NABO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 363 (8 November 2002)

Last Updated: 9 December 2002

FEDERAL COURT OF AUSTRALIA

NABO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCAFC 363

NABO OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N514 OF 2002

MADGWICK, EMMETT & CONTI JJ

8 NOVEMBER 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N514 of 2002

BETWEEN:	NABO OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK, EMMETT AND CONTI JJ
DATE:	8 NOVEMBER 2002 (corrigendum 3 December 2002)
PLACE:	SYDNEY

CORRIGENDUM

On the Orders page of the Reasons for Judgment the Orders are to be amended as follows:

Order 2 is to be amended by inserting a full stop at the end of the first line after the words "address for service" and creating a new Order 3 commencing thereafter as follows:

"3.  Within 14 days of the dispatch of such transcript to him, the applicant may file and serve any application that he wishes to re-open the matter."

Original Order 3 will now be renumbered Order 4 and is to be amended by deleting on the fourth line the word "indeed".

Original Order 4 will now be renumbered Order 5 and is to be amended as follows: on the first line, the words "will be dismissed" should now read "is dismissed" and on the second line the words "should pay the costs of the respondent" should now read "is to pay the costs of the respondent."

Original Order 5 will now be renumbered Order 6.

Associate:

Dated: 3 December 2002

FEDERAL COURT OF AUSTRALIA

NABO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCAFC 363

NABO OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N514 OF 2002

MADGWICK, EMMETT & CONTI JJ

8 NOVEMBER 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N514 of 2002

BETWEEN:	NABO OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK, EMMETT AND CONTI JJ
DATE OF ORDER:	8 NOVEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The transcript of today's proceedings be urgently obtained.

2. The transcript, when available, be forwarded to the applicant at his address for service and that within 14 days of the dispatch of such transcript to him, the applicant may file and serve any application that he wishes to re-open the matter.

3. Leave is given to the applicant to make any such application and file and serve in writing (in English) any submissions that he might wish to make in support of the following contentions, firstly that the prima facie approach enunciated by the Court is wrong and secondly that the applicant has indeed some arguable prospect of success in an application to the Court for judicial review of the proceedings before the Refugee Review Tribunal.

4. On that basis, the application for leave to appeal will be dismissed and, subject to any further submissions as indicated, the applicant should pay the costs of the respondent.

5. To put the matter beyond doubt, the orders of the Court shall not be taken out until after the expiry of the times indicated nor without reference to Madgwick J as the presiding judge.

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	N514 of 2002

BETWEEN:	NABO OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK, EMMETT AND CONTI JJ
DATE:	8 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(revised from transcript)

MADGWICK J:

1 On 21 May 2002 the learned primary judge upheld an objection to the competency of the proceedings before him. Those proceedings were initiated by a document in a form appropriate to an application to review a decision of the Refugee Review Tribunal ("the Tribunal") before the amendments to the Migration Act 1958 (Cth) ("the Act") made in 2001. The Tribunal had made a decision unfavourable to the present applicant on 29 November 2001 by which it affirmed a decision of a delegate of the respondent Minister refusing to grant the applicant a protection visa.

2 Counsel for the Minister now accepts that, in the light of the decision of the Full Court in NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294, by mischance the learned primary judge was misled into error and that the application, although in a very inappropriate form, was competent. The Minister properly takes the view that the Court should now treat the primary judge's decision as an interlocutory one which, of course, it was, and treat the applicant's very inappropriate notice of appeal, also cast in terms that might possibly have been appropriate under the Act as it existed before the 2001 amendments, as an application for leave to appeal. It is submitted that the Court should consider whether leave should be granted upon the basis that the only question was whether there would be any reasonable prospect of success for the applicant if he were granted leave to appeal.

3 The applicant comes from Georgia. He claims not to speak sufficient English or sufficient Russian to make himself properly understood to the Court or properly to understand the proceedings, including what members of the bench have had to say and no doubt what I am now saying. There is apparently a shortage of Georgian interpreters in Sydney and, in accordance with the Court's usual, helpful practice of securing the services of interpreters where this is possible, the officers of the Court sought to obtain the services of a Georgian interpreter for the hearing of the appeal. However, inquiries revealed that there were no registered Georgian interpreters available in Sydney.

4 Accordingly, the applicant was advised by the Court, by letter of 12 September 2002, which he acknowledges receiving, that arrangements would be made for a Russian interpreter to attend the hearing. A Russian interpreter has attended the hearing (and I may say has been extremely helpful to the Court in trying to cope with the situation). The applicant says that he wrote to the Court, saying he would not be able to cope with a Russian interpreter and, because the Court had itself undertaken the job of finding an interpreter, he believed it was the responsibility of the Court to find a suitable interpreter for him. The learned primary judge was of the view when he was faced with a similar situation that "the applicant understood sufficiently the proceedings would be with the assistance of a Russian interpreter". We have tried to make some close inquiry about this matter but we are not so satisfied.

5 We therefore explained to the applicant as best we could that, having examined the material in the appeal book, which is all that he apparently wishes us to consider by way of challenging the Tribunal's decision, and having regard to the terms of s 474 of the Act and its validity and interpretation as authoritatively decided, so far as we are concerned, there is no reasonable prospect of success in any appeal by him to this Court from the decision of the Tribunal.

6 The background is that the applicant arrived in Australia in November 1998 and, within a few weeks, lodged an application for a protection (class AZ) visa with the Minister's department. There was a curious history as to the initial advancement of the claim by the applicant's agent, but the claim as ultimately presented seemed to involve the following, which is taken from a detailed statement apparently made in Georgian by the applicant, then

translated into Russian and subsequently translated into English. I quote parts of that English translation.

"I fled Georgia because I feared I would be arrested by [President] Shevanardaze's dictatorial authorities. The absolute unlawfulness reigns my country and the liberties of speech and the press have been destroyed. Political opponents of the existing regime are arrested and killed on a mass scale.

I have been always been against any dictatorship, whatever form or shape it would take. I have always been a person who was not indifferent to the future of my long-suffering country. After seeing the unlawfulness perpetrated by former communist Shevanardaze (who remains to be one in his soul) who usurped the power taken away by him illegally from President Zviad Gamsakhurdia who had been lawfully elected by the people, I tried, as much as I could, to make some contribution to the cause of freeing Georgia from the Communist slavery. On one occasion, while taking part in a demonstration organised by Zviad Gamsakhurdia's supporters, I was arrested and bashed savagely. That nightmare continued for a week and a half. I was bashed two to three times a day, deprived of food, and subjected to psychological pressure. They were trying to make me reveal where the opposition party reporters were hiding. However, they failed to achieve anything and released me. Since then I was included on their black list.

A fews days after that I was sacked from my factory where I had worked for 12 years. Every place I applied for a job, I would get a rejection. I had to make a living through sporadic earnings. Nevertheless, I did not surrender. I actively participated in various pickets and demonstrations against the current regime. In October 1998, the threat of my second arrest became a reality. It was pure coincidence I was out when they came to arrest me at my place.

Many people told me about the attitude towards political prisoners in jail. They were bashed frequently and tortured, and many of them were murdered. Practically none of them would come out of jail alive. Fearing for my life, I could not go back home. My sister told me that almost every day they would come home or ring, and that Special Service agents threatened all the time.

By chance I found out about a travel agency that helped people to obtain Australian visas. I could no longer live in constant fear and went to the travel agency.

I ask the Australian Government to consider my case with understanding and allow me to stay in your country."

7 Faced with this broad statement the Tribunal Member caused a letter to be written to the applicant pursuant to s 424 of the Act inviting him to provide further specific information, including whether he had ever belonged to any political party in Georgia and the details of any such party and his activities in it; the date when he was arrested and the details of the circumstances; and the date in 1998 when the police came to arrest him and certified copies of all pages of his passport. Neither the applicant nor his agent responded to that invitation.

8 The Tribunal member then approached the situation in the following way.

"Although the Tribunal is not compelled to provide to proceed to a decision without offering an applicant a hearing in all cases where an applicant is invited under s 424 to give additional information and does not do so before the time for giving it has passed, the Tribunal considers that such a course of action is appropriate in this case. The applicant has provided only vague claims as he and his migration agent have failed to respond to a request that he provide supporting details. This suggests to the Tribunal that an invitation to a hearing would, in all likelihood, prove fruitless. Moreover, the applicant has apparently left the residential address to which any such invitation would be sent. The matter has therefore been decided on the basis of the information before the Tribunal. The matter has therefore been decided on the basis of the information before the Tribunal."

The Tribunal member concluded:

"Without further information, the Tribunal is not satisfied that the applicant has been involved in political activities in Georgia and is not satisfied that he has been arrested, detained and mistreated in any way. It follows from this that the Tribunal cannot be satisfied that he has had any experiences in Georgia which would give rise to a well-founded fear of persecution for a Convention reason."

9 Such an approach by the Tribunal, both procedurally and as a matter of substance, seems to me to reveal no error of law whatsoever.

10 I have examined the other material in the appeal book and considered whether there was any material to which the Tribunal Member perhaps did not adequately turn attention and I find none. In short, and subject to the applicant having an opportunity to make submissions to the contrary, the Court has indicated to him there is no prospect whatsoever of any appeal to the Court succeeding even if one might regard s 474 and the law concerning it to be in a state of development. By no stretch of the imagination does this case appear to suggest that the decision of the Tribunal is judicially reviewable.

11 The orders that I would therefore propose are as follows:

(i) The Court instruct the associate assisting it to order the transcript of today's proceedings urgently.

(ii) That transcript when available be forwarded to the applicant at his address for service and that within 14 days of the dispatch of such transcript to him the applicant file and serve any application that he may wish to re-open the matter;

(iii) Leave is given to the applicant to make any such application and file at the same time and serve in writing in English any submissions that he might wish to make in support of contentions, firstly that the prima facie approach of the Court which I am now enunciating is wrong and secondly that he has indeed some arguable prospect of success in an application to the Court for judicial review of the proceedings before the Tribunal.

(iv) On that basis, the application for leave to appeal will be dismissed and, subject to any such further submissions as indicated the applicant, should pay the costs of the proceedings;

(v) To put the matter beyond doubt, the orders of the Court should not be taken out until after the expiry of the times indicated nor without reference to me as the presiding judge.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 18 November 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N514 of 2002

BETWEEN:	NABO OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK, EMMETT AND CONTI JJ
DATE:	8 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(revised from transcript)

EMMETT J:

12 I agree that the appeal should be dismissed insofar as leave is not required. Insofar as leave is required, leave should be refused. The decision of the Tribunal is clearly a privative clause decision within the meaning of s 474(2) of the Migration Act. Accordingly under s 474(1) it is not subject to being impugned in this Court unless the Court is satisfied that the Tribunal did not make a bona fide attempt to exercise its power or the decision did not relate to the subject matter of the Migration Act or could not reasonably be capable of reference to the power given to the Tribunal under the Act.

13 There is no basis for suggesting that the Tribunal did not make a bona fide attempt to exercise its power and the decision clearly relates to the subject matter of the Migration Act and is clearly capable of reference to the power given to the Tribunal. For those reasons it is clear that, had the matter been dealt with by the primary judge as a competent application, it was doomed to dismissal.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 18 November 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N514 of 2002

BETWEEN:	NABO OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK, EMMETT AND CONTI JJ
DATE:	8 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(revised from transcript)

CONTI J:

14 I agree with the reasons for the decision of both the presiding judge and Emmett J. I agree with the course which is proposed by the presiding judge.

I certify that the preceding numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated: 18 November 2002

Appellant appeared in person.
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	8 November 2002
Date of Judgment:	8 November 2002