NACA v Minister for Immigration and Multicultural Affairs [2002] FCA 63

FEDERAL COURT OF AUSTRALIA

"NACA" v Minister for Immigration and Multicultural Affairs [2002] FCA 63 IMMIGRATION – protection visa – well-founded fear of persecution claimed for consequences of refusal to join the Russian FSB – application erroneously brought upon no longer applicable s 476 grounds – in any event application based upon s 476 grounds would have failed – relief not sought pursuant to s 39B Judiciary Act 1903 within 28 day application period or at all – not appropriate vehicle to address operation of privative clause.

Migration Act 1958 (Cth) ss 474, 477 Judiciary Act 1903 (Cth) s 39B The King v Murray; Ex parte Proctor (1949) 77 CLR 387 referred to "NACA" v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1545 of 2002 CONTI J 6 FEBRUARY 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY 1545 OF 2001

BETWEEN: NACA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 6 FEBRUARY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. 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 1545 OF 2001

BETWEEN: NACA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE: 6 FEBRUARY 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for review of the decision of the Refugee Review Tribunal ("the Tribunal") made on 9 October 2001. The Tribunal affirmed the decision of the delegate of the Minister not to grant the Applicant a protection visa, because as in the case of the delegate, the Tribunal was not satisfied that the Applicant was a refugee within the Convention definition. The Applicant was not legally represented in these proceedings before the Court. 2 The Applicant is a citizen of the Russian Federation born on 9 December 1954. He arrived in Australia on 16 September 1999, and on 23 September 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"). When the matter was before the Tribunal, the Applicant claimed to have a well-founded fear of persecution on the basis of his political stance arising from the circumstance that he refused to join the Russian Security Service (FSB). He claimed that he faced arrest, being charged with treason, unfair imprisonment and possibly even death, in the event of his return to Russia. 3 The Tribunal accepted that the Applicant's claim that he was interviewed by Officers of the FSB on three occasions, namely in January, February and April 1999. The Tribunal also accepted that the FSB wanted to recruit the Applicant and that such an approach was overtly refused by the Applicant. The Tribunal further accepted "in a general sense" that the Applicant's refusal could be recognised as expressing a particular philosophical political opinion opposed to the government and the authorities in Russia. The Tribunal concluded that despite the consequences of such refusal, the Applicant did not face a real chance of being persecuted for a Convention reason in Russia, if he returned to that country. For the reasons that I will set out below, it is, however, unnecessary for me to outline with any further specificity the nature of the Applicant's claims and the respective findings and reasons of the Tribunal in relation to those claims. 4 The application for review refers to three unparticularised grounds in support thereof. Such grounds are as follows: "(a) there was no evidence or other material to justify the making of the decision; (b) there was a failure to comply with s 430 of the Act, which requires, pursuant to paragraphs s 430(c) and s 430(d), to set out findings on any material questions of fact; and refers to the evidence or any other material on which the findings of fact were based; and (c) there was a failure to comply with the obligation to give reasons amounting to a procedural error pursuant to s 476(1)(a)." 5 In addition to the shortcomings pertaining to the manner in which such grounds of review are structured in the application, which were drafted by a migration agent, such application has been made purportedly, albeit erroneously, pursuant to s 476 of the Migration Act, that is to say, without regard to the enactment of Part VIII of the Act in its present form. Consequently there has been placed before the Court a notice of objection to competency filed by the Respondent. The Respondent objects thereby to the jurisdiction of this Court to entertain this application for an order of review under s 476, or any other provision of the Migration Act 1958, on the ground that "s 476 of the Act, as at the commencement of these proceedings, was not a source of any jurisdiction by the Federal Court of Australia to review the decision sought to be challenged". In addition, such notice of objection to competency states that the decision sought to be challenged is a privative clause decision as that term is defined in s 474(2) of the Act. Section 474 of the Act provides: "(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court or on any account." 6 The Respondent's written submissions, which were filed in my chambers on 4 February 2002, envisaged that such notice of objection to competency might not be pressed at the hearing. That course was foreshadowed in case the Applicant decided to amend his application in order to seek review pursuant to s 39B of the Judiciary Act 1903 (Cth). When the matter was called on for hearing, the Applicant failed to make any such application. Furthermore, he did not attempt to identify any ground upon which he sought judicial review under s 474 of the Act (as distinct from the former s 476 provision). Consequently, the Respondent decided to press the notice of objection to competency. 7 It is apparent that in order to apply to the Federal Court for review of a decision of the Tribunal, any such application must now be brought pursuant to s 39B of the Judiciary Act. Such avenue of review is substantially limited in operation by s 474 of the Act, which is a privative clause decision provision applying inter alia to decisions of the Tribunal. For the reasons I will now give, I do not consider the present matter to be an appropriate vehicle for any consideration pertaining to the operation of the privative clause under the Act. 8 I am of the view that the application before the Court is incompetent by reason of its failure to enliven the Court's jurisdiction to hear the matter pursuant to s 39B of the Judiciary Act as required by the recent amendments to the Act. Even if I were to grant leave to the Applicant to make an application for review pursuant to s 39B of the Judiciary Act, any such application would be well outside the 28 day mandatory period in which an application for review must be filed: see s 477 of the Act. It is clear from the Act that there is no discretion to extend such 28 day period. 9 Even if there did exist a discretion to extend the time to make application pursuant to s 39B, upon my reading of the Tribunal's reasons in this case, there is no discernible error in reasons for decision. The Tribunal was careful in its detailed examination to explain why there was no interest shown on the part of the Russian authorities towards the Applicant over the three year period from February 1996 to January 1999 after he had returned from Latvia to Russia. The Tribunal emphasised that if the Applicant had been of serious interest to the Russian authorities, there would likely have been some action taken on their part against him shortly after the last occasion he was interviewed by the FSB, namely, in April 1999. The Tribunal found that the Applicant was not subjected to further questioning by the FSB after April 1999. If he had been of such interest to the authorities, the FSB would have known that he was in possession of a valid passport and would have taken the necessary steps to ensure his surrender of such passport, or, in the alternative, cancel the same. Finally, the Tribunal was of the view that the Applicant's case for review contained a serious flaw, in that the authorities did not take any action to prevent him from departing Russia. 10 Apart from the application being incompetent, I am of the view in any event that there is nothing in the reasons of the Tribunal which demonstrate that it had not made an appropriate effort to address and deal with the issues relevant to the application before it: see generally The King v Murray; Ex parte Proctor (1949) 77 CLR 387 at 400 per Dixon J (as he then was). 11 I order that the application for review must be dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.