Applicant NALU of 2002 v Minister for Immigration and Multicultural and Indigenous Affaiirs [2003] FCAFC 31 (5 March 2003)

Last Updated: 17 March 2003

FEDERAL COURT OF AUSTRALIA

Applicant NALU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 31

MIGRATION - appeal - judicial review sought of primary judge's decision to uphold Refugee Review Tribunal's decision to affirm refusal of protection visa application - whether primary judge erred in not finding actual bias, jurisdictional error or breach of procedural fairness in the decision of the Refugee Review Tribunal.

Migration Act 1958 (Cth)

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228; (2002) 193 ALR 449, referred to

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24, applied

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, referred to

R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, referred to

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

N 992 of 2002

HILL, GOLDBERG & CONTI JJ

5 MARCH 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 992 of 2002

ON APPEAL FROM A SINGLE JUDGE OF

THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT NALU of 2002 Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGE:	HILL, GOLDBERG & CONTI JJ
DATE OF ORDER:	5 MARCH 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of and incidental to the appeal.

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 992 of 2002

ON APPEAL FROM A SINGLE JUDGE OF

THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT NALU of 2002 Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGE:	HILL, GOLDBERG & CONTI JJ
DATE:	5 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 The appellant appeals against an order of a judge of the Court made on 3 September 2002 in which the judge dismissed the appellant's application for an order of review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 23 May 2002. The Tribunal affirmed the decision of a delegate of the respondent ("the Minister") not to grant a protection visa to the appellant pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act") and the Migration Regulations 1994 (Cth).

2 The appellant, a citizen of India, arrived in Australia on 30 January 2000 on an Indian passport. On 29 February 2000 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. A delegate of the Minister refused the application for a protection visa on 28 March 2000 and on 11 April 2000 the appellant applied to the Tribunal to review the decision of the delegate. The Tribunal held a hearing on 23 April 2002.

3 The appellant claimed to be a Muslim who lived in Calcutta until he left India in January 2000. He claimed he was a practising Muslim and a member of the Muslim League and that he had been the subject of harassment because of his religion. He claimed in his application for a protection visa that his house had been raided twice by police in January 2000 and that there was increasing religious tension in India which was exacerbated for him because he was a member of the Muslim League. He claimed that his wife and daughter had accompanied him to Australia and were resident in Australia.

4 At the hearing before the Tribunal the appellant claimed he had political problems but he gave no specific details of such problems other than that he and his relatives belonged to the Muslim League, and that the BJP party was against the Muslims. When the Tribunal asked the appellant what specific problems he had experienced which he considered to be persecution, the appellant claimed that it was because of the business he ran, the fact that he was a member of the Muslim League and that he had been shot at two or three times but he could give no details of the shooting. He claimed that his house had been raided two months earlier in India, that his wife was there and that since that time he had been unable to talk to her. The appellant made a number of claims that had not been mentioned in his original protection visa application such as a claim that his cousin was killed in riots in 1994 and a claim that he had been shot at two or three times and had to escape.

5 The Tribunal noted that the appellant had not provided any specific details of his claims to have been persecuted because of his religious activities in India and found that his claims were so vague, generalised and generic that it was unable to establish the relevant facts. The Tribunal was unable to accept that the appellant's claims had any veracity.

6 The Tribunal was unable to accept that the appellant was involved in any religious or political activities such that he came to the attention of the Hindus, the BJP party or the police. Accordingly, the Tribunal was not satisfied that the appellant was the subject of persecution for his religion or his political activities in India and was not satisfied that he had a well-founded fear of persecution in India by reason of his religion or political opinion. Put shortly, the Tribunal rejected the appellant's claims to persecution as not being credible.

7 The primary judge noted that the Tribunal did not accept the veracity of the appellant's claims and was not satisfied that he was the subject of persecution for his religious or political activities in India. The primary judge applied the principles set out by the Full Court of the Federal Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228; (2002) 193 ALR 449 which was delivered nineteen days before the primary judge's decision was handed down.

8 The primary judge considered the appellant's submission that:

"[t]he Tribunal's ignoring of relevant evidence and its finding in the face of contradicting independent evidence which indicates actual bias constitute jurisdictional error being a breach of procedural fairness which is an essential condition of the exercise of the decision making power ..."

The primary judge noted that no particulars were given of the relevant evidence allegedly ignored or of the contradicting independent evidence. The primary judge also noted that the material before the Court provided no support for the assertion of actual bias. The primary judge found that the Tribunal gave consideration to the appellant's claim to have been subjected to persecution in India but did not accept the veracity of the claim and said that the credibility of the appellant was a matter for the Tribunal's determination.

9 The primary judge was satisfied that the material before the Court disclosed no basis for a conclusion that the decision of the Tribunal was not a bona fide attempt to exercise the power vested in the Tribunal, that the decision plainly related to the subject-matter of the Act and was referrable to the power given to the Tribunal, that is, that the decision could be said to have failed to satisfy the provisos laid down in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598. The primary judge was also satisfied that no inviolable procedure could be identified with which the Tribunal failed to comply. The primary judge made these findings consistently with the reasoning of the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (supra).

10 At the hearing before the primary judge the appellant tendered two documents which were received in evidence subject to the Minister's objection to their relevance. Neither of the documents had been before the Tribunal and the primary judge upheld the submission that they were not relevant to the proceeding. The primary judge was correct in so ruling as the documents were not before the Tribunal and, indeed, post-dated the Tribunal hearing. The appellant sought to tender similar documents on the appeal and we rejected the tender as the documents had not been before the Tribunal and accordingly were not relevant on the hearing of the appeal.

11 The appellant raised the following grounds in his notice of appeal:

"1. The Single judge of the Federal Court in [her] Honors Judgement delivered on the 03 September 2002 failed to find error of law, procedural fairness, Jurisdictional error and relief under Section 39 B of the Judiciary Act 1903.

2. [Her] honour failed to find that tribunal was acted in bad faith. Thus, RRT decision was affected by procedural fairness.

3. The applicant is a genuine refugee under the UN Convention and sub-class 866 of the Migration Act 1958, but that the authority has not considered applicant's claims and he has been refused to remain in Australia permanently. The RRT has failed to investigate the applicant's claims, specifically the grounds of persecution, in India. Therefore, the tribunal's decision was affected by procedural fairness, error of law and judicial error."

None of these grounds have been made out.

12 Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24, the issues and grounds of review before the primary judge must be considered having regard to the reasoning in that decision.

13 So far as the claim of jurisdictional error is concerned, such a ground must now be considered in the light of the reasoning of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (supra). The effect of the decision of the High Court is that s 474 of the Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excess of jurisdiction conferred by the Act, as such decisions are not "decisions made under ... [the] Act" for the purposes of s 474. Put shortly, s 474 does not apply to decisions which involve jurisdictional error. Whatever be the scope or extent of jurisdictional error: see, for example, Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 351, the primary judge did not identify any ground establishing any such jurisdictional error and we are satisfied that the Tribunal did not fall into any jurisdictional error. Indeed the appellant was unable, before us, to identify any such error.

14 We are satisfied that there was no material before the primary judge which warranted a finding or conclusion of actual bias, jurisdictional error or breach of procedural fairness.

15 The appeal will be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill, Goldberg & Conti JJ.

Associate:

Dated: 5 March 2003

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	5 March 2003
Date of Judgment:	5 March 2003