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MIGRATION: Review of Decision of Refugee Review Tribunal - s.39B of Judiciary Act - No Jurisdictional Error - Application Dismissed.

NAKY v Minister for Immigration [2002] FMCA 346 (29 November 2002)

NAKY v Minister for Immigration [2002] FMCA 346 (29 November 2002)
Last Updated: 5 November 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAKY v MINISTER FOR IMMIGRATION
[2002] FMCA 346



MIGRATION: Review of Decision of Refugee Review Tribunal - s.39B of Judiciary Act - No Jurisdictional Error - Application Dismissed.



Judiciary Act 1903

Migration Act 1958

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

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 498

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 467

NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293

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

Applicant:
NAKY of 2002



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ500 of 2002



Delivered on:


29 November 2002



Delivered at:


Sydney



Hearing Date:


29 November 2002



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Mr J D Smith



Solicitors for the Respondent:


Sparke Helmore Solicitors


ORDERS

(1) That the application be dismissed.

(2) That the applicant pay the respondent's costs fixed in the amount of $5,000 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ500 of 2002

NAKY of 2002


Applicant

And

MINISTER IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Background

1. This is an ex tempore judgment in the matter of NAKY and the Minister for Multicultural and Indigenous Affairs. The applicant is a national of Sri Lanka who came to Australia on a student visa in February 1997. He applied for a protection visa in May 1997. The application was refused on 19 February 1998. He sought review by the Refugee Review Tribunal (the Tribunal).

2. On 29 May 2002 the Tribunal handed down a decision affirming the decision of the delegate of the Minister not to grant a protection visa to the applicant. The applicant sought review in the Federal Court under section 39B of the Judiciary Act 1903 on 6 June 2002. The matter was transferred by this court, by consent, by Beaumont J on 8 July 2002. In an affidavit accompanying his application, the applicant claimed relief on the grounds that the Tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction.

3. No further particulars were filed. An amended application was not filed, nor were any written submissions filed by the applicant despite the fact that orders to that effect were made by consent on 4 July 2002. Instead, in August 2002 the applicant sought an adjournment on the ground that he was seeking a review of a decision to refuse him legal aid. When the matter came on for hearing on 5 September 2002 an adjournment was granted so that his application for review of the decision not to grant legal aid could be determined. Legal aid was not granted to the applicant.

4. At the start of the hearing on 29 November 2002 the applicant sought a further adjournment in order to seek legal representation and also to get access to documents under the Freedom of Information Act. In his submissions the applicant made much of the fact that he did not have legal representation. While I understand his concerns, I consider that he has had adequate time and opportunity to obtain legal representation. However, as he is self represented, despite the absence of any identification of grounds for review beyond some general submissions that I will return to, I have considered whether the Tribunal reasons for decision and the other material before the court reveals any reviewable error.

The Tribunal Decision

5. The applicant claimed that he had been arrested and detained several times by the authorities in Sri Lanka. He claims that he fears persecution in Sri Lanka because of his race as a Tamil male from the north of the country and because of an imputed political opinion being that of support for the LTTE. He also made claims on the basis of fears he would have as a failed asylum seeker and because he had scars which he claimed were the result of torture.

6. The claims in relation to fear based on race and imputed political opinion are detailed at length in the Tribunal's reasons. They relate to a claim that his brother was forced to become a member of LTTE and that because of this as well as his ethnicity the applicant had been arrested, detained, interrogated, and tortured. He detailed a number of occasions on which he said that such events had occurred.

7. The Tribunal considered the applicant's claims at some length. It considered the documents lodged and claims made by the applicant in connection with his protection visa application as well as in connection with his student visa application. It compared claims made in the Tribunal hearing. The Tribunal found several areas of inconsistency or implausibility in the applicant's claims. It raised these areas with him at the hearing. It also put them to the applicant in a detailed notice issued under section 424A of the Migration Act 1958 inviting written comment on such matters. The applicant did in fact make further submissions.

8. The Tribunal concluded that there were significant problems with the applicant's credibility. Essentially the Tribunal considered each of the claims one by one and rejected them. A major reason for the rejection was the inconsistency of the protection visa claims with the claims made and information provided in relation to his application for a student visa. In particular the applicant claimed that he had only moved from the north of the country to live in Colombo in 1997. His national identity card contradicted this and indicated that he was in fact living in Colombo at an earlier time. The national identity card, dated 28 October 1992, indicated an address in Colombo at that time. The information in the applicant's student visa application was consistent with that card. Given this conflicting information the Tribunal rejected the applicant's claim that he had been arrested and mistreated in the north of the country in 1993 because it found that at that time he was resident in Colombo.

9. The Tribunal also expressed concern about the credibility of some other aspects of the applicant's claims based on other inconsistencies and implausibilities which it discussed at length. It did accept that an earlier incident in 1988 involving a brief detention of the applicant by the Indian peace keeping force may have occurred, but noted that the IPKF left Sri Lanka in 1990 and therefore no longer presented any threat to the applicant. It did not accept the claim that the applicant had been arrested by the police in Colombo in September 1995 after a bomb was found in a lorry near a Buddhist Temple. The Tribunal referred to, and put to the applicant, independent information that the incident referred to had not occurred until after January 1996. It indicated that it considered that it stretched credulity that there should have been two such incidents within a few months of each other.

10. The applicant also claimed that he had been arrested in January 1996 and taken to a particular army camp. Again doubt was cast on the claim in the mind of the Tribunal because of the fact that there was no army camp in the suburb he referred to and because of contradictions in his claims. He also claimed to have been arrested in September 1996, taken to an army camp, detained, interrogated for a month, taken to a CID building, beaten and tortured and kept there for two months. The Tribunal noted that the applicant's evidence in this regard had changed. It put this concern to the applicant. It found that the inconsistencies in his evidence with regard to where he was detained and whether he had been before a Court at this or any other time cast doubt on whether he was telling the truth about the incident. Each of the specific claims to have been arrested and detained was affected by some inconsistency with other claims or with information known to the Tribunal.

11. The Tribunal also detailed inconsistencies in the evidence of the applicant about his father's residence, travel and property. In relation to the applicant's claim to have scars from torture the Tribunal noted that the applicant had undergone a medical examination in connection with a Student Visa application in January 1997 (approximately a month after he claimed to have last been tortured and beaten) and that the examining doctor had found no significant abnormalities whatsoever. The Tribunal accepted the Department's advice that such medical examinations were rigorous and that any scars would be reported. It did not accept that the examining doctor would have failed to notice if, as the applicant claimed, he had been severely tortured only a month before the medical examination. The Tribunal referred to information provided by the applicant in support of his claim from a psychologist and a professor in the Department of Psychiatry at the University of Melbourne, accepting the opinions as the opinions of properly qualified professionals but noting that they were based on the recounted history by the applicant.

12. The Tribunal considered each claim and each document submitted by the applicant at length. It detailed numerous inconsistencies and inadequacies in the claims. Two letters submitted (from a lawyer and a Justice of the Peace) conflicted with later claims. The Tribunal concluded that while individually, any one of the problems with the evidence which was detailed might not be sufficient to reject it, taken together the weight of the evidence indicated that the applicant was not a credible witness. The Tribunal did not accept that the applicant had been detained and tortured as claimed or that his brother or indeed, his cousin, had been forcibly recruited by the LTTE.

13. It considered that document provided in connection with his Student Visa application, in particular his National Identity Card and some documents purporting to indicate residence in Colombo, were genuine documents. On the information before it the Tribunal was satisfied that the applicant and family returned to Colombo no later than October 1992. Hence it did not accept that he was arrested on the Jaffna Peninsula in mid-1993. Nor did the Tribunal accept that the applicant was arrested and detained or tortured as claimed.

14. As to the claimed fear of persecution the Tribunal considered independent information to the effect that Tamils with identify cards showing Colombo as a place of birth and residence "have few problems" Since it was not accepted that the applicant's brother was in the LTTE there was said to be no real chance of him being persecuted for imputed support for the LTTE. In relation to the claim on the basis of his situation as a failed asylum seeker the Tribunal found on the basis of independent country information that the applicant could return to Sri Lanka like any other traveller and there would be nothing to identify him as a failed asylum seeker. It did not accept that there was a real chance that he would be singled out for that reason on that basis. In relation to the claim that he could face persecution because he has scars related to torture, the Tribunal did not accept that he was tortured as described. While Professor McGorry had detected multiple marks on the applicant's body the doctor who had examined in him in connection with his application for a student visa had detected no significant abnormalities. The Tribunal did not accept that such scars as he had would be picked up on a cursory inspection. The Tribunal did not therefore accept there was a real chance he would be persecuted if he returned to Sri Lanka by reason of any scars he may have, whatever their cause.

15. On the basis of this assessment the Tribunal found there was no real chance the applicant would be persecuted by reason of race or political opinion if he returned home to Columbo in Sri Lanka now, or in the reasonably foreseeable future.

The Contentions.

16. The applicant contended that he had confronted the issues canvassed by the Tribunal on many previous occasions. He reiterated that the documents included with his student visa application, such as the identity card, were obtained illegally. He asserted that his claims in the protection visa application and before the Tribunal were in fact true.

17. Counsel for the Minister outlined the claims and conclusions of the Tribunal and submitted that there was no basis for review. It was suggested that in light of the careful approach by the Tribunal, not only to fact finding, but also to the opportunity given to the applicant and his advisers to address the Tribunal concerns, it could not be said that the Tribunal did not make an honest attempt to exercise its authority. In written submissions the respondent submitted that the case was one in which the Tribunal rejected the applicant's factual claims, that it did so for reasons it explained carefully based on the material before it, and that there was no error of any legal kind in the Tribunal's approach to those issues of fact. It was also submitted that there was no question of any inviolable limitation on the power of the Tribunal in the Migration Act being breached.

The Applicable Law

18. The Tribunal's decision is a privative clause decision within the meaning of section 474(2) of the Migration Act and is subject to the limitations on judicial review in section 474(1). The proper construction of section 474 has been the subject of detailed consideration by the Full Court of the Federal Court in NAAV v The Minister [2002] FCA 228.

19. The members of the Court were in broad agreement that section 474(1) was properly construed as having the same effect as other such clauses considered in many decisions of the High Court. In particular, in R v Hickman; Ex parte Fox v Clinton (1945) 70 CLR 498 Dixon J identified three conditions which, if met, would ordinarily mean that a decision which was the subject of a privative clause would be valid. These are:

i) that the decision is a bona fide attempt to exercise the power conferred on the decision-maker;

ii) that the decision relates to the subject matter of the legislation; and

iii) that the decision is reasonably capable of reference to the power conferred on the decision-maker.

20. There was broad agreement in NAAV that as a matter of construction the broad statement of legislative intention in section 474 may be displaced by a provision which makes clear Parliament's intention that the observance of some procedure, or the proper consideration of some issue is a pre-condition for a valid decision.

21. In addition to the brief claims that the applicant made, I have considered whether the Tribunal reasons and the other material reveal any reviewable error. The applicant claimed that the account that he had given in connection with his application for a protection visa was true. However the claims in this regard amount to an attempt to seek merits review of the Tribunal's decision. Such merits review is not available in this court.

22. The applicant also mentioned his concerns about the Tribunal conclusions in relation to the inconsistencies in his claims, in particular the comparison of his claims in and the material provided in connection with his application for a student visa and the different claims in connection with his application for a protection visa as well as some claimed inconsistencies in relation to accounts given at various times in connection with his protection visa application and review of that application.

23. The Tribunal's decision is based largely on its assessment of the applicant's credibility. Such an assessment is essentially a matter for the Tribunal. I refer to Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 467 in that regard. The Tribunal's concerns in relation to inconsistencies were put to the applicant. They were put in the hearing and also by way of a detailed section 424A letter. Both the applicant and his solicitor had the opportunity and did provide comment for consideration by the Tribunal. The Tribunal gave detailed reasons for rejecting the credibility of the applicant's claims. Its reasons do not demonstrate an erroneous process of reasoning or bias on the part of the Tribunal or a lack of good faith. The applicant provided explanations for some of the inconsistencies, however whether such explanations are accepted by the Tribunal in any particular case depends on the entirety of the material before the Tribunal and the particular circumstances of the case. The Tribunal had regard to material submitted by the applicant and to other material in support of the applicant's claims as well as material to the contrary. It sought, considered, and rejected the applicant's explanation for the inconsistencies. It has not been established that it failed to take into account any relevant considerations. Had it done so then such an error would be an error that it now has jurisdiction to make in accordance with the decision of the Full Court in NAAV.

24. I have considered whether the material before the court indicates an absence of a bona fide attempt by the Tribunal to exercise its power. I note that as was pointed out by Kiefel J in NADR v MIMIA [2002] FCAFC 293 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". The Tribunal's detailed consideration of the applicant's claim, the manner in which the applicant was given an opportunity to comment and the detailed consideration of those comments do not indicate a lack of an honest or genuine attempt by the Tribunal. As von Doussa J said in SCAA v MIMIA [2002] FCA 668 it would be a rare and exceptional case where actual bias could be demonstrated solely from the published reasons for decision.

25. There is nothing in the material before the court in this case from which bias or lack of good faith on the part of the Tribunal could be inferred. The evidence does not establish a lack of a bona fide attempt by the Tribunal nor is there anything to suggest the decision of the Tribunal did not relate to the subject matter of the legislation or that it was not reasonably capable of reference to the power given to the decision maker. It has not been claimed nor is it apparent that the decision contravened an inviolable limitation.

26. It follows that the applicant's claim for relief pursuant to section 39B of the Judiciary Act must be dismissed. I therefore dismiss the application and direct that the applicant pay the respondent's costs. I will hear submissions in relation to the quantification of those costs.

27. I have heard the submissions in relation to costs. There were two hearings in this case but the issues raised were not of particular complexity in the sense that the applicant did not file any submissions to be addressed by the respondent. The initial adjournment was sought to enable the applicant to obtain the result of his application for review of the decision to refuse him legal aid.

28. However, I also recognise that additional work has been required on the part of the respondent because of the two hearings. Taking into account the amount of costs normally awarded in cases of this ilk, I intend to fix the costs under Rule 21.02. On balance I consider an appropriate amount for such costs is $5000. I order that the applicant pay the respondent's costs fixed in the amount of $5000 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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