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MIGRATION - privative clause decision - citizen of Bangladesh - appeal against refusal of application for protection visa - whether primary judge erred in upholding the Refugee Review Tribunal's findings as to the appellant's credibility - Hickman conditions

NACV v Minister for Immigration & Multicultural & Indigenous Affairs [2002]

NACV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 250 (16 August 2002)
Last Updated: 21 August 2002


FEDERAL COURT OF AUSTRALIA
NACV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 250


MIGRATION - privative clause decision - citizen of Bangladesh - appeal against refusal of application for protection visa - whether primary judge erred in upholding the Refugee Review Tribunal's findings as to the appellant's credibility - Hickman conditions

Migration Act (1958), s 474(2), (4) and (5)

R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598, followed

APPLICANT NACV of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

No N 299 of 2002

SPENDER, MOORE, KIEFEL JJ

SYDNEY

16 AUGUST 2002

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 299 OF 2002



ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
APPLICANT NACV OF 2002

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
SPENDER, MOORE, KIEFEL JJ


DATE OF ORDER:
16 AUGUST 2002


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal, to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 299 OF 2002



ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
APPLICANT NACV OF 2002

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
SPENDER, MOORE, KIEFEL JJ


DATE:
16 AUGUST 2002


PLACE:
SYDNEY





REASONS FOR JUDGMENT
THE COURT:

1 This is an appeal from a judgment of Conti J, recorded as NACV v MIMA [2002] FCA 411, who dismissed an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") refusing the appellant a protection visa. The appellant did not appear at the hearing before the primary judge, who nevertheless gave substantive reasons for his finding that the appeal should be dismissed, concluding that no reviewable error was shown to have been committed by the Tribunal.

2 The appellant is a citizen of Bangladesh. He applied for a protection visa on 18 August 2000. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused this application on 13 November 2000. The appellant applied to the Tribunal for review of this decision on 8 December 2000 and the Tribunal held a hearing on 15 November 2001. The Tribunal handed down its decision on 30 January 2002.

3 The Tribunal found that the appellant was not a credible witness. As to his claims of political persecution, the Tribunal said that it found the evidence advanced by the appellant in support of that claim "vague, confused and inconsistent with the independent evidence" which it ultimately referred to in its decision.

4 In respect of the appellant's claim to the Tribunal, made just before the hearing, that he would be persecuted on account of his homosexuality, the Tribunal characterised that claim as "unconvincing" and as appearing "contrived".

5 The primary judge said:

"It is readily apparent that the Applicant was unsuccessful because of the view the Tribunal took of the facts and circumstances which he had put forward, and of his credibility."

His Honour correctly noted that so long as credibility findings are open on the evidence before the Tribunal, there is no reviewable error committed by the Tribunal. His Honour said, again correctly, that the decision of the Tribunal was in the nature of a privative clause decision as defined by subsection 474(2) of the Migration Act 1958 (Cth) ("the Act&quo;
t;). His Honour noted that the decision was not a decision excluded by subsections (4) and (5) of section 474 of the Act, and said:

"In those circumstances this court has held that unless it can be shown by an Applicant that a Tribunal decision was not made in bona fide exercise of its powers under the Act, or else that the decision did not relate to the subject matter of the Act, or else that the decision is not reasonably capable of reference to the power given to the decision maker, then in accordance with the Act, the decision of the Tribunal has been rendered by the legislature to be final and conclusive."


6 His Honour's judgment concluded by saying:

"In my opinion the Applicant has not established a case within any one of the long established three principles [established in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598] restated in the authorities of this court ..."

His Honour therefore dismissed the application and ordered the appellant to pay the respondent's costs.

7 The notice of appeal to the Full Court of the Federal Court essentially seeks to cavil at findings made by the Tribunal. The only grounds which refer to the primary judge are the first two grounds of that notice of appeal, which provide as follows:

"1. The Single judge of the Federal Court in his Honors [sic] Judgment delivered on the 3rd April 2002 failed to find error of law and relief under Section 39 B of the Judiciary Act 1903.

2. His Honor [sic] failed to find that the Refugee Review Tribunal has not attended any evidence in relation to the applicant's claims and thus its decision is influenced by sufficient doubts. The applicant provided a suitable vehicle and most of the grounds relied upon facts and documents, which the Tribunal did not consider. The RRT heavily depended in their handling of the issues based on the generalised facts and findings of DIMA."

8 Neither of those grounds challenges the conclusion of the primary judge about the application of the privative clause to the decision of the Tribunal in the present matter. The short oral submissions made by the appellant to the Court again raise no ground to impugn the finding by the primary judge that the only available bases of challenge to the decision of the Tribunal in this case were not made out.

9 In the absence of a successful challenge to the finding that the Hickman conditions were satisfied, the appeal must be dismissed with costs. The order of the Court is that the appeal is dismissed, and the appellant is to pay the respondent's costs of the appeal, to be taxed if not agreed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Moore and Kiefel.




Associate:

Dated: 20 August 2002

The appellant appeared on his own behalf






Counsel for the Respondent:
Mr T. Reilly






Solicitor for the Respondent:
Sparke Helmore Solicitors






Date of Hearing:
16 August 2002






Date of Judgment:
16 August 2002


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