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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal to grant a protection visa - alleged bad faith - delay in RRT decision - credibility of the applicant - no reviewable error found.

NAOL v Minister for Immigration [2002] FMCA 294 (5 November 2002)

NAOL v Minister for Immigration [2002] FMCA 294 (5 November 2002)
Last Updated: 28 November 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAOL v MINISTER FOR IMMIGRATION
[2002] FMCA 294



MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal to grant a protection visa - alleged bad faith - delay in RRT decision - credibility of the applicant - no reviewable error found.



Migration Act 1958 (Cth), s.474

NAAC v Minister for Immigration [2002] FCA 1344

NAAV v Minister for Immigration [2002] FCAFC 228

SCAA v Minister for Immigration [2002] FCA 668

Applicant:
NAOL



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ724 of 2002



Delivered on:


5 November 2002



Delivered at:


Sydney



Hearing Date:


5 November 2002



Judgment of:


Driver FM



REPRESENTATION

Solicitors for the Applicant:


Mr J Bharati

Jyoti Bharati, solicitor



Counsel for the Respondent:


Ms M Allars



Solicitors for the Respondent:


Blake Dawson Waldron


ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed at $3,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ724 of 2002

NAOL


Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This ex tempore judgment relates to an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 23 May 2002 and handed down on 18 June 2002. The RRT affirmed a decision of a delegate of the respondent Minister not to grant to the applicant a protection visa. The application and its supporting affidavit filed originally in the Federal Court do not identify with any clarity the grounds on which the applicant challenges the decision of the RRT. However, in written submissions filed on 1 November 2002 on behalf of the applicant by Mr Bharati, specific grounds are identified.

2. First, while conceding that procedural fairness is no longer an available ground of review, following the decision in NAAV v Minister for Immigration [2002] FCAFC 228, Mr Bharati submits that the applicant had a legitimate expectation that his application for a protection visa would be dealt with within a reasonable time. In this case, it took approximately four years for a decision to be made by the RRT following the applicant's protection visa application.

3. Secondly, Mr Bharati submits that the presiding member had a closed mind to the merits of the protection visa application as evidenced by the rejections by the presiding member of effectively all of the matters put before the RRT on behalf of the applicant, and specifically the findings on credibility made by the RRT.

4. Thirdly, Mr Bharati submits that the applicant was entitled to the benefit of the doubt on the question of whether he had a well founded fear of persecution and that he was not given the benefit of the doubt. The background facts and circumstances relating to the application are set out in written submissions filed on 1 November 2002 by Ms Allars on behalf of the respondent Minister. I adopt as accurate the description of those background facts contained in paragraphs 3, 4, 5 and 6 of those submissions:

The applicant sought a protection visa on the ground that as a Sunni Muslim living in Pakistan he was subject to persecution on the ground of religion. He became a member of the SSP (Sipah-I-Sahapa) and member of the ASSP (Anjuman Sipa-I-Sahapa) in Sialkot in the Punjab in Pakistan and had been attacked by members of a rival religious organisation, the TNFJ (Thareek Fiqa-e-Jafrai). He claimed that the TNFJ threatened him with death if he did not stop his commitment to the ASSP. He claimed that the authorities in Pakistan could not provide him with protection from members of the TNFJ who had influence over the police. He was also targeted by the Shi'as, a minority group of Muslims in Pakistan. He claimed that false charges were brought against him and he was jailed during 1991 and 1993. He travelled to the Philippines were he obtained a three month visitor's visa for entry to Australia.

The Tribunal did not accept the applicant's evidence that he had been an office-holder or President of his branch of the ASSP and rejected the authenticity of a document which stated he had been nominated as President. Because of inconsistencies in his accounts, the Tribunal did not accept that he lived at the same address at Sialkot all his life in Pakistan, and found that he was free to move safely around Pakistan even though he could not obtain long-term employment.

The Tribunal found inconsistencies in the applicant's evidence relating to whether he had been convicted of a crime or sent to jail and when this had occurred. The Tribunal was not satisfied that the applicant was jailed for a criminal offence. It concluded that documents, which the applicant tendered relating to his claim that he was acquitted of charges brought against him, were forgeries. Even if the documents were authentic, by his own evidence the fights with the Shi'as occurred long ago, the applicant said that he was found innocent of the charges, and he could not therefore have a genuine fear of being arrested or jailed if he returned. The Tribunal concluded that the applicant did not have genuine fear of being arrested and jailed by the authorities should he return to Pakistan.

The applicant gave evidence of fights between the Shi'as but himself stated that he no longer had an interest in the SSP or ASSP. The Tribunal concluded he had no genuine fear of persecution as a result of his membership of the SSP or ASSP.

5. On the first matter raised by the applicant, which is the apparently excessive delay in the arrival of a decision by the RRT, it is noteworthy that the consequence of the delay in the resolution of the protection visa application is that the applicant was caught by the privative clause in s.474(1) of the Migration Act 1958 (Cth) ("the Migration Act"). Mr Bharati does not submit directly that there is any bad faith on the part of the RRT in that delay. He simply submits that the applicant had a legitimate expectation that the matter would be dealt with more promptly. Ms Allars notes that while there was a delay of some three years in the matter coming before the RRT, the RRT did give notification of a hearing on 23 April 2001 (court book at page 50). At that time, the applicant's representatives were not ready for a hearing and requested a delay (court book at page 53). The hearing was postponed at the request of the applicant and the hearing actually commenced on 2 August 2001. The applicant presented documents to the RRT on 29 August 2001. In consequence, a further hearing was necessary on 4 March 2002. Accordingly, while there was significant delay in the resolution of the protection visa application, the delay following the original fixing of a hearing date by the RRT can be attributed to the applicant and his representatives. In addition, I note that the applicant was not in immigration detention and had the benefit of bridging visas while his application was being considered. It is common in such circumstances for applications to be given lower priority, noting that applicants not in detention are not subject to any particular disadvantage. In the circumstances, I find that the delay in the decision of the RRT was not attributable to any bad faith or other fault on the part of the RRT and does not support the application for review in this Court.

6. The assertion that the RRT member had a closed mind amounts to an allegation of actual bias which in turn may be an assertion of a lack of good faith. It is established, following the decision in NAAV, that a lack of bona fides is an available ground of review, notwithstanding the enactment of the privative clause. I was told by Ms Allars this morning that in the case of NAAC v Minister for Immigration [2002] FCA 1344, decided on 31 October 2002, his Honour, Beaumont J has held that actual bias does not constitute, or does not necessarily constitute, a lack of bona fides. Ms Allars was not able to produce a copy of that decision.

7. I am aware of other perhaps less certain views along those lines being expressed by some Federal Court judges in earlier decisions, although it does not seem that the matter has been dealt with by the Full Federal Court. My own view, based upon some other decisions of the Federal Court, including SCAA v Minister for Immigration [2002] FCA 668 and other decisions of his Honour Mansfield J, is that bad faith can be constituted by proof of actual bias on the basis that actual bias inevitably, in my opinion, is a matter meriting personal criticism of the decision maker, which is an essential element of a lack of bona fides.

8. That matter does not need to be finally resolved in these proceedings as I am not persuaded by Mr Bharati's submissions that the decision and reasons of the RRT discloses bad faith, whether by actual bias or otherwise. It is clear from the decision and reasons of the RRT that the presiding member made adverse findings on credibility concerning the applicant. The presiding member did not believe what the applicant said about his alleged persecution in Pakistan and the presiding member did not accept the authenticity of documents presented by the applicant in support of his claims. The question of the authenticity of the documents is dealt with by the RRT, in particular on page 18 of its reasons (court book, page 108). Findings on credibility are matters properly for determination by the RRT. I am satisfied that the findings on credibility made by the presiding member in this case, both as regards the oral statements made by the applicant and the documentary evidence submitted by the applicant, were reasonably based upon material before the RRT. The decision and reasons of the RRT does not on its face indicate that the presiding member had a closed mind. The applicant has not put any other material before me that might indicate in some other way that the presiding member had a closed mind.

9. Mr Bharati also submitted that the applicant was not given the benefit of the doubt and that the applicant should have been given the benefit of that doubt. While it is true that in analysing claims for refugee status the RRT needs to bear in mind that claimants are frequently in extreme circumstances and may be prone to exaggerate their claims, it does not follow, as has been held repeatedly by the Federal Court, that the RRT must uncritically accept whatever is put before it by applicants. The RRT is entitled to disbelieve applicants and make findings on credibility. Accordingly, the RRT in this matter was entitled to make adverse findings and to reach adverse conclusions on those issues of credibility.

10. On the material before the RRT it was, in my view, entitled to conclude that the applicant did not have a well founded fear of persecution. I see no error of law apparent on the record of the RRT decision. Accordingly, I see no basis for me to disturb the decision of the RRT on any legal ground. Accordingly, even without the application of the privative clause I would dismiss the application. The effect of the privative clause is to narrow the available grounds of review. It is apparent that none of the remaining grounds of review could be made out. The decision of the RRT was a bona fide attempt to exercise the powers conferred on the RRT. The decision clearly related to the subject matter of the Migration Act and was reasonably capable of reference to the power conferred on the RRT. No provision of the Migration Act that might be described as an inviolable precondition on the exercise of power has been identified as having been breached. In the circumstances, I must dismiss the application.

11. On the question of costs, the Minister, through Ms Allars, seeks an order for costs and has presented some material indicating what costs have been incurred on a solicitor and client basis to date. Mr Bharati submits that the applicant is impecunious and that his financial circumstances should be taken into account. As a general principle, costs in migration proceedings follow the event and the Minister is prima facie entitled to an order for costs in his favour. There is nothing before me that would indicate that any departure from the general principle should be made in these proceedings. The applicant may be unable to pay costs that are awarded. While that is not in itself a reason not to make an award of costs, it may be a reason why costs are not ultimately collected. In my view, and consistently with my general approach, an award of costs should be made in a fixed amount. I will order that the applicant pay the respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 26 November 2002
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