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

NAPX v Minister for Immigration [2002] FMCA 283 (13 November 2002)

NAPX v Minister for Immigration [2002] FMCA 283 (13 November 2002)
Last Updated: 26 November 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAPX v MINISTER FOR IMMIGRATION
[2002] FMCA 283



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



Administrative Decisions (Judicial Review) Act 1977 (Cth), s.13

Migration Act 1958 (Cth), ss.420, 430, 474

NAAV v Minister for Immigration [2002] FCAFC 228

WADK v Minister for Immigration [2002] FMCA 175

Applicant:
NAPX



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ788 of 2002



Delivered on:


13 November 2002



Delivered at:


Sydney



Hearing Date:


13 November 2002



Judgment of:


Driver FM



REPRESENTATION

Solicitors for the Applicant:


Mr C Jayawardena



Counsel for the Respondent:


Mr R Bromwich



Solicitors for the Respondent:


Clayton Utz



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 $3,800.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ788 of 2002

NAPX


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 14 June 2002 and handed down on 4 July 2002. The application was originally filed in the Federal Court on 29 July 2002 and has been transferred to this Court by order of his Honour Hely J on 15 August 2002. In the light of the date of filing of the application for review it is clear that the application is caught by the provisions of the privative clause in s.474 of the Migration Act 1958 (Cth) ("the Migration Act"). That has a significant impact upon the grounds of review that are available to the applicant.

2. The background facts in this matter are set out in paragraphs 1 to 7 of the written submissions prepared on behalf of the respondent Minister. I accept that statement of background facts as accurate and adopt them for the purposes of these reasons:

On 6 March 2001, the applicant, a citizen of Sri Lanka arrived in Australia. On 4 April 2001, he applied for a protection visa. He claimed to fear persecution from members of the Janatha Vimukthi Peramuna (JVP), a political organisation opposed to the aims and objectives of the Liberation Tigers of Tamil Eelam (LTTE).

On 7 May 2001, the respondent's delegate refused the grant of the protection visa sought. On 4 July 2002 the Refugee Review Tribunal handed down a decision made on 14 June 2002 affirming the delegate's decision by reason of adverse factual findings.

The applicant's claims arose from events that took place when he was a child at the age of 7 (1986) when he claimed the JVP had tried to recruit him, and when he was 8 (1987) and 12 (1991) when he claimed the JVP had been behind robberies at the family business.

The applicant further claimed that demands had been made for money between 1998 and 2002 by unknown subversive groups claiming to be associated with the JVP. No link was asserted between the demands for money and any Convention ground.

In summary, while the Tribunal accepted that robbery of the applicant's father's shop may have occurred, the rest of the claims were rejected as being untrue. The Tribunal noted that the applicant was a child for virtually all of the time when the alleged robberies and things happened and nothing actually happened to him or to any member of his family, despite him going to the same school from 1985 to 1998 and the family living at the same address for 12 years from 1989 to 2001.

The Tribunal found that the applicant was not a credible witness and had fabricated his claims of being of adverse interest to the JVP to advance his application for a protection visa.

3. The applicant advances four grounds for review of the decision of the RRT. These are that there was a breach of a duty to consider all substantive issues raised; a breach of a duty to give reasons based on s.430 of the Migration Act; a breach of a duty to make inquiries; and a failure to give reasons for not accepting the applicant as a credible witness, based again on s.430.

4. Those grounds are elaborated upon in written submissions prepared

on behalf of the applicant by Mr Jayawardena. In addition, Mr Jayawardena made oral submissions today in which he argued in addition to what he says in his written submissions, that the decision of the RRT is reviewable notwithstanding the privative clause on the basis of an asserted breach of an inviolable precondition on the exercise of power by the RRT in s.420(2)(b) of the Migration Act.

5. I have considered the review grounds somewhat out of order. The third ground, which is the first that I consider, is that the RRT allegedly breached a duty to make inquiries. In my view, there is no general duty on the RRT to make its own inquiries, although it is clearly empowered to do so. The RRT is an inquisitorial body but in the ordinary course it is entitled to rely upon the material that is put before it. In particular circumstances the RRT may reasonably be required to go further and pursue its own inquiries in the light of the material that has been put before it.

6. In the present case the applicant asserts that further inquiries should have been made and that the RRT should not have simply concluded that the applicant had fabricated his claims. On this issue I agree with submissions made on behalf of the Minister by Mr Bromwich, that the assertion of a breach of a duty to make inquiries cannot be made out.

7. The finding and reasons of the decision of the RRT are set out on pages 69 and 70 of the court book. It is apparent from those findings and reasons that the applicant was disbelieved. In particular, the presiding member did not accept that the applicant had been sought to be recruited as a child in Sri Lanka by any political organisation. In addition, the presiding member concluded that even if he had been sought to be recruited and had resisted that attempted recruitment, the incidents were far in the past. The presiding member found that the applicant would not now be reasonably subject to persecution should he return to Sri Lanka.

8. In my view, those conclusions, whether or not I agree with them, were reasonably open to the RRT on the basis of the information before it, and it was not necessary for the RRT to make inquiries beyond the material that was put before it relating to the claims made on behalf of the applicant.

9. The second ground of challenge advanced by the applicant is that the RRT breached a duty to give reasons in s.430 of the Migration Act. That section provides that where the RRT makes its decision on a review, the RRT must prepare a written statement that sets out the decision of the RRT on the review and sets out the finding on any material questions of fact and refers to the evidence or other material on which the findings of facts were based. This is a common requirement upon decision-makers and reflects the obligation imposed generally upon decision-makers under s.13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

10. I am satisfied that the RRT has complied with its obligation under s.430 of the Migration Act. It has produced reasons for its decision. Those reasons, while in the important part brief, do convey sufficiently an explanation of the process of reasoning which led the presiding member to his decision. The reasons also set out adequately, in my view, the findings on material questions of fact and refer to the evidence upon which those findings were based.

11. Relevantly, the material questions of fact were whether incidents had occurred as alleged by the applicant. The presiding member states that he accepts that certain incidents may have occurred, such as robbery of the applicant's father's shop, but the presiding member clearly did not accept that the applicant had sought to be recruited by the JVP (page 13 of the reasons at page 69 of the court book). Again, whether or not one agrees with that finding, the finding is clearly made and adequately if briefly explained by the presiding member. I therefore find that the second ground advanced by the applicant fails.

12. The first ground of review (which is the third that I consider) is an asserted breach of a duty to consider all substantive issues raised by the material and the evidence. I am satisfied that the RRT gave adequate, if brief, consideration to all of the matters advanced on behalf of the applicant. I do not consider that the RRT was obliged to do anything further.

13. The fourth ground advanced by the applicant is that the RRT made an insupportable conclusion as to the applicant's credibility. It is clear from the decision and reasons of the presiding member that this was fundamental to the RRT's decision to confirm the delegate's decision to refuse to grant a protection visa.

14. The presiding member clearly rejected out of hand the assertions that the applicant had sought to be recruited by the JVP as a child. The presiding member found that these assertions were fabricated in order to support the applicant's claim to a protection visa. Mr Jayawardena submitted that the RRT made a factual error in that the presiding member placed emphasis on the implausibility of the applicant being sought to be recruited at the tender age of seven to nine when in fact the applicant had asserted that the first recruitment attempt had occurred when he was 12. Nevertheless, it is apparent from the material advanced in writing by the applicant, commencing with his statement in support of his protection visa application (court book, page 15), that the applicant himself placed stress on incidents occurring as early as 1989 when he was eight, and also stated that the political circumstances leading to his fear of persecution commenced one year earlier in 1988.

15. The assertion was supported by a police report appearing in the court book at page 52. That police report refers to an incident occurring in 1987. I did not have before me any transcript of the proceedings before the RRT, but on the basis of the material in the court book I am satisfied that there was material before the RRT that could reasonably have led to a conclusion that the applicant was advancing a case of asserted persecution from at least the age of eight years of age, and, in the circumstances, it was reasonably open to the presiding member to draw conclusions based upon that material.

16. I do not necessarily agree with the conclusion reached by the presiding member. It seems to me that the presiding member has in a perfunctory way dismissed the applicant's story on the basis that it is inherently implausible that the applicant could have been sought to be recruited at such an age. In my view, it is not necessarily implausible when one looks at country information, not necessarily restricted to Sri Lankan country information, concerning the recruitment of children by political organisations of various kinds to support their activities. It is not apparent to me whether the presiding member had any regard to country information along those lines.

17. However, an error of fact on the part of the RRT does not necessarily constitute an error of law and indeed will generally not do so. In addition, it is not open to me to review merits of the RRT decision. The function of this Court is to determine whether any legal error was made by the RRT sufficient to vitiate the decision of the RRT. As matters now stand, that consideration must be made in the light of the privative clause in the Migration Act. The privative clause has been considered upon a number of occasions now by the Federal Court. I am in particular bound by the decision of the Full Federal Court in NAAV v Minister for Immigration [2002] FCAFC 228.

18. While there has been some debate about the ratio of that decision, it is clear that the privative clause has been accepted as valid and that the effect of the privative clause has been to confine grounds of review of a privative clause decision to those commonly described as the Hickman provisos, and in addition thereto, to the ground of a breach of an inviolable pre-condition on the exercise of power by the RRT. Mr Jayawardena has not asserted any breach of a Hickman proviso. In particular, he has not asserted that the decision of the RRT was not made in good faith. There is, in my view, no basis on which such an assertion could have been made.

19. In the circumstances, the question to be resolved is whether there was a breach of an inviolable pre-condition to the exercise of power. Mr Jayawardena has submitted that there has been a breach of s.420(2)(b) of the Migration Act, which requires that the RRT in reviewing a decision must act in accordance with substantial justice and the merits of the case.

20. I have in several decisions found that s.420(2)(b) is a jurisdictional pre-requisite to the exercise of power by the RRT. I have also found, however, that it is not any error of law that will establish a breach of section 420(2)(b). I have expressed the view in WADK v Minister for Immigration [2002] FMCA 175 that it is necessary to establish either fraud, bad faith, bias, acting under dictation, the application of a rule or policy without regard to the merits of the particular case, no evidence, Wednesbury unreasonableness or abuse of power in order to establish a breach of s.420(2)(b) that provides a ground of review in light of the privative clause.

21. In my view, the applicant cannot satisfy me that such a ground can be made out in these proceedings. It is not asserted that there has been any fraud, bad faith or bias or that the presiding member acted under dictation. Neither is it asserted that the presiding member applied a rule or policy without regard to the merits of the particular case. It might be asserted that there was no evidence before the RRT to justify the adverse conclusion on credibility or that the decision of the presiding member was on that point capricious, justifying a finding

of Wednesbury unreasonableness. I do not, however, accept that submission if it were to be made in those terms.

22. In my view, the findings on credibility, though they may not necessarily have been findings that another decision-maker would have made, were reasonably open to the presiding member on the basis of the material before the RRT. I do not consider that there was any abuse of power by the presiding member constituting a breach of s.420(2)(b). Accordingly, I conclude that there has been no breach of that section and hence, no breach of an inviolable pre-condition to the exercise of power by the RRT.

23. In the circumstances, the application must fail in the face of the privative clause. It is arguable that the applicant might have succeeded on some ground of review in the absence of the privative clause on the basis of the perfunctory way in which the presiding member dealt with the issue of credibility and the crucial issue of whether the applicant had been sought to be recruited as a child to engage in some form of political activity.

24. I have decided that it is not necessary for me to draw any conclusion as to whether any ground of review could be made out on that issue in the absence of the privative clause. My conclusion is that the application fails in the face of the privative clause. In the circumstances I will dismiss the application.

25. On the question of costs Mr Bromwich has, on behalf of the Minister, sought an order for costs and has invited me to fix an amount of costs in the range of $3,500 to $4,000. Mr Jayawardena has, in effect, conceded that he could not resist an order for costs in the circumstances of the failure of his client's application. It is appropriate that an order for costs be made and consistently with my general practice, I will fix an amount of costs.

26. Having regard to the amount of preparation required on behalf of the Minister in these proceedings and the necessity to arrange legal representation for the trial before me today, including the retention of the services of an advocate and an instructing solicitor, I am satisfied that an award of costs in the sum of $3,800 would be adequate and reasonable. I will therefore order that the applicant pay the respondent's costs and disbursements of and incidental to the application which I fix in the amount of $3,800.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 22 November 2002
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia