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MIGRATION - CITIZENSHIP - Review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa - operation of the privative clause in the Migration Act 1958 (Cth) - whether any reviewable error disclosed by the decision of the RRT - Applicant from Vietnam - whether the applicant was denied procedural fairness.

NASE v Minister for Immigration [2002] FMCA 304 (10 December 2002)

NASE v Minister for Immigration [2002] FMCA 304 (10 December 2002)
Last Updated: 13 December 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NASE v MINISTER FOR IMMIGRATION
[2002] FMCA 304



MIGRATION - CITIZENSHIP - Review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa - operation of the privative clause in the Migration Act 1958 (Cth) - whether any reviewable error disclosed by the decision of the RRT - Applicant from Vietnam - whether the applicant was denied procedural fairness.

Federal Court of Australia Act 1976 (Cth), s.32AB

Judiciary Act 1903 (Cth), ss.39B, 44

Migration Act 1958 (Cth), ss.91X, 474

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

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 (15 August 2002)



Applicant:
NASE



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 876 of 2002



Delivered on:


10 December 2002



Delivered at:


Sydney



Hearing Date:


16 October 2002



Judgment of:


Scarlett FM



REPRESENTATION

Solicitors for the Applicant:


In person



Counsel for the Respondent:


Ms Sant



Solicitors for the Respondent:


Sparke Helmore


ORDERS

(1) The Application is dismissed.

(2) The Applicant is to pay the Respondent's costs of the application, assessed at $4800.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 876 of 2002

NASE


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This is an application by the applicant, who is identified only by the letters NASE, for review of a decision by the Refugee Review Tribunal (hereafter referred to as "the RRT") about the refusal to grant a protection visa to him. The applicant is identified in this way rather than by the use of his name by reason of section 91X of the Migration Act 1958, the relevant parts of which provide that the Court must not publish, in electronic form or otherwise, the name of an applicant for a protection visa.

2. The applicant has made a written submission in this matter, as has Counsel for the respondent. There are no issues of fact in dispute in this matter.

Background

3. The applicant is a citizen of Vietnam. He was born on 14th February 1967, so he is 35 years of age. The Applicant arrived in Australia legally, on 2nd August 1994. He had been granted an Australian Student Visa. He enrolled at a college which taught English and attended there for two days each week for a period of about a month. He did not complete the course, and he did not return to Vietnam when his visa expired, nor did he apply for an extension.

4. The applicant lived in the community for eight years. He worked in a variety of occupations, until he was arrested whilst working at a factory in Revesby, NSW. On 5th March, 2002, he was placed in the Villawood Detention Centre, where he remains in detention. The applicant applied for a Protection (Class XA) Visa on 7th May 2002. His application was refused by a delegate of the Minister on 28th May 2002, so, on 31st May 2002, he applied to the Refugee Review Tribunal (hereafter referred to as "the RRT") for a review of that decision.

5. The RRT heard the applicant's case on 8th July 2002. A Vietnamese language interpreter was made available, and the applicant was accompanied by his migration agent. On 22nd July 2002, the RRT gave its decision, affirming the decision not to grant the applicant a protection visa.

6. The applicant then made application to the Federal Court for a review of the RRT's decision. On 6th September 2002, the Federal Court transferred the matter by consent to the Federal Magistrates Court for hearing.

Jurisdiction

7. The Federal Magistrates Court has been given the same jurisdiction as the Federal Court in relation to a matter arising under the Migration Act, by virtue of section 483A of the Act. Section 484 states that this Court and the Federal Court have exclusive jurisdiction in relation to privative clause decisions, other than the jurisdiction of the High Court of Australia.

8. Privative clause decisions are defined by s.474 of the Act:

"(1) A privative clause decision:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

(2) In this section:

Privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)."

9. Under the provisions of s.474 (2) of the Act, the decision by the RRT is a "privative clause decision". As a result of the legislative change made by the Migration Legislation Amendment (Judicial Review) Act 2001, where a person makes an application to review a privative clause decision on or after 2nd October 2001, the Federal Court, and therefore the Federal Magistrates Court, only has jurisdiction in respect of the proceeding pursuant to ss. 39B or 44 of the Judiciary Act 1903. Section 475A of the Act provides:

"Section 476 does not affect the jurisdiction of the Federal Court under section 39B or 44 of the Judiciary Act 1903 or section 39 of the Federal Magistrates Act 1999, or the jurisdiction of the Federal Magistrates Court under section 483A of this Act, section 44 of the Judiciary Act 1903 or section 32AB of the Federal Court of Australia Act 1976, in relation to:

(a) a privative clause decision that is a decision made on a review by a Tribunal under Part 5 or 7 or section 500; or

(b) any other decision in respect of which the court's jurisdiction is not excluded by section 476".

10. Section 476 of the Act provides that the Federal Court and the Federal Magistrates Court do not have any jurisdiction in relation to a primary decision. A primary decision is defined by subsection 476(6) as:

"a privative clause decision:

(a)that is reviewable, or has been reviewed, under Part 5 or Part 7 or section 500; or

(b)that would have been so reviewable if an application for such review had been made within a specified period."

11. The Federal Magistrates Court has jurisdiction to grant prerogative relief pursuant to section 39B of the Judiciary Act 1903. That jurisdiction, similar to that conferred on the High Court by s.75(v) of the Constitution, permits the Court to grant prerogative relief by way of prohibition or mandamus, or by way of an injunction about a decision of an officer of the Commonwealth.

The grounds of the application

12. The applicant claims that he has been subject to discrimination amounting to persecution, since he left school. He said that he applied for selection for training as a pilot in the Vietnamese Air Force, and was initially successful. What then happened was that he lost that selection because of jealousy by local and district officials, who said that he belonged to a reactionary family.

13. The applicant says that he sought to appeal against this decision and denounced the district authorities to the central government. His appeal was unsuccessful, but, he says, the local authorities have been harassing him and discriminating against him ever since. His applications for entry into the university, the Military Academy and the Police Academy were all unsuccessful.

14. The applicant says that he was (apparently) called up for National Service in 1986, and served for four years. The applicant claims to have deserted twice during that time because he was treated unfairly. Once he left the army, he was unable to get a job.

15. The applicant claims to have bribed government officials in order to be able to leave the country and travel to Australia on a student visa. He says that he and his travelling companions were approached by Vietnamese Government security agents and asked to spy on other Vietnamese living in Australia. Whilst he agreed, the applicant says that he never spied on anyone.

16. The applicant also says that he has been politically active since he arrived in Australia. He claims to have written and published within the Vietnamese community several letters critical of the present government of Vietnam. He fears that he will be punished by the authorities and imprisoned if he has to return to Vietnam.

17. The RRT affirmed the decision not to grant a protection visa to the applicant.

The applicant's submission

18. The applicant made an oral submission with the assistance of an interpreter. He was not legally represented. He said that he had written letters whilst in Australia voicing his disagreement with the Vietnamese government. He submitted a copy of the letter to the RRT, but it was not translated into English.

19. The applicant said that while he was preparing his application to go to the Federal Court, he was refused legal aid by the Legal Aid Commission. The commission told him that they could not have the letter translated. The letter was sent by him to the Vietnamese community in Australia, but he only signed it with a pen name. The letter set out the points on which he criticised the Vietnamese government.

20. It was the applicant's contention that the RRT did not let him fully express his view; he was stopped from saying things he wanted to say. The RRT, he said, did not want him to add further information to his answers. The applicant referred to the transcript of the hearing before the RRT, saying that there were a lot of things that he said that were not recorded (it turned out that he mean the copy of the RRT's decision).

21. The applicant claimed that Legal Aid assisted him to prepare his documents but they did not represent him. He said that there was a solicitor in court but the solicitor did not fight for him at all.

22. The applicant submitted that the RRT treated him unfairly by rejecting his application in haste. He said that this was evident because the RRT did not allow him to fully express himself; they kept on asking him to stop.

23. The applicant also claimed that there was a lot of oral evidence given that the RRT did not consider. He requested that the Court should listen to a tape of the hearing (there was no tape available). He went on to say that everything he put to the RRT was the truth.

24. The applicant went on to complain about the original decision by the delegate of the Minister to reject his application. He said that this decision had also been made unfairly.

The respondent's submission

25. Ms Sant, counsel for the respondent, made a written submission, and then spoke briefly to that submission. In her written submission, Ms Sant stated that the RRT had rejected the applicant's claims as not being credible, saying that his evidence contained contradictions and inconsistencies. The RRT had found that some of the applicant's claims were inconsistent with available country information, and, importantly, in my view, drew an adverse inference about his subjective fear of persecution from the fact that he did not apply for refugee status for 8 years after he arrived in Australia, and only then after he was arrested and detained. The RRT had concluded that the applicant did not have a genuine fear of persecution either at the time of his departure from Vietnam or at the time of hearing. The RRT was not satisfied that the applicant had ever suffered persecution in Vietnam because of his political opinions or for any other Convention-related reason. The RRT considered that the applicant did not have a well-founded fear of suffering persecution in the future.

26. Counsel for the respondent submitted orally that the applicant's grounds could be described as falling into two categories:

(a) that the RRT should have accepted his evidence and made factually incorrect findings; and

(b) that he was denied procedural fairness, in that he submitted a document to the RRT that was written in Vietnamese without providing a translation.

27. Counsel for the respondent submitted that the decision of the RRT is a privative clause decision as defined by s.474, the effect of which has been set out by the Full Court of the Federal Court in NAAVv Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228. In that case, the Court held that the effect of s.474 is to expand the lawful decision-making authority of decision-makers by validating decisions made under the Act, even where they have fallen into error, subject to some limited provisos. The provision is to be interpreted in accordance with the principles laid down by the High Court in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598.

28. It was submitted also that the following pre-conditions to the valid exercise of decision-making powers to which a privative clause apply:

(a) the decision-maker is required to have made a bona fide attempt to exercise its power;

(b) the decision must relate to the subject matter of the legislation;

(c) the decision must be reasonably capable of reference to the power given to the decision-maker;

(d) a valid decision cannot exceed constitutional limits; and

(e) inviolable limits or constraints may be imposed by the relevant statute.

29. Counsel for the respondent submitted that the RRT decision is valid and there are no grounds for judicial review; none of the pre-conditions referred to in paragraph 28 have not been fulfilled. The decision, dealing with the grant of a visa, was clearly within the subject matter of the Act. The decision is also reasonably capable of being referred to the power under which it was made. There is no allegation of bad faith, and no breach of an inviolable limitation or constraint. Ms Sant stated that the applicant's two grounds - an error on the facts, and a failure to provide procedural fairness - do not give rise to judicial review.

Conclusions

30. The short answer is that I accept the respondent's submission. It is quite clear that the major part of the applicant's case is a claim that the RRT was factually wrong. It is clear that an application to this Court is not a rehearing of the substantive issues of the case. The RRT's decision is a privative clause decision, as set out by s. 474. Whilst the applicant contends that the RRT's decision is erroneous on the facts, the decision cannot be reviewed by the Court unless there has been shown to have been a breach of one of the principles referred to above.

31. The applicant also claims that there was a breach of procedural fairness, in that he was not able to have his copy of the letter he wrote to the Vietnamese community translated into English. The material does not show any lack of procedural fairness. The RRT was prepared to accept that he had sent letters critical of the Vietnamese government, even without a translation, but did not believe that he faced persecution on his return to Vietnam because of those letters.

32. It also appears that the applicant was given ample opportunity to provide more information to support his case. The hearing took place on 8th July 2002. He presented two submissions through his migration agent, who represented him. He asked for time to provide more written evidence. He forwarded a further 4 submissions to the RRT, on 10th, 11th, 15th and 19th July 2002. All of these were considered by the RRT, as can be seen from pages 11 and 12 of the decision.

33. I am not satisfied that the applicant was denied procedural fairness by the RRT. It appears to me that he was warned at the hearing that the RRT was considering making a finding unfavourable to his application, and he was then given opportunity to present further evidence or a further submission. He in fact submitted a further four submissions, all of which were considered. I am satisfied that he was given ample opportunity to present his case and address the issues.

34. I find that the applicant is not entitled to relief pursuant to section 39B of the Judiciary Act. The application must be dismissed.

35. In this jurisdiction, costs follow the event, and, as the applicant has been wholly unsuccessful in these proceedings, there should be an order for costs in favour of the respondent. I am satisfied that costs should be assessed on the basis of stage 2 of the Federal Magistrates Court scale of costs.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date:
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