NADD of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 275 (28 August 2002)

Last Updated: 29 August 2002

FEDERAL COURT OF AUSTRALIA

NADD of 2001 v Minister for Immigration & Multicultural

& Indigenous Affairs [2002] FCAFC 275

NADD OF 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 394 OF 2002

NORTH, MANSFIELD & DOWNES JJ

28 AUGUST 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 394 OF 2002

BETWEEN:	APPLICANT NADD OF 2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	NORTH, MANSFIELD & DOWNES JJ
DATE OF ORDER:	28 AUGUST 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for extension of time within which to file and serve the notice of appeal is dismissed.

2. The applicant is to pay the respondent's costs of and incidental to the application.

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 394 OF 2002

BETWEEN:	APPLICANT NADD OF 2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	NORTH, MANSFIELD & DOWNES JJ
DATE:	28 AUGUST 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for an extension of time to appeal, an application to amend the grounds of appeal, and if the extension of time is granted, an appeal against a judgment of Conti J delivered on 5 April 2002. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal (Tribunal) handed down on 5 November 2001. In that decision, the Tribunal affirmed the decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, to refuse a protection visa to the applicant.

PROCEEDINGS BEFORE THE TRIBUNAL

2 The applicant is a citizen of India who arrived in Australia on 12 January 1999. The Tribunal summarised his claims at par 2 of its reasons, as follows:

"... the Applicant claims that at or about the end of 1993 a friend who was a member of the `Sikh Student Federation' was arrested by the police and was not seen again. Other young men who were friends of the Applicant were arrested and at the end of September 1996 the Applicant left India and went to live with a sister in Kenya. Subsequently he came to Australia. He claims he left India because he had suffered and fears persecution because of his Sikh ethnicity and because of his membership of a particular social group, namely young men especially targeted by the Indian police."

3 The Tribunal reached the following conclusions:

"52 ... the Applicant has made no claims and produced no evidence that he, personally, has suffered any harm, mistreatment, discrimination, oppression, or serious violations of human rights in India from any Indian authorities or because of his Sikh ethnicity. The Applicant was not, himself, a member of any political party. The evidence of the applicant was that he, himself, was not a member of the Sikh Student Federation. The Applicant has never been arrested and or questioned and detained by the police. He obtained his passport in his own name in 1995 without difficulty. He left India without difficulty. There is no evidence to suggest that the Applicant personally has ever been of interest to the authorities.

...

58 I accept the independent information that things have all but returned to normal in Punjab. ...

59 I conclude from the independent information, which I accept, that Sikhs in Punjab do not constitute a persecuted group at the present time, and even rank and file members of groups that were at one time targeted are, in general terms, now safe ... ."

4 The Tribunal also rejected the applicant's claim that he was persecuted by reason of his membership of a particular social group. The Tribunal found that the group proposed, namely, `the group of young men especially targeted by the police', was defined by reference to the persecution. Consequently, it did not qualify as a particular social group within the meaning of the Refugees Convention: Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225.

5 The Tribunal concluded that the applicant wished to stay in Australia in order to make a better life for himself, and not for any Convention related reason.

6 It is significant to the applicant's argument that the hearing before the Tribunal occurred on 27 November 2000, but the decision was not handed down for almost a year on 5 November 2001.

PROCEEDINGS BEFORE THE PRIMARY JUDGE

7 The applicant's argument before the primary judge was described by his Honour at par 5, as follows:

"The Applicant's solicitor has made submissions in support of the contention that there has occurred a breach of duty on the part of the Tribunal to afford the Applicant procedural fairness, by reason of the delay of nearly one year between the Tribunal hearing and the handing down of the Tribunal decision on 5 November 2001. That was said to be because the privative clause provisions came into operation on 2 October 2001, by virtue of Schedule 1, Clause 8(2) of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), with the consequence that the new subs 474(2) of the Migration Act 1958 (Cth) (`the Act') thereafter radically restricted the previously available grounds for review of the Tribunal decision once delivered. The Applicant claimed to have been prejudiced by the delay in the handing down of the decision of the Tribunal, insofar as the period of that delay has produced the consequence of subjecting him to the operation of the privative clause provisions of subs 474(2), to the exclusion of the grounds for review of Tribunal decisions provided by the former s 476 of the Act."

8 His Honour held that:

* there is no basis for imputing a duty on the Tribunal to hand down its decision before the amendments to the Migration Act 1958 (Cth) (the Act) came into effect on 2 October 2001;

* in any event, there was no prejudice to the applicant from the delay because the applicant had no basis for successfully attacking the decision of the Tribunal under the pre-existing judicial review regime contained in the Act; and

* there was no basis on which the applicant could successfully challenge the Tribunal's decision under the current judicial review provisions in Part 8 of the Act.

APPLICATION FOR EXTENSION OF TIME

9 On 3 May 2002, the applicant filed a notice of appeal against the judgment of the primary judge.

10 The judgment of the primary judge was delivered on 5 April 2002. Order 52 rule 15 of the Federal Court Rules provides that a notice of appeal must be filed within 21 days of the delivery of judgment. The notice of appeal was therefore filed out of time.

11 By an application filed on 3 May 2002, the applicant sought an extension of time within which to file and serve the notice of appeal. In support of the application he swore an affidavit which provided, in part, as follows:

"My right arm is imputed [amputated] and I am unable to work. I always need medical assistance and help for my day to day care. I am under medical treatment.

At present, I am totally depended [sic] on one of my friend [sic] who is providing food and accommodation.

My friend has their own family. It was not possible for me to organise money for solicitor or Barrister who can lodge appeal in the Federal Court."

THE ORIGINAL NOTICE OF APPEAL

12 The sole ground stated in the original notice of appeal filed on 3 May 2002 was:

"The Court erred in failing to hold that the decision of the Refugee Tribunal made on 5 November 2001 involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal (section 476(1)(c) of the Migration Act 1958."

APPLICATION TO AMEND THE NOTICE OF APPEAL

13 On 19 August 2002, the applicant filed a motion seeking leave to amend the notice of appeal by adding a second ground as follows:

"The Court erred in failing to identify an error of law on the face of the record, namely that the Respondent had failed to accord the Appellant procedural fairness.

PARTICULARS OF FAILURE TO ACCORD PROCEDURAL FAIRNESS

a. As at 19^th February 1999 Adam Warzel ("the Delegate") was a duly authorised delegate of the Respondent for the purpose of determining refugee applications;

b. On 19^th February 1999 the Delegate made a decision to refuse to grant the Appellant a Protection Visa ("the Decision");

c. The reasons for the Decision are documented in the Protection Visa Record Decision File Number V99/85 ("the Record");

d. Part B of the Record listed the sources in which could be found the evidence used by the Delegate in making the Decision;

e. At the time of the making of the Decision, the Part B documents were documents:-

(i) in the possession or control of the Respondent; and

(ii) considered by the Respondent to be relevant to the review of the Decision by the Refugee Review Tribunal ("the Tribunal");

f. Between 24^th March 1999 and 18^th October 2000 the Respondent despatched his departmental file concerning the matter to the Tribunal. The file did not include hard copies of DIMA Country Information Report: CX 32164 (7^th October 1998) which was one of the Part B documents or a copy in electronic form;

g. The Part B documents were each capable of being printed or copied from the source the Delegate used in his consideration of them in the making of the Decision and were each capable of being physically delivered to the Tribunal;

h. Member Northwood was constituted as the relevant member of the Tribunal for the purpose of determining the Appellant's Application;

i. A review of the papers was purportedly conducted by Member Northwood;

j. On 18^th October 2000 the Deputy Registrar of the Tribunal wrote to the Appellant in the following terms, inter alia:-

`The Tribunal has looked at all the materials relating to your application but is not prepared to make a favourable decision on this material alone. You are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments in support of your claims';

k. Thereafter the Tribunal proceeded under section 425 of the act and made a decision adverse to the Appellant;

l. The Appellant was misled and disadvantaged by what occurred."

14 In an affidavit in support of the application for leave to amend the notice of appeal, the solicitor for the applicant explained that the application arose as a result of the judgment of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30 (Muin) which was delivered on 8 August 2002. The amendment to the notice of appeal was said to plead the same denial of procedural fairness that the High Court upheld in Muin.

CONSIDERATION

15 In considering whether to grant an extension of time within which to file the original notice of appeal, and whether to grant leave to amend the notice of appeal, it is useful to commence by examining whether, if those applications were granted, the applicant would have a chance of succeeding in the appeal.

16 In the original notice of appeal, the applicant did not identify the error said to have been made by the primary judge. We agree with the primary judge that the applicant has not pointed to any error made by the Tribunal which would fall within any of the grounds of review under s 476 of the Act as it existed before the amendments came into effect on 2 October 2001. Thus, even if the Tribunal had a duty to deliver a decision before the amendments to the Act came into effect, no prejudice to the applicant as the result of the delay is demonstrated. Like the primary judge, we do not accept that there was a duty on the Tribunal as suggested. No argument was mounted to substantiate such a duty. The matter remained no more than an assertion by the applicant.

17 In the written submissions in these proceedings, the applicant sought to rely on his written submissions before the primary judge. Those submissions contended that the Tribunal had acted in excess of jurisdiction and, hence, the court was not prevented by the privative clause in s 474(1) of the Act, as amended, from reviewing the decision of the Tribunal. The contention that the Tribunal had acted in excess of jurisdiction was stated, relevantly, as follows:

"6. ... The RRT was bound to inquire into the reasons behind the making of the threats in order to determine the applicant's claim properly. The RRT was obliged to act as an `inquisitor' and thus it was bound to explore the applicant's claim that the applicant was confined to live in home because his very close friend and active worker of the Khalistan movement was arrested. ...

The migration agent who was acting for him never gave any hint to produce the evidence of the arrest of his friend Harjinder Singh. The reason for the arrest was simple that he was associated with the Khalistan movement.

...

7 The RRT was obliged, as a matter of procedural fairness, to advise or warn the applicant that it was considering to reject his claim on the ground that fear or threat to his life, he has received were motivated simply by the arrest of his associate friend Mr. Harjinder Singh. The failure to warn the applicant deprived his opportunity to amplify his evidence and identify more precisely the fear and threats that had been made against him."

18 In our view, the primary judge was correct to hold that no error of jurisdiction in these respects had been committed by the Tribunal.

19 The Tribunal addressed the claim that the applicant was confined to live at home because of his alleged connection with Mr Harjinder. The Tribunal rejected the claim. For instance, it said at par 53:

"Further, it is clear that following the arrest of Mr. Harjinder the Applicant remained in the Punjab and or India for a further period of three years. I cannot accept that if the Applicant genuinely feared that he faced persecution at the hands of the authorities because of his Sikh ethnicity that he would have stayed in India for such a period."

20 The Tribunal found against the applicant on this issue on the merits. There was no error of jurisdiction in so proceeding.

21 The applicant's written submissions before the primary judge then referred to an alleged failure on the part of the applicant's migration agent. If there was any failure by the migration agent, such failure does not establish an error made by the Tribunal.

22 Finally, the Tribunal was not obliged to tell the applicant that it intended to reject his claim. The applicant was obliged to put to the Tribunal all the material he wished in support of his application. In any event, there is no suggestion that there was other material available to the applicant which might have influenced the Tribunal to come to the opposite conclusion.

23 As to the additional ground of appeal raised in the proposed amended notice of appeal, the applicant contends that the particulars establish a denial of procedural fairness by the Tribunal. Such a denial, it is submitted, amounts to a jurisdictional error, which permits the Court to set aside the decision of the Tribunal notwithstanding the terms of the privative clause in s 474 of the Act.

24 The denial of procedural fairness found by the majority in Muin was explained by Hayne J at par 250 as follows:

"The parties have agreed that, in each of the present cases, the Secretary sent to the Registrar the departmental file relating to the plaintiff but did not send any of the Part B documents. Further, facts are agreed from which it would be open to infer, in each case, that, neither before the Tribunal conducted its review `on the papers', nor before it made its decision to affirm the decision refusing the grant of a protection visa, did it examine those Part B documents. In each case it is agreed that, if the plaintiff had known that the Tribunal had not considered all the Part B documents to which the delegate had referred, the plaintiff would have taken various steps to place the information in the Part B documents and submissions about its significance before the Tribunal."

25 Each of the elements constituting the denial of procedural fairness in that case was the subject of evidence, albeit by way of an agreed statement of facts.

26 In the present appeal, the argument concerning the denial of procedural fairness was not raised before the primary judge. No application has been made to the Full Court by the applicant to rely on further evidence on the appeal. Mr Levet, who appeared as counsel for the applicant, drew attention to the fact that the delegate's decision indicates that DIMA Country Information Report: CX32164 (7 October 1998) (CX32164) was part of the evidence before him, but the Tribunal decision does not record that this document was before it. However, there was no evidence before this Court of the full text of the CX32164. Further, there is no evidence that the applicant was misled into thinking that the Tribunal had not read the CX32164. And, there is no evidence that the applicant would have taken any different course had he been so misled. In these circumstances, it is impossible for the applicant to succeed in reliance on the Muin decision.

27 In oral submissions, Mr Levet argued that the absence of reference to CX32164 in the Tribunal decision demonstrated a breach of s 418(3) of the Act.

28 A number of assumptions need to be made to conclude from the absence of reference to the report in the Tribunal decision that there was a breach of s 418(3). The Tribunal's reference to the material before it does not expressly record either CX32164, or any other material provided by the Secretary concerning the conditions generally in India, including the treatment of persons such as the applicant. However, it records in some detail certain country information to which it had regard. The validity of the assumption in the submission that there was a breach of s 418(3) may be doubted in the face of that material. In any event, a breach of s 418(3) alone, without evidence of any further circumstances, does not amount to a jurisdictional error.

29 Finally, Mr Levet argued that the applicant had a legitimate expectation that all the material before the delegate would be before the Tribunal. Assuming for the purpose of argument that the denial of this expectation amounts to a breach of the requirements of natural justice, such a breach does not amount to jurisdictional error: NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228.

30 As the applicant could not succeed on any of the grounds raised in the original notice of appeal and the proposed amended notice of appeal, it is not appropriate to extend the time for filing the original notice of appeal. The applicant must pay the respondent's costs of the application.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 28 August 2002

Counsel for the Applicant:	Mr B Levet
Solicitor for the Applicant:	Bharati Solicitors
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	27 August 2002
Date of Judgment:	28 August 2002