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MIGRATION - Review of decision of the Refugee Review Tribunal affirming a delegate's decision to refuse to grant a protection visa - privative clause - available grounds of review considered - no reviewable error found.

NALO v Minister for Immigration [2002] FMCA 204 (11 September 2002)

NALO v Minister for Immigration [2002] FMCA 204 (11 September 2002)
Last Updated: 7 October 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NALO v MINISTER FOR IMMIGRATION
[2002] FMCA 204



MIGRATION - Review of decision of the Refugee Review Tribunal affirming a delegate's decision to refuse to grant a protection visa - privative clause - available grounds of review considered - no reviewable error found.



Migration Act 1958 (Cth), ss.424A

Hashimi v Minister for Immigration [2002] FCA 998

NAAV v Minister for Immigration [2002] FCAFC 228

NAIN v Minister for Immigration [2002] FMCA 177

NANM v Minister for Immigration [2002] FCA 1106

WADK v Minister for Immigration [2002] FMCA 175

Applicant:
NALO



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ546 of 2002



Delivered on:


11 September 2002



Delivered at:


Sydney



Hearing Date:


11 September 2002



Judgment of:


Driver FM



REPRESENTATION

The applicant appeared in person



Counsel for the Respondent:
Mr J Smith



Solicitors for the Respondent:


Sparke Helmore


ORDERS

(1) Application dismissed.

(2) Applicant to pay respondent's costs and disbursements of and incidental to the application, fixed at $4,400.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ546 of 2002

NALO


Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This ex tempore judgment relates to an application filed on 18 June 2002 to review a decision of the Refugee Review Tribunal ("the RRT") affirming a decision of a delegate of the respondent Minister to refuse to grant the applicant a protection visa. The application is supported by an affidavit filed on the same day by the applicant in which she sets out her concerns about the decision of the RRT. I have also heard from her orally today. I have also had the benefit of written submissions prepared in response to the application by Mr Smith, for the respondent Minister.

2. The decision of the RRT was made on 24 April 2002, and I assume handed down subsequently. The basic facts relevant to this application are that the applicant is a citizen of Ukraine who claimed to be a journalist, and who claimed to be at risk of persecution and to have been persecuted in her capacity as a journalist working for a newspaper in Ukraine. The basic facts are set out in the decision of the RRT on pages 166 to 167 of the court book and I do not need to restate them here.

3. The applicant, in her affidavit and in her oral submissions today, makes the following complaints about the RRT decision. First, she says the approach taken by the RRT was biased and she supports that by reference to observations made by the RRT about her inability to identify accurately the circulation of the newspaper she says that she worked for. The difference between the circulation identified by the applicant and the circulation identified by the presiding member was very great, a factor of approximately 4, and it is not surprising that the presiding member placed some weight on the applicant's lack of knowledge about the circulation of the newspaper.

4. In my view, the observation made by the presiding member on that matter does nothing to support an allegation of bias. It is important in this connection to consider whether one is dealing with an allegation of actual bias or merely an allegation of a reasonable apprehension of bias. An allegation of actual bias requires proof of a closed mind and indicates circumstances meriting personal criticism of the decision maker. It is not necessarily the same as, but can establish, a case of bad faith which, on any view, is a ground of review of a decision of the RRT notwithstanding the privative clause. I see nothing in the RRT's treatment of the newspaper circulation issue that could be taken to establish that the decision maker had a closed mind on the issues falling for determination by the RRT.

5. Mr Smith has submitted to me that it is not an available ground of review to assert a case of a reasonable apprehension of bias. I have taken a different view in the case of WADK v Minister for Immigration [2002] FMCA 175. Whether I am ultimately proved to be right or wrong on that, I can leave for another time because it seems to me that the observations by the presiding member on the circulation issue could not be said to lead a fair minded observer to conclude that the decision maker would not bring an unprejudiced mind to bear on issues to be determined by him. Therefore, whether one couches the case as a case of actual bias or a reasonable apprehension of bias, I am not satisfied that the case has been made out.

6. The second allegation made by the applicant concerns the treatment by the RRT of three documents which were found to have been fabricated or to be fraudulent. These were referred to in a letter sent to the applicant on 22 March 2002, contained at pages 129 and 130 of the court book. In that letter, the applicant was simply told, and I quote:

The Department's document examiner found three of her documents are fraudulent.

7. The letter goes on to say that this information was relevant because it suggests that the applicant had not given reliable evidence to the RRT or the Department. The letter was sent in purported compliance with the obligation imposed on the RRT to identify adverse material, arising from s.424A of the Migration Act 1958 (Cth). It is a debatable issue whether compliance with s.424A is an inviolable requirement to the valid exercise of power of the kind referred to in NAAV v Minister for Immigration [2002] FCAFC 228. I was referred by Mr Smith to the decision of her Honour Kiefel J in Hashimi v Minister for Immigration [2002] FCA 998 as establishing that the equivalent provision binding the Migration Review Tribunal (s.359A of the Migration Act) is not an inviolable requirement.

8. I am told, although I have not been able to verify in the course of these proceedings, that that decision was referred to with approval by his Honour, Beaumont J in NAAV. I do not need to determine in these proceedings whether or not s.424A is an inviolable requirement, a breach of which may support an application for review, notwithstanding the privative clause, on the strength of the majority judgments in NAAV. That is because I am satisfied that the notice was given in the knowledge that the applicant was already aware which of her documents were said to have been fraudulent and the general circumstances leading to that conclusion.

9. The applicant had previously been interviewed by Departmental officers in relation to three of her documents. It is apparent from reading the court book as a whole that the applicant was familiar with which documents were being referred to. I conclude, therefore, that the reference to those documents of the letter 22 March 2002 was a sufficient reference to give the applicant the opportunity to respond for the purposes of s.424A.

10. The remaining matters raised by the applicant are alleged misinterpretations of information provided by the applicant or other information before the RRT for the determination of the application. In substance, these are alleged mistakes made by the RRT in the exercise of its jurisdiction. In large part, the matters raised by the applicant are simply an invitation for me to exercise merits review. On any view of the operation of the jurisdiction conferred on me that is not an exercise I can undertake.

11. Mr Smith has put to me a challenging submission on the proper interpretation to be placed on the judgment in NAAV v Minister for Immigration in cases where a court is reviewing a decision of a tribunal rather than a decision of the Minister or a delegate of the Minister. Essentially, Mr Smith relies on the observations of his Honour Hely J in NANM v Minister for Immigration [2002] FCA 1106 and references in the judgment of his Honour Black CJ, in NAAV v Minister for Immigration relating to the views expressed in that case by von Doussa J as establishing that once the review jurisdiction of the RRT, or for that matter the MRT, is properly enlivened, the grounds of review available following the decision of the Tribunal are strictly limited to the Hickman exceptions as interpreted in the Minister's submissions.

12. That is a view at marked variance to the view that I have taken in NAIN v Minister for Immigration [2002] FMCA 177. In that case, at paragraph 11, I found that five and possibly six grounds of review were available on the authority of NAAV, read as a whole, which go some way beyond the strict Hickman provisos. Once again, whether the view I have taken is right or wrong can be left for another occasion, for I am not persuaded that any of the alleged mistakes raised by the applicant in these proceedings could amount to a jurisdictional error of the kind reviewable in the face of the privative clause. In particular, they could not amount to proving a case of a breach of constitutional limits. They could not amount to proving a case of an absence of good faith. They could not amount to proving that the decision was not reasonably capable of reference to the power under which the decision was made, nor that the decision was not made by reference of the subject matter, the scope and objects of the Migration Act. There is nothing in the matters raised by the applicant which could establish that the decision was made in breach of an express or indeed an implied statutory limit, or condition upon the power of the RRT which, as a matter of construction, notwithstanding section 474, must be observed for the effective exercise of the power.

13. In NAIN v Minister for Immigration, I found that s.65 of the Migration Act was an inviolable limitation on the exercise of power by the decision maker, whether that be the original decision maker or the RRT, standing in the shoes of the original decision maker, and that it was possible to establish a case for review if a serious legal error was made in the course of arriving at the requisite state of satisfaction. The kinds of legal errors that I identified in NAIN, however, are not the simple errors of fact or errors of weight referred to by the applicant in these proceedings and accordingly her application fails. I will therefore dismiss the application.

14. The general principle in proceedings before this Court, as in the Federal Court, is that costs follow the event and there is nothing in these proceedings which would persuade me that the Minister is not entitled to an order for costs. My general approach in straightforward migration proceedings is to fix the amount of costs payable. This is what I would be inclined to view as an average case before the Court in terms of the amount of preparation that has been required on behalf of the Minister and in terms of the time taken to resolve the matter today.

15. My general practice is to fix costs somewhere between $4,000 and $5,000, although I have not to date fixed costs in migration proceedings in an amount more than $4,800. In this matter, I will order that the applicant pay the Minister's costs of and incidental to the application which I fix in the amount of $4,400.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 24 September 2002
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