NABC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 539 (30 April 2002)

Last Updated: 1 May 2002

FEDERAL COURT OF AUSTRALIA

NABC v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 539

MIGRATION - effect of privative clause

Migration Act 1958 (Cth) ss 425, 426, 474

Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397 followed

NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 followed

NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281 followed

NABM of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCA 335 followed

Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438 not followed

Kwan v Minister for Immigration & Multicultural Affairs [2002] FCA 498 not followed

Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 477 followed

APPLICANT NABC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 0040 OF 2002

GYLES J

SYDNEY

30 APRIL 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 0040 OF 2002

BETWEEN:	APPLICANT NABC APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	30 APRIL 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to pay the costs of the respondent.

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 0040 OF 2002

BETWEEN:	APPLICANT NABC APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	30 APRIL 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant, who is a citizen of Bangladesh, arrived in Australia on 21 April 1999. On 20 May 1999 he lodged an application for a protection (Class AZ) visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) ("the Act"). On 22 June 1999 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa, and on 20 July 1999 the applicant applied for review of that decision. On 19 December 2001 the Refugee Review Tribunal ("the Tribunal") affirmed the decision not to grant a protection visa.

2 On 15 January 2002 the applicant filed an application for an order of review which, after some detailed criticism of the Tribunal decision, apparently summarised the applicant's position as follows:

"Tribunal's decisions are not supported by the independent source of facts and evidence and thus I am seeking a review of the decision."

The applicant was (and is) unrepresented.

3 On 21 March 2002 the applicant filed written submissions, although they were apparently filed by what are called friends of the applicant as he did not speak English. I do not set them out. They are critical of the fact-finding of the Tribunal and annex various documents.

4 When the matter came on for hearing, the applicant was granted leave to file in Court and read an affidavit. This, again, is in English. He was apparently assisted in drafting it by a migration agent. Paragraphs 4 to 8 of that affidavit are as follows:

"4. I was one of the well-known political activists, belonged to the Bangladesh Nationalist Party (BNP) student wing Jatiotabadi Chatradal City unit General Secretary. A political false case filed against me by my political opponents to prevent me. This occurred from my political activities, I will be killed or be imprisonment upon my arrival to Bangladesh. I have real fear of persecution still in my previous country Bangladesh.

5. I was not deprived of justice by the tribunal member, as the member did not provide me an opportunity to establish my claim. Only because of Department of foreign affairs and tread reports. The report is not based on independent source of facts.

6. I signed my statutory Declaration at the office of my former Agent to be sent to the Tribunal along with my application to the Refugee Review Tribunal. My former agent did not send my statutory declaration before the tribunal in respect to my claim. The Tribunal received my application but did not receive my Statutory Declaration.

7. Furthermore, The Tribunal did not believe me without any reasonable cause. I submitted to the honorable Federal Court a High judgment in favor of my application that is the most relevant citation of my case. CHAN V MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS [1989] HCA 62; (1989) 169 CLR 379 FC 89/034.

8. I was not invited the Tribunal member to appear before the Tribunal in accordance with section 425 of the Migration Act 1958. I have a witness who will establish my claim orally but unfortunately my previous agent did not write his name in the witness box. I believe that if my witness gave the oral evidence before the Tribunal the presiding member hopefully be satisfied regarding my claim."

5 So far as par 8 of the affidavit is concerned, the applicant accepts that he, in fact, appeared before and gave evidence to the Tribunal. His complaint is in relation to the witness.

6 In my opinion, the proper approach to this case is that neatly summarised by Heerey J in Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397 at [46]:

"In my view, the correct approach is to first consider whether s 474 applies. If it does, the Court need not, indeed should not, go any further. The Court should not assess the case as if s 474 did not exist and then only move to consider that section if satisfied that otherwise grounds are made out. Section 474 in its terms goes to the Court's jurisdiction and is to be applied at the threshold."

That approach avoids deciding a false issue (with the consequent saving of time and court resources) and is consistent with my decision in NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 (15 March 2002) at [13]-[37], particularly [29], [30], [34], [35] and [36], and with the decision of Tamberlin J in NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281 (19 March 2002), particularly at [11]-[31]. In NABM of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCA 335 (26 March 2002), Beaumont J, in a considered decision, agreed with the construction as to the operation of s 474 favoured by Tamberlin J and myself ([42]-[68]).

7 However, on 11 April 2002 Wilcox J declined to follow NAAX and NABE (Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438 at [59]- [67]. His Honour did not refer to the decision of Beaumont J in NABM of 2001. Indeed, his Honour appears to have proceeded upon the footing that he was entitled to prefer his own opinion to that of the earlier reasoned decisions. A similar approach seems to have been taken by Finkelstein J in Kwan v Minister for Immigration & Multicultural Affairs [2002] FCA 498 (23 April 2002). Reference was not made by his Honour to NABE or NABM of 2001.

8 In the meantime, in Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 477 (17 April 2002), Hill J had considered the operation of s 474 and the decisions upon it to that time, and followed the views of Tamberlin J and myself rather than those of Wilcox J. A similar view was taken by Heerey J in Turcan ([38]-[45]). In my opinion, pending any decision by the Full Court, the opinions of Wilcox J and Finkelstein J should be regarded as out of line, and the other decisions to which I have referred should be followed. I should say that there are other decisions which have referred to this line of authority. I have only mentioned those of which I am aware which contain a reasoned discussion of the point.

9 Approaching the applicant's case in this way, the only issue which is even faintly arguable as being outside s 474 is that raised by par 8 of the applicant's affidavit. Otherwise, the decision of the Tribunal was plainly a bona fide attempt to exercise a statutory power, it related to the subject matter of the legislation and is reasonably capable of reference to the power given to that body. On examination, however, the reference to s 425 is misconceived. The applicant was invited to, and did, appear before the Tribunal to give evidence and present arguments. So far as s 426 is concerned, the applicant does not contend that notice was given pursuant to s 426(2). Rather, the applicant alleges default on the part of the migration agent who was representing him at the time in failing to give such notice. Thus, even if a breach of s 425 or s 426 would give rise to relief notwithstanding s 474 (which I need not decide), no breach of either section is established here.

10 The application is dismissed. The applicant is to pay the costs of the respondent.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated: 30 April 2002

The applicant appeared in person
Counsel for the Respondent:	J Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	29 April 2002
Date of Judgment:	30 April 2002