NAOJ of 2002 v Minister for Immigration & Multicultural& Indigenous Affairs [2003] FCA 57 (10 February 2003)

Last Updated: 4 April 2003

FEDERAL COURT OF AUSTRALIA

NAOJ of 2002 v Minister for Immigration & Multicultural &

Indigenous Affairs [2003] FCA 57

IMMIGRATION - Refugee Review Tribunal - whether Tribunal misunderstood applicant's claim as one based on `race alone' - privative clause decision - jurisdictional error - application for extension of time refused.

Migration Act 1958 (Cth) s 474

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 cited

Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134/2002 [2003] HCA 1 cited

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 cited

NAOJ of 2002 v MINISTER FOR IMMIGRATION

& MULTICULTURAL & INDIGENOUS AFFAIRS

N 1302 of 2002

LINDGREN J

10 FEBRUARY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1302 OF 2002

BETWEEN:	NAOJ of 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	4 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for extension of time be refused.

2. The applicant pay the respondent's costs of 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 1302 OF 2002

BETWEEN:	NAOJ of 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	10 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant seeks an extension of time in which to file a notice of appeal against a decision of the Federal Magistrates Court. The decision was given by Federal Magistrate Raphael on 31 October 2002. The applicant attended before the Federal Magistrate on that occasion and understood at the conclusion of the hearing that his application had been dismissed with an order for costs. In his affidavit in support of the application for extension of time he states that he was not advised that an appeal to this Court should be commenced within 21 days from 31 October 2002. That period of 21 days expired on 21 November 2002.

2 The applicant states that he was under the mistaken belief that he had 28 days in which to file a notice of appeal. That period expired on 28 November 2002. Nonetheless he did not file a notice of appeal by that date either. In fact, he commenced this proceeding eight days later on, 6 December 2002. Thus the applicant was 15 days late by reference to the time of 21 days allowed and he was also eight days late by reference to the time which he believed he had.

3 The respondent Minister does not contend that he would suffer any prejudice if an extension of time were granted, but Ms Hanstein, solicitor, who appears for the Minister, submits that no adequate reasons are shown by the applicant for his lateness. I agree that the reason given by the applicant is not strong but since I am of the view that an extension of time would be futile because an appeal would be futile, I will decide the present application on that ground.

4 The application heard and determined by the Federal Magistrates Court was an application for review of a decision of the Refugee Review Tribunal (`the Tribunal'). The applicant was not represented before Federal Magistrate Raphael, but was represented before me by Mr Gnanakaran, solicitor, whose submissions I found helpful. The ground relied on by Mr Gnanakaran was that the Tribunal erroneously considered that the applicant's case was that he feared persecution on the ground of race alone. Mr Gnanakaran referred me to paragraph 69 of the Reasons for Decision of the Tribunal which contained the following two sentences:

`While in his original statement, the Applicant seemed to suggest that all the Convention grounds were inextricably interwoven in his claims, at the hearing, the applicant said that the ground on which he relied as entitling him to a protection visa was the Convention reason of race. I am not satisfied that there is anything in the evidence before me to suggest that the Applicant was detained by police on two occasions because of his race (Tamil ethnicity) or any other Convention ground.' (my emphasis)

The words in bold have given rise to the applicant's attack on the Tribunal's Reasons for Decision. The significance of this passage must, however, be understood in the context of all that precedes it.

5 It is clear that the applicant, a national of India, was alleging past persecution, and a fear of future persecution, on the ground of his support for the Liberation Tigers of Tamil Eelam (`LTTE'). Thus, according to the submission, his claim was of past persecution, and a fear of future persecution, for reasons of political opinion within the definition of `refugee' in the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as `amended' by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, `the Convention').

6 The Reasons for Decision of the Tribunal contain numerous references to the LTTE. It would be tedious to refer to all them. An early example is to be found in the second paragraph of those Reasons which is as follows:

`In summary, the Applicant claims that he has suffered and fears persecution from the authorities in Tamil Nadu, India because he is suspected of being involved with the Liberation Tigers of Tamil Elan [sic] (LTTE), a terrorist organisation, banned in India.'

There are many other references to the LTTE in the Tribunal's account of specific claims made by the applicant.

7 The Tribunal referred to discrepancies and implausibilities in the applicant's claims. In particular, the Tribunal referred to the late making of claims on the hearing which had never been mentioned previously. In its Reasons for Decision, the Tribunal recited various questions which the Member had put to the applicant seeking his response. In paragraph 45, the Tribunal's Reasons state:

`Asked on what Convention ground he relied, the applicant said that he made his application on the basis of race.'

It is not disputed that he did say this but this would not relieve the Tribunal of the obligation to consider the claims made by reference to other categories of `reasons' referred to in the Convention definition of `refugee'.

8 In the `Findings and Reasons' section of the Reasons for Decision, paragraph 65 is as follows:

`Central to the claims of the Applicant is the suspicion of Tamil Nadu police that the Applicant was involved with the Sri Lankan terrorist organisation, the LTTE.'

In paragraph 68 the Member stated:

`While I could devote some time to the implausibility of a number of the claims of the Applicant, it is sufficient to say that even if I accept the claims of the Applicant at face value, I am not satisfied that the sum of the experiences of the Applicant amount to persecution as discussed earlier in this decision.'

9 There then follows the impugned paragraph 69, the first two sentences of which I set out earlier. Read in context it is clear that the Member was referring to yet another one of several changes of position on the applicant's part. The Member was pointing out that, whereas in his original statement the applicant seemed to suggest that all the Convention grounds were involved in his claims, on the hearing, he said that the ground on which he relied was that of race. This particular change of position did not loom large in the Tribunal's Reasons for Decision and is only one of a catalogue of changes, late claims, implausibilities and inconsistencies to which the Member referred.

10 As indicated earlier, I agree with the applicant's solicitor that the mere fact that an applicant might characterise his or her claim in one way by reference to the terms of the Convention definition does not relieve the Tribunal of the obligation of considering all relevant aspects of that definition, but in my opinion the Tribunal in this case did consider all relevant aspects of it. Indeed, in the second sentence in paragraph 69 set out at [4] earlier, the Member said he was not satisfied that the applicant was detained by the police because of race `or any other Convention ground'.

11 However one regards the Reasons for Decision, they amount to a rejection of the applicant's claims because:

(a) many of them were not believed; and

(b) even if all of them were believed, they did not show a current well-founded fear of persecution on a Convention ground.

12 I deferred giving judgment in this matter yesterday because the High Court was due to give judgment today in Plaintiff S157/2002 v Commonwealth of Australia and Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134/2002.

13 Judgments in those proceedings have now been delivered (see [2003] HCA 2 and [2003] HCA 1 respectively). Time has not permitted me to review all aspects of the judgments but I note that the case last mentioned, five of the seven Members of the Court, in a joint judgment, summarised the effect of the former case as follows (at [15]):

`Central to the operation of the new Pt 8 is the definition of `privative clause decision' in s 474(2). Section 474 is construed in Plaintiff S157/2002 v The Commonwealth of Australia ... with the result that, if they were infected by jurisdictional error, the decisions here of the Tribunal and the Minister were not privative clause decisions.'

Gaudron and Kirby JJ, in a dissenting judgment, stated (at [61]):

`So far as s 474 of the Act is concerned, various arguments were put on behalf of the prosecutors, including that that provision does not operate to preclude relief in respect of decisions involving jurisdictional error. For the reasons given in Plaintiff S157/2002 v The Commonwealth of Australia, that argument must be accepted. Accordingly, the question for decision in this matter is whether either the decision of the Tribunal or that of the Minister involved jurisdictional error.'

14 In my opinion, it is clear that the decision of the Tribunal in the present case was not infected by jurisdictional error. Whatever may be the nature and outer boundaries of the concept of `jurisdictional error', in the present case the Tribunal simply did not believe the applicant for reasons it gave. Accordingly, even taking into account the High Court's more restrictive view of the meaning of s 474 than had been adopted by a Full Court of this Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, and thus the wider jurisdiction to review now allowed by the High Court, nonetheless in the present case, a ground for judicial intervention is not shown.

15 For the above reasons, the Court orders that:

1. The application for extension of time be refused.

2. The applicant pay the respondent's costs of the application.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated: 10 February 2003

Solicitor for the applicant:	Mr P Gnanakaran of Gnana-Karan Solicitors
Solicitor for the respondent:	Ms S Hanstein of Blake Dawson Waldron
Date of Hearing:	4 February 2003
Date of Judgment:	10 February 2003