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MIGRATION - Review of Tribunal's decision - whether there was a jurisdictional error under s.39B - whether the Tribunal acted bona fides.

NAIK v Minister for Immigration [2002] FMCA 278 (20 November 2002)

NAIK v Minister for Immigration [2002] FMCA 278 (20 November 2002)
Last Updated: 25 November 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAIK v MINISTER FOR IMMIGRATION
[2002] FMCA 278



MIGRATION - Review of Tribunal's decision - whether there was a jurisdictional error under s.39B - whether the Tribunal acted bona fides.



NAAV v Minister for Immigration [2002] FCA 443

Perampalam v MIMA (1989) 84 SCR 274

Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1

SAAG v Minister for Immigration [2002] FCA 547

NAJD of 2002 v Minister for Immigration [2002] FCA 1088

Wu v Minister for Immigration [2002] FCA 242

Minister for Immigration v Yusuf [2001] 206 CLR 323

Applicant:
NAIK



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ670 of 2002



Delivered on:


20 November 2002



Delivered at:


Sydney



Hearing Date:


6 November 2002



Judgment of:


Raphael FM



REPRESENTATION

Counsel for the Applicant:


Mr Tony Silva of Silva Solicitors



Counsel for the Respondent:


Ms S Kaur Bains



Solicitors for the Respondent:


Mr Andrew Carter of Blake Dawson Waldron



ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs assessed according to Part 21, rule 21.02(2)(a) of the Federal Magistrate Court Rules in the sum of $4500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ670 of 2002

NAIK


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this case is a Fijian Indian of the Islamic religion. He is aged 37 years and arrived in Australia as a holder of a valid Fijian passport on 17 February 1996 together with his wife and child. He made application for permanent residency but this was denied him. On 31 October 2000 he made an application for a protection visa which the delegate of the Minister refused to grant on the 20 November 2000. Another Tribunal differently constituted made a decision on 29 June 2001, which the Federal Court by decision dated 21 December 2001 remitted to the Tribunal whose decision is presently before me.

2. The applicant was represented, and Mr Silva who appeared on his behalf provided me with a helpful outline of submissions. He requested the court to take the approach which Sackville J had adopted in Wu v Minister for Immigration [2002] FCA 242 at [22] of addressing first whether any of the alleged errors had been established independently of s.474(1) and then considering the application of that provision. It was Mr Silver's case that those matters, which constituted what he claimed to be jurisdictional errors, were, if taken together, indicative of a lack of bona fides on the part of the Tribunal. I accepted Mr Silva's invitation to deal with the case on this basis although I noted that the respondent did not agree with that approach. Even if I exclude from Justice Sackville's reasoning the fact that the parties there agreed to the approach to be taken, it seems to me that the possible situation on appeal and the fact that the alleged jurisdictional errors are very much part of the applicant's argument relating to bona fides, warrants me taking this approach in this case.

3. The applicant submitted there were six grounds upon which jurisdictional error could be substantiated. The first was that whilst accepting that the applicant was involved in pro-democracy activities in 1998 and was arrested on three occasions and detained overnight on one of them he was not "a high profile activist". The applicant claims that this refusal to accept him as such was made without a proper basis and was unexplained. No definition of a "high profile activist" was provided.

4. The Tribunal considered the statutory declaration made by the applicant dated 23 May 2001 and the other evidence given by the applicant at the Tribunal. It then made a finding at [CB 129] that the applicant's activities were "minimal and insignificant". This, it seems to me, is a finding, which is reasonably open to the Tribunal on the facts it considered, and in the light of the Tribunal's knowledge of these matters gained through its experience. I accept the submission made by the respondent that in any event there is no obligation on the Tribunal to set out reasons why it made a particular finding of fact (Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 168 ALR 407 at [67]). I would also accept the submission that the failure to state what the Tribunal meant by "a high profile activist" is not a matter which in itself could amount to jurisdictional error as considered by McHugh, Gummow and Hayne JJ in Minister for Immigration v Yusuf [2001] 206 CLR 323 at 351 [82].

5. In any event it seems to me that the real ratio of the decision regarding these claims was that:

"The Tribunal is not satisfied that these activities, now over fourteen years [old] give rise to a real chance of persecution on the basis of political opinion."

6. The second alleged jurisdictional error is the finding by the Tribunal that the arrests to which it accepted the applicant was subjected did not constitute persecution within s.91R of the Act. A finding under s.91R requires the Tribunal to reach a state of satisfaction. The state of satisfaction can only be reached by an assessment of facts. The Tribunal could fall into reviewable error under s.39B if, in making that decision it approached the matter in the way, which the High Court proscribed in Yusuf. The submissions made by the applicant did not appear to suggest that the Tribunal asked itself a wrong question or ignored relevant evidence or utilised irrelevant material. It seems to me to be a straight out argument about the affect of the facts as found. This trespasses heavily upon the merits review carried out by the Tribunal and is not a matter in respect of which the court can intervene. The same finding can be made in respect of the third alleged jurisdictional error, concerning the finding, again under s.91R of the Act that the stoning of the applicant's house did not constitute persecution.

7. The fourth complaint is, that in relation to an attack which took place on the applicant in 1989, the Tribunal wrongly held that race was not the essential and significant reason for the attack and was therefore not satisfied as required by s.91R(1)(a) of the Act. In relation to complaints three and four the Tribunal came to its conclusion after a clear exposition of the facts and matters which led to it.

8. The fifth allegation is that the Tribunal wrongly held that police inaction did not occur for a convention reason. The inaction to which the applicant refers came about in this way. The applicant had dismissed an employee who was a Fijian national. He was the subject of intimidation and a beating from friends of the dismissed employee. He complained to the police who initially took action but then advised him not to press charges because the criminals might harm him or his family. The applicant did not press charges but his house was still stoned. The applicant's submission is:

"It ironic for police to advise the applicant to withdraw the compliant. The police are there to protect the citizens. If they instead ask people to withdraw the complaint on the ground that criminals would harm them, what safeguard is there for the people?

This is more to do with the police supporting native Fijians and wanting Indo-Fijians not to take any action against native Fijians. There is no logical reason for police inaction other than the fact that they wanted to protect their own people."

It was unfair for the Tribunal to say at [CB 122] that "moreover it shows that the police were willing and able to protect the applicant."

9. I think that there is force in the applicant's argument. I think this finding by the Tribunal is illogical and appears to me to be against the weight of the evidence. However, that makes it neither a reviewable error under s.39B nor a failure to act bona fides in relation to the decision.

10. The final alleged error is that the Tribunal wrongly held that the third incident of arrest was not for a convention reason. The arrest the applicant refers to is the only one, which did not follow immediately upon particular events. The applicant was taken into questioning at a local police station, a bribe was demanded and paid and he was warned not to get involved in political activity again. The Tribunal in its findings said:

"With the third incident the Tribunal is not satisfied that the attendance by the police and the demand for money was based on a convention claim, but was a criminal act, by corrupt police officers. (Perampalam v MIMA (1989) 84 SCR 274).

But it is possible to argue that this finding is illogical because the circumstances, which existed and allowed for the arrest, were the applicant's political activity and his ethnicity. I do not think that any error that did exist in the Tribunal's reasoning constituted a reviewable error within s.39B.

11. I have not found reviewable error under s.39B in respect of any of the matters raised by the applicant. This alone does not mean that the Tribunal exercised its jurisdiction in a bona fide manner. That is a separate question. The existence of what, absent s.474, might have been jurisdictional errors may assist a court in coming to a decision upon the bona fides of the Tribunal but it is not determinative of it.

12. What constitutes a lack of bona fides since the decision in NAAV (supra) has been considered by the Federal court on numerous occasions. Views differ. In the past I have adopted the views of Mansfield J in cases such as SAAG v Minister for Immigration [2002] FCA 547 and I note that in NAJD of 2002 v Minister for Immigration [2002] FCA 1088 Allsop J [25] confirmed that he agreed with the principles expressed by His Honour in approaching his task. Allsop J added:

" The only thing that I need to add is that it is plain in my view that the task of assessing whether there has been a good faith approach can involve simply looking at the fact findings and the legal analysis because that may in itself be of such a character as to disclose an approach which lacks bona fides."

13. In the same case [32] His Honour made this point:

"I should add two matters. The first is that it should not be forgotten that it is for the applicant to satisfy the delegate, and in this case and the Tribunal, of a state of affairs. If that satisfaction has not been reached after, as the Tribunal says, listening to and reading all the evidence and having considered the evidence as a whole and after having carefully considered the written submissions, then a defect in the expression of the reasoning process will not ground review. That defectiveness of the expression of the reasoning process has to be such as to betray an approach to the task which can be characterised as one lacking bona fides."

14. I have applied this reasoning to the submissions of the applicant and I find that I am not persuaded that the Tribunal did not exercise its jurisdiction in a bona fide manner. It follows that I must dismiss the application, which I do. I order that the applicant pay the respondent's costs which I assess according to Part 21, rule 21.02(2)(a) of the Federal Magistrate Court Rules in the sum of $4500.


I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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