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MIGRATION - Review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant a protection visa - no reviewable error disclosed - application dismissed.

VEAR v Minister for Immigration [2003] FMCA 28 (30 January 2003)

VEAR v Minister for Immigration [2003] FMCA 28 (30 January 2003)
Last Updated: 13 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VEAR v MINISTER FOR IMMIGRATION
[2003] FMCA 28



MIGRATION - Review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant a protection visa - no reviewable error disclosed - application dismissed.



Migration Act 1958 (Cth), s.474

Evidence Act 1995 (Cth) s.48

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA FC 228

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

NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 293

SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 574

Daihatsu Australia v Federal Commissioner of Taxation (2001) 184 ALR 576

SBAT v Refugee Review Tribunal [2002] FCA 590

SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1088

SBAU v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1076

SCAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1377

R v Hickman: ex parte Fox v Clinton (1945) 70 CLR 598

Applicant:
VEAR



Respondent:


MINISTER FOR IMMIGRATION

& MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ772 of 2002



Delivered on:


30 January 2003



Delivered at:


Melbourne



Hearing date:


30 January 2003



Judgment of:


Hartnett FM

Ex tempore


REPRESENTATION

Counsel for the Applicant:


In person



Counsel for the Respondent:


Ms Riley



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

THE COURT ORDERS THAT:

(1) The application filed the second day of July 2002 is dismissed.

(2) The applicant is to pay the costs of the respondent as agreed or in default as taxed.

IT IS CERTIFIED THAT:

(3) Pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance of counsel as advocate.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MZ772 of 2003

VEAR


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. These proceedings were transferred from the Federal Court of Australia to the Federal Magistrates Court pursuant to order 82 Rule 7 of the Federal Court Rules by order of Marshall J on 2 August 2002. This is an ex tempore judgment.

2. At the hearing before me the applicant relied upon his application filed 2 July 2002; an affidavit sworn by him filed 2 July 2002 and a document handed up by him on the hearing of the matter which was by way of response to the respondent's contentions of fact and law. The respondent filed the Court Book and relied upon it together with contentions of fact and law and a transcript of the proceedings before the Refugee Review Tribunal held on 15 May 2002 with such transcript being provided by Spark and Cannon the authorised transcriber. This transcript was filed in the Court by the respondent on 29 January 2003. A copy was received by the applicant on the day before the hearing. Such transcript was tendered in the proceedings before me pursuant to s.48 of the Evidence Act 1995 (Cth). The applicant sought to tender a bundle of typed documents which he claimed to be a transcript of the Refugee Review Tribunal hearing. The provenance of such bundle of documents remained unknown and I declined to admit such documents into evidence in the proceedings.

3. The applicant appeared in person. The respondent was represented by counsel. The applicant was both at the Tribunal hearing and before me assisted by an interpreter qualified in the Russian language and proficient in the Georgian and Armenian languages. Mr Safarian, the interpreter, took the oath of an interpreter as to his obligations in the proceedings before me at the commencement and also gave evidence as to his qualifications and experience as an interpreter. In particular he gave evidence as to his familiarity with the Georgian language as well as the fact that he had been called upon to assist with possible interpretation requirements for the English and Georgian languages in Western Australia, Sydney and Melbourne due to the few available interpreters in the Georgian language. I was satisfied that he is a person suitable to adequately and accurately interpret in these proceedings. The applicant complained about the provision of Mr Safarian as his interpreter claiming that he did not in the Tribunal hearing interpret all of the things which he put to the Tribunal. He claimed that approximately 30 per cent and subsequently claimed the quantum to be 40 per cent of what he said at the Tribunal hearing was not included in the transcript. I have no evidence before me to support that assertion. The applicant was given considerable opportunity this day to put matters before me in addition to those matters contained in his material. In effect the applicant seeks from this Court a merits review which this Court is not able to provide.

4. As to the applicant's claims with respect to the interpreter I refer also to the decision of the Refugee Review Tribunal on page 4 therein that noted the applicant in his protection visa application, to state that he was born in Georgia in December 1955 and could speak, read and write in the Georgian language and that he could also speak in the Russian language. However, although the interpreter in these proceedings gave evidence that he was qualified as an interpreter in the Russian language and that he was familiar with the Georgian language the applicant indicated that he did not speak in the Russian language and required the interpreter to interpret to him in the Georgian language.

5. The applicant arrived in Australia on 27 June 1999 on a visitor's visa. He was born in Hashuri in Georgia and remains a Georgian citizen. The applicant applied for a protection visa on 14 September 2000. A delegate of the Minister refused the application on the 27 September 2000. The applicant subsequently applied to the Refugee Review Tribunal for review of that decision on 27 October 2000 and following a hearing on the 15 May 2002 the Tribunal affirmed the decision under review, the date of such decision being 21 May 2002.

6. The Tribunal accepted that the applicant had been a member of the White Eagles from 1991 to 1994 and fought in the Abkajzain civil war. I accept as accurate and include in these reasons the summary of the Tribunal's findings as contained in the respondent's contentions of fact and law filed 10 December 2002 in particular that;

a) the Tribunal did not accept that the applicant and his colleagues tried to form a political party from 1994. The Tribunal noted that there was no independent country information to the effect that they tried to form a political group to oppose the government and contest elections or that any such group was prevented from registering. Furthermore, the Tribunal considered that the applicant's description of his political activity and steps to register the party was simplistic and uninformed and was not a description one would expect from a person in a leadership position;

b) the Tribunal did not accept that the applicant was interrogated or mistreated in 1996 or 1997 or his house searched in relation to political activity. The Tribunal noted that country information did not support the claim that Georgian nationalists, except Zviadists and suspected coup-plotters were mistreated. The Tribunal also noted, contrary to the applicant's claims, that country information showed that there was no requirement for household registration in Georgia in 1999. The Tribunal considered that the claim was contrived;

c) the Tribunal did not accept that the applicant's son's injuries were inflicted by the police or that the applicant's brother's legal difficulties were caused by the applicant's political position. The Tribunal considered that the delay in the applicant's lodgment of his application for a protection visa cast doubt on the genuineness or depth of his claim of persecution and found his explanation unpersuasive;

d) In the circumstances the Tribunal concluded that the applicant did not have a well-founded fear of persecution and affirmed the decision under review.

7. The Tribunal's decision is a privative clause decision. That is as contained in s.474 of the Migration Act 1958 (Cth). The effect of s.474 was considered by a five member Full Court of the Federal Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA FA 228. On the current state of the authorities that decision is binding on this Court.

8. The effect of that decision is to expand the jurisdiction of the relevant decision-maker. The so-called "Hickman" conditions[1] are required to be satisfied by the decision-maker. These decisions require that the decision:

(a) be a bona fide attempt to exercise the power which the Migration Act 1958 reposes in the decision-maker; and

(b) relate to the subject matter of the Migration Act 1958; and

(c) be reasonably capable of reference to the power given by the Migration Act 1958 to the Tribunal.

In addition a decision will not be protected from judicial review if it contravenes what, in the reasons of the majority in NAAV v MIMIA above, is described as an "inviolable" condition or a "jurisdictional factor" or "structural elements".

9. The applicant has not put to the Court and nor do I find a breach of (b) or (c) in the preceding paragraph nor is there suggested by the applicant nor do I find a contravention of an inviolable condition.

10. What is claimed by the applicant is that the decision-maker did not make a bona fide attempt to exercise the power reposed in her. This is a serious allegation.

11. In NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA FC 293 (18 September 2002) Keifel J, in the Full Court, highlighted the seriousness of the allegation of bad faith. Her Honour said that (31):

"... Beaumont J in NAAV (107) refers with approval to the decision of Allsop J in NAAG of 2002 v the Minister for Immigration and Multicultural and Indigenous Affairs 2002 FCA 713 (24) and the cases there referred to, where His Honour held that bad faith in this context implies a lack of an honest or genuine attempt to undertake the task and involves a personal criticism of the Tribunal or officer in question. I respectfully agree ... it should not be, but it seems to be, necessary to restate that an allegation of bad faith is a very serious allegation and should not be made without a proper foundation in fact, especially by legal practitioners.

12. In NAAG of 2002 v the Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713, Allsop J said;

"... Dixon J in R v Murray; ex parte Proctor, supra at 400, made it clear that the phrase involved an "honest" attempt to deal with the subject matter conferred to the executive. Bad faith is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or a genuine attempt to undertake a task in a way meriting personal criticism of the Tribunal or officer in question. Finn J, in Daihatsu Australia v the Federal Commissioner of Taxation (2001) 184 ALR 576 at (36) referred by way of exemplification, to the exercise of a power knowingly for an improper purpose or where no attempt is made, knowingly, to act conformably with duty. Heerey J, in SBAP v Refugee Review Tribunal (2002) FCA 590 at (47) said that the phrase "bona fide" involved a serious question involving personal fault on the part of the decision-maker going beyond error of fact or law. It must be clearly identified and proved. I agree.

13. In SAAG v the Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 574, Mansfield J said:

"... I am also mindful of the judicial strictures against making a finding of lack of good faith on the part of an administrative decision maker too readily. The reasons for that approach are clear. Again, they are discussed by Finn J in Daihatsu at (32) and (36). It will be a rare and extreme case in which an administrative decision maker will be shown not to have acted in good faith.

14. Notwithstanding the above, instances of lack of bona fides have been made out. Mansfield J in SAAG v the Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1088 held that the Tribunal in that case had acted without bona fides. At (36), His Honour said that the Tribunal had approached its task, not by asking whether the applicant had a well-founded fear of persecution for a Convention reason, but by asking whether there was evidence that would enable the Tribunal to reject the applicant's claim.

15. Additionally, in SCAZ v the Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1377, von Doussa J found that the Tribunal had acted arbitrarily and capriciously in refusing an adjournment and had acted with reckless disregard of the provisions of s.425A of the Migration Act . His Honour found in the context of that case that the Tribunal's conduct amounted to acting in bad faith.

16. I have read the Tribunal's decision and material filed in these proceedings and listened to the submissions of both parties. I can find nothing to support the claim made by the applicant. The Tribunal's decision depended on findings of fact which were within the province of the Tribunal to determine.

17. The Tribunal did not accept the applicant was engaged in any political activity. The applicant claims in these proceedings that the interpreter did not have a good command of the Georgian language and misinterpreted some of the applicant's evidence. Throughout the applicant did not specify which evidence he says was misinterpreted nor how that impacted upon the decision. Nor does the applicant elaborate upon that evidence which he says is omitted or its relevance to the decision. At no time prior to the receipt of the decision of the Refugee Review Tribunal did the applicant complain as to the adequacy of the interpreter. Indeed, on page 3 of the transcript the Tribunal advised the applicant as follows:

"Now, the interpreter is here only to interpret what I say and what you say and what your adviser says in the hearing. He may not provide advice or make suggestions either to you or to me about your plans. You need to let me know now or at any stage in the hearing if you are having any trouble understanding the interpreter, and the interpreter can interrupt if he has difficulty understanding any of us. Now, do you understand this interpreter properly or do you have any objection to using this particular interpreter."

18. The applicant responded that "no it's all right."

19. At the time of the Tribunal hearing the applicant was represented by a migration agent. The agent was conscious of interpreting issues and corrected some errors in the initial application that he said arose from interpreting problems at that time. The agent also said during the hearing that the applicant had told him something earlier in the day that the applicant had not said during the hearing. The agent queried whether this arose from an interpreting problem. The interpreter said that the applicant had not mentioned the matter. The agent, during the hearing, indicated that he accepted that the applicant had not mentioned the matter and did not pursue the question of interpretation (see page 27 of the transcript).

20. Given the above it was reasonable for the Tribunal to accept that the standard of interpretation during the hearing was adequate. There is no evidence before me of the Tribunal "knowingly" using an interpreter not capable of correctly putting the applicant's case before the Tribunal. This claim made by the applicant must also be rejected. The interpreter in the hearing before the Tribunal and again in this hearing took an oath that he would interpret accurately to the best of his ability. There is no factual basis for a conclusion to be drawn to the contrary.

21. The applicant further alleges that the Tribunal "purposely ignored relevant facts and issues."

22. To ignore relevant material or ask the wrong question are errors that are no longer grounds for review in the migration context. The question for this Court is the allegation by the applicant that the Tribunal "purposely" did so and whether in so doing that would constitute bad faith on the part of the Tribunal. However, there is nothing before me which would lead me to conclude that the Tribunal ignored relevant material or asked a wrong question. Therefore, this claim made by the applicant must also fail.

23. In the circumstances of this case s.474 of the Migration Act 1958 must be applied and the application is dismissed. The applicant is to pay the respondent's costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate:

Date:


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[1] R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 614 to 616
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