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MIGRATION - Application for review of decision of the Refugee Review Tribunal - applicants alleged that Tribunal did not afford them procedural fairness - no lack of procedural fairness found - lack of procedural fairness not an available ground for review - no lack of bona fides found.

NAHF v Minister for Immigration [2002] FMCA 193 (2 September 2002)

NAHF v Minister for Immigration [2002] FMCA 193 (2 September 2002)
Last Updated: 5 September 2002


[2002] FMCA 193

MIGRATION - Application for review of decision of the Refugee Review Tribunal - applicants alleged that Tribunal did not afford them procedural fairness - no lack of procedural fairness found - lack of procedural fairness not an available ground for review - no lack of bona fides found.

Migration Act 1958 (Cth) ss.425, 474

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

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

SAAG v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 547

SBAN v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 591

SCAA v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 668

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

First Applicant:

Second Applicant:

Third Applicant:





File No:

SZ 413 of 2002

Delivered on:

2 September 2002

Delivered at:


Hearing Date:

28 August 2002

Judgment of:

Raphael FM


For the Applicant:

Applicant in person

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Clayton Utz


(1) Application dismissed.

(2) Applicant pay the respondent's costs in the sum of $3,750.00.




SZ 413 of 2002


First Applicant


Second Applicant


Third Applicant






1. These three applications involve a husband, wife and son who arrived in Australia on Pakistani passports on 23 March 2000. The applicants were immigration cleared. On 1 May 2000 the applicants lodged an application for protection visas under class XA sub-class 866. The delegate of the Minister refused to grant such a visa and on 5 July 2000 the applicant sought review of that decision by the Refugee Review Tribunal.

2. A hearing was conducted before the Tribunal on 18 February 2002 at which the male applicant appeared. He was represented by an adviser and had the assistance of an interpreter. The female applicant and the son did not appear.

3. The Tribunal in its decision [CB 172] cites the following facts in relation to the hearing which are important in the context of the applicant's complaints:

"The date on which the hearing took place was the third the Tribunal attempted to set. The Applicants lodged last-minute requests for long postponements on the two previous occasions citing the Applicant wife's having suffered a miscarriage some weeks ago and the lack of anyone but the Applicant husband to watch over her in bed at home. The Tribunal noted from the file that the Applicants had relatives in Sydney, but when this was discussed with them they said that all their relatives had moved to Melbourne. The Applicants provided the Tribunal with a GP's certificate citing depression. Although this was far from an expert certification of depression, the Tribunal allowed one postponement and then was forced at the last minute to allow another. Over this period, the quality of the medical evidence for a postponement did not improve, let alone did it argue a long delay in hearing the matter.

The Tribunal advised the Applicants that the Applicant wife could provide evidence in the form of a dictated submission, noting that it was being asked to delay the hearing for several months for her, and meanwhile noting that the substantive claims in the present case came from the Applicant husband. In the second request for postponement, the Applicant husband sought to argue that he too was unable to attend a hearing due to blackouts and depression. He nevertheless appeared at the RRT premises on the third date, 18 February 2002, accompanied by his adviser. He indicated that he had come only to argue for a postponement. However, the Tribunal directed that the discussion of such matters be conducted in a hearing room with the recording equipment on, with a view to commencing the hearing as scheduled in the event that it deemed him fit to answer questions.

The Applicant husband claimed there was something wrong with his head and his brain. He produced brain scans and a report from a specialist who said that his brain was normal. He produced a certificate from a GP who reported that he claimed to be having blackouts, ie., the GP's report stated only what the Applicant husband had reported to him. It seemed reasonable to find that the specialist's report, being that of an expert, took high precedence over the GP's.

After a time, assessing his capacity to address questions, the Tribunal determined that the Applicant had no compelling reason to delay giving oral evidence in the present matter. Having deemed the Applicant husband fit to answer questions, the Tribunal proceeded with the hearing."

4. The applicant claimed to have been born in Kashmir and to have escaped to Pakistan after his father who was a Muslim teacher had been killed in community violence. After some time in Pakistan he was taken up by a man whose surname was the same as his and became like a foster son to him. This association later caused problems with his benefactor's real family as a result of which his benefactor purchased a business in Thailand which the applicant ran on his behalf. When his benefactor died the family cut the applicant off from their support and took the business away. At the same time the applicant's wife, a Pakistani woman, was being told by her family that they would not permit her husband to return to Pakistan because they did not believe that he was a Muslim. The applicant claimed he could not return to Kashmir because he had been a member of the Kashmir Freedom League and that he was in danger from family violence if he returned to Pakistan.

5. The Tribunal's decision, which was arrived at after consideration of the facts as put by the applicant and on the basis of country information, was in the following form:

"The Tribunal finds that all three Applicants are Pakistani nationals. The Tribunal accepts that the Applicant husband was once an Indian national but it concludes that it does not have to consider his claims against India as he is a national of Pakistan. The Applicants have not made any Convention-related claims in relation to Pakistan other than the one about the Applicant husband being mistreated or left to face mistreatment for being an outsider. This claim is dismissed on the grounds that the Applicant husband is not an "outsider" for the purposes of Pakistani law, and on the basis of independent evidence to the effect that Kashmiri migrants to Pakistan are welcomed in Pakistan, whose population must include millions of people with parents and other close antecedents from Kashmir.

The Tribunal finds that the Applicant's dispute with his foster brothers is a personal financial one that may well have spilled over into unreasonable and uncivil threats, but it is not a Convention-related matter.

The Tribunal is not satisfied that the three Applicants face a real chance of Convention-related persecution in Pakistan. The Tribunal is thus not satisfied that they have well-founded fear of persecution in Pakistan for any of the five reasons identified in the Convention. They are not refugees."

6. The Tribunal found the applicant's claim that his passport, which he had used to travel extensively to and from Pakistan was fake, was not made out.

7. The applicant spoke at length to his claims for a review of the Tribunal's decision. Essentially there were three grounds upon which he believed review was called for. The first was that his wife was not given an opportunity to attend the Tribunal hearing. This ground was coupled with the fact that the applicant attended the Tribunal only to request a further adjournment and was effectively "ambushed" into the hearing. He wasn't well and the Tribunal told him that they would only ask him a few questions yet it sat for approximately an hour and a half.

8. The history of the events leading up to the hearing has been set out at [3] above. I am satisfied that the Tribunal complied with the requirement under s.425 of the Migration Act 1958 (Cth) to invite all the applicants to attend the hearing. At [CB 98] there is evidence of the invitation. This invitation extended to the applicant's wife. I am also satisfied that the proposal put by the Tribunal to allow the applicant's wife to make her own submissions in writing was reasonable in all the circumstances and there was no breach of any obligation of procedural fairness in relation to a &qu;
ot;hearings rule" in that regard. The applicant made much of his medical condition at the hearing. The Tribunal gave this consideration, and possibly taking into account that the applicant was represented at the hearing, decided to proceed. Given that the Tribunal had already granted two previous adjournments and had considered the medical evidence produced by the applicant I do not believe that by hearing the matter on that day the Tribunal committed any breach of the procedural fairness rule. In any event that rule is no longer of any relevance given the decision of the Full Bench of the Federal Court in NAAV v MIMIA [2002] FCAFC 228 per Black CJ at [4], Beaumont J at [277] and von Doussa J at [648].

9. The second complaint made by the applicant was that the Tribunal came to the matter with a closed mind and thus breached the requirement outlined by Dixon CJ in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 that the administrative decision was made bona fide. The scheme of the Migration Act, so far as it applies to the Refugee Review Tribunal, is that the Tribunal is only required to hold a hearing if it is not able to come to a conclusion favourable to the applicant without one (see s.425 Migration Act). Merely calling for a hearing does not indicate a closed mind. The applicant sought to draw comfort from the reasons for decision, but these are only reasons come to at the end of the process of assessing evidence. The Tribunal in its reasons sets out the evidence it took into account and explained how it came to the decision which it did. There is nothing in those reasons which indicate any bias towards the applicant or his family or persons of his nationality or religion. There is nothing to show that the Tribunal's mind was closed or unable to be swayed. The statement of reasons reveals an open approach consisting of logical findings which were well open to the Tribunal on the facts. The Tribunal applied its findings of fact to the law as it understood it in an appropriate manner.

10. It is to be expected that the closing off of previously available avenues for review by the passing of s.474 of the Migration Act will increase the number of applicants claiming that the Tribunal did not act bona fide in coming to its conclusions. Whilst the courts have made it clear that this ground for review still exists (see SAAG v MIMIA [2002] FCA 547 and SBAN v MIMIA [2002] FCA 591), the judges have been at pains to point out that such a finding will be exceptional (see SCAA v MIMIA [2002] FCA 668 at [38] per von Doussa J). I am not satisfied that this is such a case for the reasons previously given.

11. The third matter about which the applicant complains relates to the factual findings of the Tribunal. In particular he disagrees with the Tribunal's factual finding of his ability to go back to Pakistan and the factual finding concerning his passport. He disputes the Tribunal's factual finding concerning his wife's situation if she were to return to Pakistan.

12. It is not open for the court to delve into the Tribunal's factual findings for the purpose of attempting to change them. This is not the subject of judicial review. One must keep in mind that:

"... the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. ... Any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision." (MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

This was the law long prior to the amendments to the Migration Act which came about in October 2001. They apply with even more vigour since the introduction of the privative clause [see NAAV v MIMIA (supra)].

13. The applicant has been unable to establish any grounds upon which the Tribunal's decision can be reviewed. The application must be dismissed. I order that the applicant pay the respondent's costs which I assess in the sum of $3,750.00 together with the costs previously ordered on the adjournment pursuant to Part 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM


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