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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's decision refusing to grant a protection visa - no reviewable error disclosed.

NANZ v Minister for Immigration [2002] FMCA 241 (14 October 2002)

NANZ v Minister for Immigration [2002] FMCA 241 (14 October 2002)
Last Updated: 16 October 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NANZ v MINISTER FOR IMMIGRATION
[2002] FMCA 241



MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's decision refusing to grant a protection visa - no reviewable error disclosed.



Migration Act 1958 (Cth), s.474

Muin and Lie [2002] HCA 30

NAAV v Minister for Immigration [2002] FCAFC 228

Applicant:
NANZ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ665 of 2002



Delivered on:


14 October 2002



Delivered at:


Sydney



Hearing Date:


14 October 2002



Judgment of:


Driver FM



REPRESENTATION

Solicitors for the Applicant:


Mr J Bharati

Jyoti Bharati, solicitor



Counsel for the Respondent:


Mr J Smith



Solicitors for the Respondent:


Sparke Helmore



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 $4,300.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ665 of 2002

NANZ


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 27 May 2002 and handed down on 19 June 2002. The background facts are set out in paragraphs 4 to 6 of the amended outline of submissions prepared on behalf of the respondent Minister. I accept that statement of background facts as accurate for the purposes of this judgment.

2. The decision of the RRT was challenged by the applicant, who is legally represented, on the grounds that the RRT failed to afford procedural fairness during the hearing before it, that it did not act on proper principles, that it did not exercise its authority in good faith and that it erred in the application of the law to the facts as found. In argument before me this morning, Mr Bharati, for the applicant, advanced the following particular propositions in support of the applicant's case.

3. These are first, that there was an excessive delay between the conduct of the hearing before the RRT and the giving of its decision. The presiding member notes that the applicant arrived in Australia on

26 January 1997, that he lodged an application for a protection visa in February of the same year, and that a delegate refused that application in June 1998. In July 1998, the applicant applied for review of that decision.

4. It seems that it took two years for the decision to be reviewed by the RRT. The presiding member notes that the applicant gave oral evidence to the RRT on 17 May 2000. It took a further two years for the RRT to reach a decision on the case before it. Four years is an extremely long time for an application for a protection visa to pass through the various stages of consideration until a decision is made by the RRT. It does not appear, from the reasons of the RRT, why this matter took such a long time.

5. One explanation may be that significant investigation of the applicant's background was reasonably required, based upon the applicant's own claims. The applicant claimed that he entered Australia with a false passport and gave another name as his real name. The reasons for decision of the RRT establish that the Minister's department conducted investigations which determined that the name he gave as his real name is indeed his real name. It seems, however, that that investigation was probably complete by the time the delegate made his decision in June 1998.

6. More significantly, the applicant has claimed links with the Sri Lankan Elan People's Revolutionary Liberation Front and the Liberation Tigers of Tamil Elam, commonly called the Tamil Tigers. The applicant claimed links with the Tamil Tigers from 1983 up until the assassination of Prime Minister Rajiv Gandhi in 1991. More recently, the applicant has claimed an association with the Communist Party of India (Marxist-Leninist).

7. My understanding is that the Tamil Tigers has become a proscribed terrorist organisation in Australia and elsewhere and Mr Bharati indicated to me this morning that elements of the Communist Party of India (Marxist-Leninist) have links with Maoist organisations, which may themselves be linked to terrorist operations in Nepal. The material provided by the applicant to the RRT included details of his arrest on the border between India and Nepal. It seems to me that the material advanced by the applicant could reasonably have required a security investigation in order to determine whether he was a person eligible for consideration for a protection visa, or whether the applicant was a person ineligible by reason of association with proscribed terrorist organisations. I do not know whether that was the reason, but it is one plausible explanation for the lengthy delay in the finalisation of the matter before the RRT.

8. A consequence of the delay is that the decision of the RRT is caught by the privative clause in s.474 of the Migration Act 1958 (Cth) ("the Migration Act"). The effect of the clause, as is apparent from many previous decisions in this Court and the Federal Court, is to significantly expand the width of executive power available under the Migration Act that can be exercised without the facility for effective judicial review. That may be an unfortunate consequence for the applicant. However, there is nothing before me that would persuade me that the delay in reaching a decision by the RRT establishes, by itself, a ground of review of the decision. There is nothing to indicate, for example, that the delay was indicative of bad faith on the part of the RRT.

9. The second argument advanced by Mr Bharati was concern over the adequacy of an interpreter provided during the hearing of the matter before the RRT in 2000. The applicant, as I have noted, is legally represented and it was open to him to produce transcript from the tape recordings of the hearing before the RRT should he wish to draw attention to any parts of proceedings which are allegedly of concern. He has not done so, apparently on the grounds of the cost of providing a transcript.

10. I was invited to listen to the tapes of proceedings in order to satisfy myself whether problems with the interpreter support the application for prerogative relief. I have decided not to do so for the following reasons. First, the presiding member concluded that the applicant speaks, reads and writes English, has journalistic skills, and has a bachelor's degree in commerce. In the circumstances, it is open to question whether the applicant reasonably required an interpreter before the RRT at all. He may or may not have had a reasonable requirement.

11. Secondly, there is no reason to believe that simply listening to the tapes would enable me to establish that a significant problem existed in the interpretation of what the applicant said. That is a matter of speculation.

12. Thirdly, even if a significant problem in interpretation could be established, at most, that would, in my view, indicate a defect in procedural fairness which, on the clear authority of the Full Federal Court in NAAV v Minister for Immigration [2002] FCAFC 228 is not a reviewable ground to challenge the decision of the RRT in the face of the privative clause. In the circumstances, therefore, I have decided not to further delay these proceedings and possibly cause increased cost to the parties by listening to the tape recordings from the RRT.

13. Mr Bharati next submitted that the applicant had a legitimate expectation that the secretary of the Minister's department would send to the RRT all documents relevant to his application. I accept that he did have such a legitimate expectation. On page 76 of the court book is a letter from the RRT to the applicant indicating that the RRT believed that it had taken into account all documents relevant to his application.

14. Mr Bharati directed my attention to a handwritten statement of claim in support of the application for a protection visa, apparently prepared by the applicant, which is contained at pages 17-22 of the court book. It had already been established before the hearing before me today that a page of that document was missing from the court book and a replacement page was provided by the solicitors for the Minister, by fax, on 9 October 2002. Mr Bharati submitted that a further page, being the second page of the document, was also missing and invited me to draw the inference that the complete statement of claim prepared by the applicant was not provided to the RRT.

15. During the course of the hearing this morning, Mr Smith, for the Minister, tendered a copy of the complete handwritten statement of claim from the Department's records. He invited me to conclude that we are dealing with a simple administrative error in the preparation of the court book and that there is no proof that any document was missing from the collection of documents put before the RRT. He further submitted, in any event, that such a procedural defect, if it did occur, would not invalidate the decision of the RRT in the face of the privative clause.

16. It is unfortunate that the court book was incomplete, in that pages were missing from the statement of claim prepared by the applicant. That error has now been corrected. There is nothing before me which persuades me that the document was not before the RRT.

17. I am not satisfied that the RRT lacked any document relevant to a determination of the applicant's claims. I also note that the applicant attended the hearing before the RRT and had an opportunity to provide orally to the RRT material in support of his application.

18. In any event, I accept Mr Smith's submission that the procedural error in sending material to the RRT, which was sufficient to invalidate a decision of the RRT prior to the enactment of the privative clause: Muin and Lie [2002] HCA 30, would not, in my view, invalidate a decision of the RRT following the enactment of the privative clause unless the error was of such gravity as to establish a lack of good faith or, possibly, a breach of an essential prerequisite to the exercise of power by the RRT.

19. The final submission made by Mr Bharati is that the RRT misunderstood the Indian judicial system, in particular, the transfer of arrest warrants between states. Even if he is right about that, and I am not sure that he is, it would indicate an error of fact that would be unlikely to invalidate the decision of the RRT even without the application of the privative clause. It would certainly not invalidate the decision of the RRT in the face of the privative clause.

20. The conclusion I come to is that nothing has been advanced before me to persuade me that a reviewable error has been committed by the RRT. In the circumstances, there is no basis for me to provide prerogative relief to disturb the decision of the RRT. I will, therefore, dismiss the application.

21. Mr Smith, for the Minister, has sought an order for costs consequent on the dismissal of the application and he has submitted that an appropriate order for costs would be an order for payment of costs in the sum of $4,500. It has been my practice in migration proceedings of this nature to make an order for payment of costs in a fixed sum to the successful party. I will do so again in this matter.

22. I have previously awarded costs in an amount between $4,000 and $5,000, although generally towards the lower end of that scale on the basis of an estimate of what an outcome might be in a proceeding of this nature on a taxation in the Federal Court. Mr Smith has pointed out that in this matter additional work was required to amend the respondent's submissions, and to conduct further research. In view of the general nature of allegations made and alterations to the allegations made in the course of preparation for the hearing before me, I accept that it was necessary for the respondent Minister to prepare amended submissions in order to take account of matters raised very close to the hearing of the matter.

23. The applicant was, of course, legally represented and legal representation in proceedings of this nature increases the quality of the preparation and presentation of submissions. That is not in itself a reason to penalise an applicant who is unsuccessful. I have concluded that the amount of preparation required by the Minister in this matter was probably no more than average. In the circumstances, an award of costs in the sum of $4,300 would be reasonable.

24. I will, therefore, order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,300.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 25 October 2002
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