K v Minister for Immigration & Multicultural Affairs [1999] FCA 869 (23 June 1999)

Last Updated: 2 August 1999

FEDERAL COURT OF AUSTRALIA

K v Minister for Immigration & Multicultural Affairs [1999] FCA 869

K v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

N 163 of 1999

HILL J

23 JUNE 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 163 OF 1999

BETWEEN:	K Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	HILL J
DATE OF ORDER:	23 JUNE 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. In respect of any proceedings in this matter as from today, the name of the applicant be kept confidential and not published other than to the parties, their legal advisers or officers of the Department of Immigration and Multicultural Affairs and the Refugee Review Tribunal.

2. Henceforth this matter proceed under the name K v Minister for Immigration and Multicultural Affairs.

3. The application be dismissed.

4. The applicant pay the respondent's costs.

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 163 OF 1999

BETWEEN:	K Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	HILL J
DATE:	23 JUNE 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1 The applicant is a citizen of the People's Republic of China. He arrived in Australia as a visitor in July 1996 and applied for a protection visa on 1 August 1996. His application was refused and he requested that it be referred to the Refugee Review Tribunal ("the Tribunal"). The issue, as it arose in the Tribunal, was whether the Tribunal sitting in the shoes of the Minister was satisfied that the applicant was a person to whom Australia had protection obligations under the 1951 United Nations Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention").

2 Article 1A(2) of the Convention defines a refugee (that being the criterion for protection obligations) relevantly as a person who:

"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; ..."

3 The Tribunal affirmed the decision made originally by the Minister or his delegate not to grant a protection visa. It did so because it did not believe the applicant's story. It found him to be not an impressive witness. It reached its conclusion because of inconsistencies between what he had said in his original application and what he said before the Tribunal. Those inconsistencies are set out in some detail in the Tribunal's reasons. I need not recount them here. As the Tribunal said, dealing with one of these inconsistencies:

"Both accounts clearly cannot be true, yet the Applicant was unable to provide any explanation for the obvious discrepancies."

4 These various inconsistencies were put to the applicant by the Tribunal, which had reached the conclusion that he could not be accepted as a witness of truth. At some point in the proceedings, the applicant asked the Tribunal if he could go home, think over what had happened and give supplementary information in writing. The Tribunal notes that the applicant was asked whether he needed more time to think about his account of the incident. The Tribunal noted also that the applicant had said that he was muddle headed. There seems little doubt that he was confused.

5 Perhaps not surprisingly, the Tribunal by then had reached the conclusion that he had not been telling the truth. The Tribunal notes in its reasons that if it received evidence in writing from him, it would not know whether the words used were his or someone else's. It was for that reason that the Tribunal rejected the adjournment application.

6 The applicant sought judicial review of the Tribunal's decision. On the first return day he did not appear. I stood the matter over for a week and on the next occasion he did.

7 At the time, I ensured he was given a pamphlet concerning Legal Aid. He says that a friend had endeavoured to contact a number on that sheet, but that he was refused. The application to this Court says that the grounds of the application are that the applicant fears persecution in the People's Republic of China and that he would be arrested and detained if he returned. The applicant is not, of course, a lawyer. He appears before me this morning unrepresented, save that he has the assistance of an interpreter.

8 It is not surprising that he does not appreciate fully, or perhaps at all, the very limited grounds of judicial review set out in s 476 of the Migration Act 1958 ("the Act"). The High Court, by majority, has held in Abebe v the Commonwealth of Australia [1999] HCA 14 that it is constitutionally possible to confer a very limited power of judicial review on this Court precluding it from determining matters such as whether natural justice was given, whether the decision was unreasonable in a legal sense or, for that matter, even whether the Tribunal took into account some irrelevant matter. Given the exclusions from jurisdiction which are to be found in s 476 of the Act, it may be even inaccurate to say that to succeed an applicant must show a legal error. But it suffices for present purposes to say that unless an applicant can show some form of legal error, this Court has no jurisdiction.

9 The applicant has effectively asked this Court to exercise mercy. He says, and I have no reason not to believe him, that he will be in danger if returned to China. He believes that this Court could in some way administer justice to him. However, it can be said that Parliament had a different view. Unless he is able to make out one of the very limited grounds in s 476, this Court cannot help him no matter how repugnant that may be to me or others and no matter how unjust that may appear to be.

10 I have carefully read the Tribunal's reasons. It is difficult to see any legal error in them. The Tribunal's decision was wholly arrived at because it did not believe the applicant. Having regard to the various discrepancies, it was clearly open for the Tribunal not to believe him.

11 Although the applicant did not directly ask me to adjourn the proceedings today, this was implicit in his discussion of the Legal Aid process. Were I of the view that there was even a chance of finding some legal error in the Tribunal's reasons, I may have been inclined to adjourn to enable him to pursue, even now, some attempts for legal representation. However, he has had some weeks to endeavour to do so and made only one albeit unsuccessful attempt. He does not appear to have perhaps understood the seriousness of the situation, but whether he has or has not, the present is a case which one would have to say is virtually hopeless as a matter of law. Further time will not help him where the only real issue is that he was not believed, and in circumstances where clearly his accounts were inconsistent. In the circumstances there is nothing else I can do but to dismiss the application.

12 I will direct that, in respect of any proceedings in this matter as from today, that the name of the applicant be kept confidential and not published other than to the parties, their legal advisers or officers of the Department to the Minister, and that henceforth this matter proceed under the name, K v Minister for Immigration and Multicultural Affairs.

13 I order the applicant to pay the respondent's costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated: 23 June 1999

The Applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 June 1999
Date of Judgment:	23 June 1999