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MIGRATION - Appeal from a decision of the Refugee Review Tribunal - whether the Tribunal erred in finding the applicant's fear of persecution was not well founded - jurisdiction of Court to review decision - no finding of bias or lack of bona fides.

NAEJ v Minister for Immigration [2002] FMCA 113 (21 June 2002)

NAEJ v Minister for Immigration [2002] FMCA 113 (21 June 2002)
Last Updated: 28 June 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAEJ v MINISTER FOR IMMIGRATION
[2002] FMCA 113



MIGRATION - Appeal from a decision of the Refugee Review Tribunal - whether the Tribunal erred in finding the applicant's fear of persecution was not well founded - jurisdiction of Court to review decision - no finding of bias or lack of bona fides.



Judiciary Act 1903 (Cth) s.39B

Migration Act 1958 (Cth) s.474

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

R v Murray; Ex parte Proctor (1949) 77 CLR 387

R v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) (1967) 118 CLR 219

Craig v South Australia (1995) 184 CLR 163

NAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713

SAAD v Minister for Immigration and Multicultural Affairs [2002] FCA 206

Boakye-Danquah v Minister for Immigration and Multicultural Affairs [2002] FCA 438

Kwan v Minister for Immigration and Multicultural Affairs [2002] FCA 598

Turcan v Minister for Immigration and Multicultural Affairs [2002] FCA 397

Walton v Ruddock [2001] FCA 1839

Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 682

Abebe v The Commonwealth of Australia (1999) 197 CLR 510

NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281

Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426

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

Applicant:
NAEJ



Respondent:


MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS



File No:


SZ 296 of 2002



Delivered on:


21 June 2002



Delivered at:


Sydney



Hearing Date:


13 June 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Mr G Kennett



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) The application be dismissed.

(2) The applicant pay the respondent's costs pursuant to Part 21.10 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 296 of 2002

NAEJ


Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant, who is an Indian citizen of a Muslim family, although now converted to Christianity, seeks review of a decision of the Refugee Review Tribunal constituted by Stephen Whitlam made on

21 January 2002. The Tribunal affirmed the decision of the delegate of the Minister who refused to grant a protection visa (Class AZ).

2. The applicant was not represented before me, however, he had obviously received some assistance in the preparation of his application and in some written submissions which were handed up at the hearing. The grounds of the application are as follows:

"1. The Refugee Review Tribunal has not attended any evidence in relation to the applicant's claims and thus its decision is influenced by sufficient doubts. The applicant provided a suitable vehicle and most of the grounds relied upon facts and documents, which the Tribunal did not consider. The RRT heavily depended in their handling of the issues based on the generalized facts and findings of DIMA and DFAT reports.

The RRT failed to internalise the circumstantial grounds of the review application while considering the claims of the review application and did not consider the supporting facts and documents. Therefore, the applicant seeks a review of the decisions of the Tribunal under section 39B of the Judiciary Act 1903 (Cth) and Migration Act 1958 (Cth).

3. The applicant is a genuine refugee under the UN Convention and sub-class 866 of the Migration Act 1958, but the authority has not considered applicant's claims and he has been refused to remain in Australia permanently. The RRT has failed to investigate the applicant's claims, specifically the grounds of persecution, in India. Therefore, the tribunal's decision dated on 21 January 2002 was affected by actual bias constituting judicial error."

3. Although the Federal Magistrates Court has, in relation to migration matters, all the powers of the Federal Court pursuant to s.39B of the Judiciary Act 1903 (Cth) those powers are limited by the provisions of the Migration Act 1958 (Cth) and in particular the privative clause provisions found under s.474(2). The court's power to review decisions is defined in the provisions of the new Part 8 of the Migration Act.

4. It is accepted by the respondent that the clear words of s.474(2), which have been set out in so many cases that they do not bear repeating, are subject to limitations placed upon them by the dicta of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616. The extent of that power has been considered in many other decisions of the High Court and of the Federal Court, as well as the Supreme Courts of the States (see, for example R v Murray; Ex parte Proctor (1949) 77 CLR 387; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) (1967) 118 CLR 219; Craig v South Australia (1995) 184 CLR 163).

5. Recently several judges of the Federal Court have provided explanations as to the extent to which a privative clause can prevent review of an administrative decision and it has not gone uncommented upon that these views are not necessarily all in harmony. Currently the courts are awaiting a decision of a Full Bench of five members which will examine these issues and provide an authoritative view binding upon this court and upon the Federal Court. Thereafter the validity of the new provisions of the Migration Act and in particular whether the section has widened the power of the Tribunal so that "the state, or lack, of satisfaction, however reached, with whatever attendance there may have been to what absent s.474, may have been irrelevant considerations or with whatever misunderstandings of the right question to answer, whether capricious, arbitrary or lacking a probative foundation or a rational connection with the circumstances present, or fanciful is within the lawful authority and jurisdiction of the decision maker to reach" (NAAG v MIMIA [2002] FCA 713 at [13]) will be known.

6. As these matters are to be resolved in a manner which will bind this court in the very near future it would normally be appropriate to withhold judgment in a matter such as this until the appellate decision is handed down. I have not chosen to do this because, in the particular case before me, I cannot see a benefit in so doing. It is beyond argument that the powers of the court are not widened by the new Part 8 to the extent that activities of the Tribunal which would not form reviewable error under s.39B of the Judiciary Act will now provide grounds for the decision to be overturned.

7. I accept that there is a dichotomy in the current jurisprudence between those decisions which suggest that error under s.39B should be looked for before considering the effect of s.474 (SAAD v MIMA [2002] FCA 206; Boakye-Danquah v MIMA [2002] FCA 438; Kwan v MIMA [2002] FCA 598) and those cases which hold that the court must only address those matters permitted by the narrow Hickman principles (Turcan v MIMA [2002] FCA 397, NAAG v MIMIA (supra)). If it appears from careful consideration of the decision and the submissions made by the applicant that no grounds exist, even under s.39B, for a review then it is surely best to say so and not hold up the administration of justice pending an appellate decision that in the end will not affect the matter.

8. In the applicant's written submissions he presents the most favourable quotations from Walton v Ruddock [2001] FCA 1839 where Merkel J referred to the observations of Gaudron and Gummow JJ in Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 682 to the effect that:

"The terms of s.75(v) would be defeated if a privative clause operated to protect against jurisdictional errors being refusal to exercise jurisdiction, or excess of jurisdiction ..."

9. The applicant quotes the well-known dicta found in Craig v South Australia (1995) 184 CLR 163 at 179:

"If an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. ..."

10. And finally he refers to Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 536-537 where Gleeson CJ and McHugh J note that:

"once a question arises as to whether a Commonwealth officer has acted lawfully or within or outside the jurisdiction conferred on him or her, no law of the Parliament can curtail the jurisdiction of this Court to decide the issue ..."

11. Regrettably the applicant does not proceed to identify the jurisdictional errors in the decision of this Tribunal which would fall within those dicta.

12. The fact is that the complaints made by the applicant in his oral submissions and in his affidavit in support of his application indicate, at best, a complaint relating to the assessment of the evidence which came before the Tribunal. There is also a complaint that the Tribunal did not make independent investigations of its own of persons who could confirm the applicant's conversion to Christianity and his sincerity in holding to that religion's views. The applicant also raised a concern about the Tribunal's failure to properly consider the significance of inter-religious fighting currently occurring in India, but that submission was not entirely borne out from a review of the papers before the Tribunal. These appear to be submissions by the applicant that the RRT did not give any realistic or genuine consideration to his claims. This is not an available ground of review (see NABE v MIMA [2002] FCA 281 at [40]; MIMA v Anthonypillai (2001) 106 FCR 426 at 435-442).

13. In so far as paragraph 10 of the applicant's submissions makes reference to the Tribunal's "ignoring of relevant evidence and its finding in the face of contradictory independent evidence indicates actual bias" I would respectfully adopt what His Honour von Doussa J said about the matter in SCAA v MIMIA [2002] FCA 668:

"I too share the view expressed by Sackville J. A finding of actual bias against a decision maker is a grave condemnation of the ability of the decision maker to discharge his or her functions with impartiality. If the demonstration of factual errors, faulty reasoning and wrong headedness in published reasons for decision are without more to be translated into a finding of actual bias, the result, as Wilcox J observed in Sun Szhan Qui v MIMA (1997) 81 FCR 71 at 122 will be to substitute for an enquiry into the character of the decision an enquiry into the character of the decision maker."

14. And at [38]:

"In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision."

15. In so far as the reference to bias in the submissions was really a reference to lack of bona fides within Hickman I would respectfully adopt the views of Allsop J in NAAG (supra) at [24]. I am unable to find from the papers before me any matters which might enable the allegation to be made out and there is most certainly no other evidence produced by the applicant apart from the allegation made in the affidavit previously referred to.

16. In these circumstances, the case is clearly one which would not succeed under any interpretation of s.474 and it is appropriate that I make this decision at this time. I dismiss the application and I order that the applicant pay the respondent's costs under Part 21, rule 21.10 of the Federal Magistrates Court Rules. I certify that it was appropriate for the respondent to employ an advocate pursuant to rule 21.15.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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