Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Review of decision of the Refugee Review Tribunal affirming delegate's decision refusing to grant a protection visa - whether the RRT decision was bona fide - whether the RRT decision discloses a jurisdictional error on its face - whether the applicant could avoid persecution by relocating in India.

NACF v Minister for Immigration [2002] FMCA 119 (20 June 2002)

NACF v Minister for Immigration [2002] FMCA 119 (20 June 2002)
Last Updated: 1 July 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NACF v MINISTER FOR IMMIGRATION
[2002] FMCA 119



MIGRATION - Review of decision of the Refugee Review Tribunal affirming delegate's decision refusing to grant a protection visa - whether the RRT decision was bona fide - whether the RRT decision discloses a jurisdictional error on its face - whether the applicant could avoid persecution by relocating in India.

Federal Magistrates Court Rules 2001

Migration Act 1958 (Cth), ss.65, 474

Applicant A & Anor v MIMA 190 CLR 225

Lachmi v MIMA [2002] FMCA 19

NAAG v MIMIA [2002] FCA 713

NAAX v MIMIA [2002] FCA 263

NABM v MIMIA [2002] FCA 335


SBBK v MIMIA [2002] FCA 565

Applicant:
NACF



Respondent:


MINISTER FOR IMMIGRATION, MULTICULTURAL AND

INDIGENOUS AFFAIRS



File No:


SZ231 of 2001



Delivered on:


20 June 2002



Delivered at:


Sydney



Hearing Date:


20 June 2002



Judgment of:


Driver FM



REPRESENTATION

Solicitors for the Applicant:


Mr T Silva

Silva Solicitors



Counsel for the Respondent:


Mr G Kennett



Solicitors for the Respondent:


Sparke Helmore


ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs and disbursement of and incidental to the application, fixed at $4,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ231 of 2001

NACF


Applicant

And

MINISTER FOR IMMIGRATION,

MULTICULTURAL AND INDEGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter claims to be a citizen of India and he has applied for a review of a decision of the Refugee Review Tribunal ("the RRT") which affirmed a decision of a delegate of the respondent Minister to refuse his application for a protection visa. I am giving an ex tempore judgment today which should be read in conjunction with the transcript of today's proceedings and I formally reserve the right to amend or add to the ex tempore reasons that I am currently giving. I have been assisted by written submissions prepared by both the applicant and the respondent. The respondent's written submissions conveniently set out basic facts at paragraph 2 and I accept that statement of basic facts. I also accept that those facts were accepted by the RRT.

2. The issues before me today fell within a fairly narrow compass. Two matters were raised by Mr Silva for the applicant. The first was that the RRT is said to have committed an error of law by failing to consider whether the applicant was a member of a particular social group that would suffer persecution in India and the second was that the RRT failed to consider properly or at all, the risks to the applicant if he were required to relocate within India, if he were returned to India.

3. One issue that arose before me was whether I should first consider the scope of available grounds for review and then consider the claimed errors in the RRT's decision or whether I should consider the errors first and then consider the available grounds of review. Previously I have adopted the approach of dealing with the available grounds of review in the light of the privative clause in s. 474 of the Migration Act 1956 (Cth) ("the Migration Act") before considering the particular assertions made in relation to the decision under review. In the case of Lachmi v MIMA [2002] FMCA 19, I set out my understanding of the operation of the privative clause. In that case I found that this Court, like the Federal Court, is only able to review a decision of the RRT, following the enactment of the privative clause, on three bases.

4. Those bases are: first, that the decision was not a bona fide or genuine attempt to exercise the decision makers power; secondly, that the decision displayed a constitutional or statutory jurisdictional error on its face; or, thirdly, that the decision did not relate to the subject matter of the legislation or was not reasonably capable of reference to the power given to the RRT. There have been a number of significant decisions of the Federal Court by individual judges of that Court since I made that decision and they have made various interpretations of the privative clause. Some of these decisions were set out in the list of authorities presented by the representatives today.

5. The view I took in Lachmi is broadly consistent with some single judge decisions and clearly inconsistent with others. None are strictly binding on me because none of them was a Full Court decision and none was on appeal from this Court. I have previously taken the view that the most thoroughly argued decision of the Federal Court was that in NAAX v MIMIA [2002] FCA 263 and that decision was in turn followed by Beaumont J in NABM v MIMIA [2002] FCA 335. More recently, his Honour Allsop J in the decision of NAAG v MIMIA [2002] FCA 713 has also followed that approach and his Honour at paragraph 31 of his decision sets out an interpretation of the grounds of review available following the enactment of the privative clause which I respectfully agree with.

6. I also agree with his Honour's approach of treating the privative clause not as a restriction on the jurisdiction of the Court (whether the Federal Court or this Court) but rather as a provision which expands the scope of lawful decision making under the Migration Act. The privative clause therefore bears on the exercise of the executive power rather than on the exercise of judicial power by the Court. The end result, however, is essentially the same and is that which I set out in Lachmi, with the relevant grounds of review being those that I discussed in Lachmi and in subsequent cases.

7. In this matter, Mr Silva has grounded his attack on the RRT decision on two fronts. The first is to argue that the decision was not a bona fide attempt to exercise the decision maker's power and the second is that the decision of the RRT disclosed a jurisdictional error on its face by reason of a failure to comply with the requirements of s.65 of the Migration Act. I find that both of those approaches to challenging the decision of the RRT are available, notwithstanding the enactment of the privative clause. It is another matter of course to consider whether those grounds of attack can be made out.

8. The case coming before the RRT appeared on its face to be a relatively straightforward one. The applicant is a man who had evidently made a promise to marry a lady in India and had instead married another woman, causing embarrassment to the family of the first woman. As a result of his change of marriage plans, the father of the first lady made threats against the applicant and put the applicant in fear. The applicant convinced the RRT that he was at risk of harm from the father of the first lady but the RRT did not accept that that harm supported a well founded fear of persecution.

9. The RRT's acceptance of the facts advanced by the applicant was generous, bearing in mind that the applicant, in his original application for a protection visa, put his concern a limited basis, indicating a belief that he thought the threats from the father of his first intended bride would be removed once that lady had married another. At that time he expected that he would only need to remain in Australia a few months (court book, p.21). The concerns advanced by the applicant before the RRT seem not to be so limited. His concerns were nevertheless accepted as a genuine concern of a risk of harm.

10. The RRT was not satisfied that the applicant's fear of harm arose for a Convention reason and found that his circumstances did not bring him within the purview of the Convention. It is apparent that the RRT viewed the matter as a personal dispute involving the applicant and the father of his jilted bride, not as an issue of persecution. In that the RRT was in my view correct, and the decision might better have been left there, but the RRT went on to consider the issue of relocation within India. The crux of the RRT's decision in this respect was although the risk of harm to the applicant was real, and even if it could be accepted as a well founded fear of persecution, it could be avoided if the applicant simply relocated to another place in India. The father of the applicant's first intended wife is a local official of the Congress party. The applicant submitted and the RRT accepted that in the local community the influence of that gentleman was such that the applicant could not expect to receive protection from the local authorities. The RRT nevertheless concluded that that risk was limited geographically to the immediate place where the applicant lived and that the risk would disappear if the applicant relocated to another locality.

11. Mr Silva submitted to me that the RRT decision was deficient in that the RRT noted that the applicant had converted to Islam from Hinduism, but failed to consider whether that conversion placed the applicant at risk, if he relocated. He also submitted that the RRT had failed to comply with a fundamental obligation to consider whether the applicant was a member of a particular social group that faced persecution. Mr Silva, in his written submissions, has stated that two social groups required consideration. One is persons who have incurred deep personal enmity with powerful politicians in India and the other is Hindus who have converted to Islam.

12. Mr Silva referred me to the decision of his Honour Tamberlin J in SBBK v MIMIA [2002] FCA 565. In that case his Honour found that a decision of the RRT was vitiated by legal error because the RRT had failed to consider membership of a particular social group. It appears from that decision that his Honour found that such consideration was essential to the performance of the function conferred on the decision maker under section 65 of the Migration Act. That part of the decision was not supported in the decision of his Honour Allsop J in NAAG v MIMIA and I refer in particular to paragraphs 60 and 62 of that decision. Having considered both decisions, I prefer the approach of Allsop J.

13. Even if I were wrong in that, I would as submitted by Mr Kennett, need to take into account whether the first social group advanced by Mr Silva could properly be considered to be a social group at all. It seems to me from the decision of the majority in Applicant A & Anor v MIMA 190 CLR 225 that the particular social group must be identifiable within the community, although the particular characteristics of a social group should not be unduly limited. It is not legitimate in my view to identify the social group by reference to the simple fear of persecution. I find that the first purported social group identified by Mr Silva is not properly a social group at all.

14. Of course persons who convert from Hinduism to Islam are a particular social group identifiable within the community and it is a fact that there is a degree of conflict between Hindus and Muslims within India. The RRT noted at page 6 of its reasons and page 62 of the court book, that the applicant mentioned that he had been a Hindu but had converted to Islam as his wife was a Muslim. The RRT went on to note that the applicant did not refer to any adverse consequences of his conversion and made no claims in regard to the circumstance. One is left to speculate whether the RRT gave any independent consideration to the risk that the applicant might face by relocating from one part of India to another. I am prepared to accept that the RRT did consider the applicant's membership of the particular social group of such converts, but it seems to me likely that the RRT did not make any analysis of the risk factor consequent upon relocation, because the RRT considered that that was not a significant risk factor. That may have been simply because the applicant had not raised it or it may have been because the RRT took a general view that Muslims - even Hindu converts to Islam - could live without fear of persecution in various parts of India.

15. I do not consider that the RRT made any error in that analysis. I think it likely that the risk to the applicant as a convert to Islam could be avoided by relocation to parts of India with a substantial Muslim population. That, of course, goes to the merits of the RRT decision and it is not my function to review those merits. In terms of legal analysis, the highest that the applicant's case can be put is that the RRT failed to take into account a relevant consideration. I find that the issue was taken into account by the RRT but even if I were wrong in that, it would only be a ground of review under the general law. I have taken the view and I confirm that procedural fairness grounds of review under the general law are not available in the light of the privative clause. It is necessary to establish in the circumstances of this case, either that the decision of the RRT was not a bona fide attempt to exercise its powers or that there was a breach of an essential requirement in the Migration Act. I am not satisfied that the decision of RRT was anything other than a bona fide attempt to exercise the powers conferred on the RRT. Neither am I satisfied that any essential requirement of the Migration Act has been breached by the decision of the RRT.

16. The performance of the function conferred on the RRT by s.65 requires the exercise of judgement, but I do not see in s.65 any obligation to consider specifically risk factors relating to membership of a particular social group within a particular country. Even if it does, I agree with Allsop J in NAAG that s.474 of the Migration Act operates to immunise such a misdirection of law from challenge in review proceedings.

17. I am not able to identify any reviewable legal error in the decision of the RRT and in the circumstances there is no basis for me to disturb the decision of the RRT. Therefore I must dismiss the application.

18. I will make an order for costs. My general approach has been to fix an award of costs pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001. In a matter such as this the Minister could normally expect to receive an award of costs and disbursement somewhere in the range of $4,000 to $5,000 and in previous matters I have made award within that range. My view is that this matter is somewhat less complex than many matters coming before the Court and that is indicated by the relative simplicity of the decision of the RRT. In those circumstances I have come to the view that costs should be awarded at the bottom end of the range. I will order that the applicant pay the respondent's costs and disbursements of and incidental to this application, which I fix in the sum of $4,000.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 20 June 2002
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia