its view that it did not believe the applicant's claims. It was not required to give detailed reasons as to why the claims were not believed. Findings on credibility are a function of the decision maker. (R v MIMA; Ex parte Durairajasingham (2000) 16 ALR 407). However the Tribunal did set out its findings on material questions of fact and its reasons for rejecting the applicant's claims.

11. No error of law or reviewable error of any sort is identified in the material before the Court. Accordingly I am satisfied that the application should be dismissed.

12. I note that the applicant indicates that he has no money. Nonetheless I consider that it is appropriate that an order be made that the applicant should pay the respondent's costs. The respondent has calculated the costs at $2,300. I accept that this amount is appropriate and I fix the amount of costs in the sum of $2,300 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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