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MIGRATION - Application for review of decision of the Refugee Review Tribunal - applicant alleged that Tribunal had come to mistaken conclusions based upon errors that had appeared in his entry interviews - jurisdictional error not found - no lack of bona fides found.

NAMO v Minister for Immigration [2002] FMCA 229 (15 October 2002)

NAMO v Minister for Immigration [2002] FMCA 229 (15 October 2002)
Last Updated: 22 October 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAMO v MINISTER FOR IMMIGRATION
[2002] FMCA 229



MIGRATION - Application for review of decision of the Refugee Review Tribunal - applicant alleged that Tribunal had come to mistaken conclusions based upon errors that had appeared in his entry interviews - jurisdictional error not found - no lack of bona fides found.



Migration Act 1958 (Cth), s.474

Judiciary Act 1903 (Cth), s.39B

NAAV v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCAFC 228

Zahid v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 1108

SBAU v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 1076

Applicant:
NAMO



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 578 of 2002



Delivered on:


15 October 2002



Delivered at:


Sydney



Hearing Date:


4 October 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Mr S Lloyd



Solicitors for the Respondent:


Blake Dawson Waldron


ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs in the sum of $4,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 578 of 2002

NAMO


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is an Iranian citizen who made an unauthorised entry into Australia on 14 August 2001. He was detained upon arrival and remains in immigration detention. On 24 August 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration & Multicultural Affairs under the Migration Act 1958 (Cth). On 30 April 2002 a delegate of the Minister refused to grant a protection visa and on 1 May 2002 the applicant applied for a review of that decision. The review was heard by the Refugee Review Tribunal which made its decision on 13 June 2002 to affirm the decision not to grant a protection visa.

2. The applicant in his application seeks relief under s.39B of the Judiciary Act 1903 (Cth) on the grounds that the Tribunal:

a) exceeded jurisdiction in making the decision to affirm the respondent's decision not to grant the applicant a protection visa; and

b) erred in law in arriving at the decision to affirm the respondent's decision not to grant a protection visa.

3. This matter was referred to the Federal Magistrates Court by order of Conti J made on 22 July 2002. No submissions were received from the applicant prior to the hearing nor was there any clarification of the grounds of appeal.

4. When the applicant attended at the hearing on 4 October 2002 with his interpreter he sought an adjournment on the basis that he was seeking legal advice and was sick. In a separate, ex tempore judgment I declined the application for an adjournment.

5. The applicant's claim for protection rested upon his fear of persecution for Convention reasons if he returned to Iran because of his participation in certain student activity in July 1999. He also claimed to be a wanted political activist arising out of his membership of a now defunct Marxist organisation. The Tribunal noted that the applicant claimed to have left Iran in July 1999 to escape from the consequences of his alleged involvement in the Tabriz University demonstrations and lived for about two years in Turkey before leaving for Australia in August 2001.

6. The Tribunal assessed the evidence which had been given by the applicant to the various immigration officials, the Minister's delegate and itself and concluded that such evidence was inconsistent and implausible and militated against a finding of genuine fear of persecution. The most telling inconsistencies related to the applicant's residence in Turkey. At [CB 159] the Tribunal says:

"I am of the view that the applicant has fabricated this inconsistent, contradictory, incoherent, complicated and convoluted story about his entry and exit into Turkey and Iran because the computer records seriously undermine his claims of persecution in Iran. I accept that the Turkish government's computer records of the applicant's entries and exits into Turkey are accurate and correct. I am unable to accept that the applicant was able, through the assistance of smugglers to alter the records as he has claimed. I am unable to accept that the applicant entered Turkey in early July 1999 as he claimed."

7. The Tribunal's conclusion that it did not accept that the applicant's fear of persecution was well-founded followed naturally from its findings that he did not leave Iran for Turkey immediately after the Tabriz riots in July 2000 but waited until February 2001.

8. At the hearing before me the applicant spoke at length about the situation in Iran and his fear of persecution. He insisted that he was a genuine refugee and his case was that the Tribunal had come to mistaken conclusions based upon errors that had appeared in his previous interviews. Some of these errors arose out of the quality of translation and others from the quality of the assistance given to him. He claimed that certain matters were simply ignored by the delegate. But when he cited examples it appeared to me that he was mistakenly using the Tribunal's recital of the evidence as if it was a finding by the Tribunal. The applicant pointed to a number of errors between his recollection of the evidence and the various officers and delegates and the report of them in the decision. He claimed that the questions were twisted and pointed particularly to the finding at [CB 162] that he had not mentioned the finding of books in his home before the matter reached the Tribunal. He claimed that he had made this statement at earlier interviews and he made similar claims about other matters.

9. The applicant criticised the Tribunal for not believing his version of events about the student demonstrations and argued that the conclusions drawn against him were unfair. He recognised the difficulties which arose out of his conflicting statements concerning his entry into Turkey and understood that this was a major reason for the Tribunal disbelieving his other evidence.

10. Since the decision in NAAV v MIMIA [2002] FCAFC 228 as comprehensively explained by Sackville J in Zahid v MIMIA [2002] FCA 1108 it is clear that s.474 of the Migration Act has so widened the powers of the Tribunal that, relevantly, only a failure to exercise its decision making powers in a bona fide manner now provides grounds for review. There is no suggestion in this case of an inviolable limitation upon the powers not being addressed.

11. In SBAU v MIMIA [2002] FCA 1076 Mansfield J at [25] indicated the limitations on review created by s.474:

"Since the hearing of this matter, the Full Court has delivered reasons for decision in NAAV v Minister for Immigration & Multicultural Affairs [2002] FCAFC 228. The majority (Black CJ, Beaumont and von Doussa JJ, Wilcox and French dissenting) decided that, once the Tribunal's jurisdiction is enlivened by a valid application under s.414 of the Act, the manner of exercise of its authority and powers falls within the expanded area of authority and powers brought about by s.474(1) of the Act. In effect, although the statutory and common law procedural obligations applicable to it should be complied with (per von Doussa J at [674]), its expanded jurisdiction means that failure to comply with those obligations does not result in it exceeding its jurisdiction. The sort of jurisdictional error referred to in Yusuf is no longer appropriately the measure of jurisdictional error on the part of the Tribunal, because the effect of s.474(1) is to expand its jurisdiction: per von Doussa J at [639]. The Tribunal no longer commits jurisdictional error by wrongly identifying the applicable law, or by wrongly applying the applicable law, or by asking itself the wrong question, or by not addressing all the claims of a visa applicant, or by failing to accord procedural fairness to a visa applicant, or by failing to comply with the procedural prescriptions in Part 7 Div 4 of the Act: per Beaumont J at [91] - [104], [113] - [114], [188], [229] and [274] and per von Doussa J at [636] - [639], and [648] - [651]. Black CJ agreed generally with von Doussa J at [4], although his Honour disagreed with Beaumont J and von Doussa J in identifying what constituted "jurisdictional facts" upon the proper construction of the Act in two of the five matters under appeal."

12. At [31] and [32] of the same judgment Mansfield J indicated the matters which a Court should take into consideration in making its decision as to whether or not a bona fide attempt to exercise the power has been made by the Tribunal:

"It is not the function of the Court to cure administrative injustice or error. But, ultimately where the matter is raised, it is the duty of the Court to determine whether it is persuaded that the decision of the Tribunal results from a bona fide attempt to perform the function of reviewing the decision of the delegate of the respondent. The Court must consider all the circumstances, including the reasoning of the Tribunal. Errors of fact or law apparent in its reasons will not of themselves demonstrate a lack of good faith on its part, at least other than in exceptional circumstances. Illogicality in its reasons also will not of itself demonstrate a lack of good faith on its part. But such errors or illogicality might, either alone or in conjunction with other matters, demonstrate or tend to demonstrate a lack of good faith on its part. They may show such capriciousness on the part of the Tribunal that only one conclusion is open to the Court.

Ultimately whether there is a failure to attempt to address the question which the Tribunal's review requires it to address in good faith is a matter of fact. The Court must make a judgment about whether the fact asserted is made out. Almost invariably, it must do so by inference from what the Tribunal has done or has failed to do, or from what its reasons disclose as to how it approached its task or a combination of such factors. If, allowing for the need for the Tribunal's reasons not to be read over-zealously with an eye attuned to the perception of error, and having regard to the serious nature of the claim that the Tribunal did not approach its task in good faith, the court is firmly persuaded that the Tribunal did not approach its task in good faith, it is the duty of the Court to so conclude. It would be shirking its duty to do otherwise."

13. I have read the decision of the Tribunal and listened to the submissions of the applicant with these matters in mind. I can find nothing which I have seen on the papers or have heard from the applicant that would indicate that the Tribunal has pre-judged any issues or entered upon its decision with a closed mind. To the extent that there may have been some errors in its findings on fact these are not matters which go to its jurisdiction. I am satisfied that the applicant has been unable to demonstrate reviewable error in this case.

14. The application must be dismissed. I order that the applicant pay the respondent's costs which I assess in the sum of $4,000 pursuant to Part 21, rule 21.02(2)(a) of the Federal Magistrates Court Rules.

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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