NBIY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 106 (23 February 2005)

Last Updated: 14 March 2005

FEDERAL COURT OF AUSTRALIA

NBIY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 106

NBIY V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1324 OF 2004





MADGWICK J
23 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1324 OF 2004

BETWEEN:	NBIY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	23 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent’s costs assessed in the sum of $7,000.

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 1324 OF 2004

BETWEEN:	NBIY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	23 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MADGWICK J:

1 This is an application which, in substance, as I understand it, seeks judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) concluded on 28 January 2004, which was adverse to the applicant.

2 The applicant is a Pakistani national who came to Australia on 21 July 1999 after previous journeys here as a seaman. When he came here on a student visa, he enrolled in a course of marine navigation at a TAFE college. Thereafter, he enrolled in a computer skills course and then in an hospitality course apparently with the aim of applying to remain in Australia on the grounds of his skills as a chef. Unfortunately for him, the college he was attending closed and his student visa was cancelled. He applied for a protection visa claiming refugee status on 22 October 2002. He claimed to fear persecution in Pakistan for reasons of his political opinion and because of his close association ‘as a personal aide or bodyguard’ with former Pakistani Prime Minister Nawaz Sharif.

3 It was not until 9 September 2004 that the applicant filed his application for judicial review in this Court. Unless the purported decision of the Tribunal can be regarded, on account of jurisdictional error, as amounting to no decision in law at all, the applicant is precluded by s 474 of the Migration Act 1958 (Cth) from coming to this Court.

4 The Tribunal, for reasons given, appears to have been disinclined to accept that the former Prime Minister ‘would have required someone like the applicant, a seaman in the Merchant Navy, to act as his personal aide or bodyguard when he visited the North-West Frontier Province’. The Tribunal member indicated, however, that even if that claim were to be accepted, the member would not accept that the applicant has a well-founded fear of being persecuted by reason of any such association with Mr Sharif if the applicant should return to Pakistan now in the reasonably foreseeable future. The Tribunal member’s research, the effect of which she put to the applicant, was to the effect that nobody is now being persecuted by reason of any association with Mr Sharif or his political party or faction.

5 The Tribunal member also relied on the applicant’s delay in lodging an application for a protection visa as going to ‘the genuineness’, or at least the depth, of the applicant’s claimed fear of persecution and, having rejected the veracity of certain documentary material, the Tribunal member continued:

‘In any event there is nothing in the independent evidence available to me to suggest that people would bear a grudge against a person like the applicant who played a minor role in supporting the then Prime Minister of Pakistan.’

6 Accordingly, the decision of the delegate was affirmed.

7 The application to the Court gives no grounds. It refers to an accompanying affidavit which never arrived. Two sets of written submissions were filed in Court; one on 24 December 2004 and one on 27 January 2005. The first claimed that:

‘... during the hearing the learned member advised me to leave Australia and go to a country like South Africa or Asian country and [join] the ship and work there. This [advice] speak the mind of the learned member of [the Tribunal] and raises the concern about the judgment. It seemed the learned member of [the Tribunal] was already inclined towards not to grant the refugee status either consciously or unconsciously during the hearing.’

8 That amounted to a claim of actual or ostensible bias but there was insufficient material before me to make out this claim, one which is not easily made out.

9 The document further complained that the Tribunal member had disadvantaged him by giving advice that he would not qualify to make an application for skilled migration on the basis of his qualification as a chef and that the law had since changed, meaning that he had lost a chance of staying here that might otherwise have been his.

10 Although it really had nothing to do much with the question of review of the decision, I was concerned to know whether, inadvertently, I would assume, the Tribunal member might have disadvantaged the applicant and asked the respondent to investigate this matter, which has been done. Mr Potts for the Minister has traced the applicable law and it appears that, from what is known of the applicant’s case, his apprehension that he has been disadvantaged by allegedly acting on the Tribunal member’s advice is quite incorrect. I may say that the necessary complexity of the submissions tracing the law would rival those to be expected in a tax case. Thus, there is no basis for me to make any recommendation to the Minister to consider the matter under s 417 of the Act.

11 I am otherwise unable to see any error of law, let alone any error of jurisdiction, on the part of the Tribunal member so far as those submissions are concerned.

12 The second set of submissions does not raise any new issues. They do, however, record gratuitously that a solicitor to whom the applicant was referred under the then operative pilot scheme for legal aid to assess the merits of applications to the Court told the applicant, having read his file, that he should withdraw the application from the Court or he could end up paying ‘the Court fee of about $5,000’. So far as I can see, the solicitor was right.

13 The application will be dismissed with costs.

14 I assess costs in the sum of $7,000.

ADDENDUM

15 Since delivering judgment, it has come to my attention that the applicant filed an affidavit which stated, among other things, the following:

‘The [Tribunal] failed to take into consideration the merits of the case.

The [Tribunal] failed to act on proper principles of fairness and natural justice.

The [Tribunal] did not act in good faith to make this decision.

...

The decision made by the [Tribunal] was an improper exercise of the powers conferred by the Migration Act 1958 and Migration Regulations 1994 as amended.

The decision involved an error of law being an incorrect interpretation of the applicable laws and incorrect application of the law to the facts.’

16 Without more, such bare assertions do not alter my previously expressed view.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 14 March 2005

Solicitor for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr J A C Potts
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	23 February 2005
Date of Judgment:	23 February 2005