FEDERAL COURT OF AUSTRALIA NABB v Minister for Immigration & Multicultural Affairs [2002] FCA 69 Migration Act 1958 (Cth) Judiciary Act 1903 (Cth) R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 NABB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1485 OF 2001 GYLES J SYDNEY 5 FEBRUARY 2002 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1485 OF 2001 BETWEEN: NABB APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: GYLES 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 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 1485 OF 2001 BETWEEN: NABB APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: GYLES J DATE: 6 FEBRUARY 2002 PLACE: SYDNEY REASONS FOR JUDGMENT (EX TEMPORE) 1 On 18 October 2001 the Refugee Review Tribunal ("the Tribunal") affirmed the decision of a delegate of the respondent Minister to refuse an application for protection visas for the applicant and his family members. 2 On 2 November 2001 this proceeding was commenced by application for an order of review according to a form appropriate under O 54 and O 54B. The ground of the application was: "The decision involved an error of law in that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by probative evidence." There was a note added: "More grounds to be supplied in due course". There were no further particulars provided. The document was filed by the applicant himself from the Villawood detention centre. 3 On 15 November 2001 the application came before the Court when, amongst other orders, the following orders were made: (1) The applicant file and serve any amended application and any evidence upon which he proposes to rely on or before 6 December 2001. (2) The applicant file and serve an outline of submissions on or before five working days prior to the hearing date. The matter was listed for hearing not before noon on 12 December 2001. 4 The matter came on for hearing before me on 12 December 2001. On that occasion the applicant sought an adjournment in order to obtain legal advice, having put before me some information relevant to that issue. Over the objection of counsel for the respondent I granted that application and stood the matter over to today for hearing. I ordered that any proposed amendment of the application on behalf of the applicant be notified to the Minister's solicitors on or before 18 January 2002 and directed that the applicant should file and serve written submissions on or before 21 January 2002. I directed that the respondent was to file and serve written submissions on or before 31 January 2002. 5 The Minister's counsel had provided written submissions prior to the hearing commencing on 12 December 2001 which raised a number of legal problems about the application, including its form, and those submissions were explored to some extent in open court on that day. There was no notice of any amended application given and no written submissions were filed by or on behalf of the applicant. That is still the position and the applicant has no legal representation. I have no alternative but to give attention to the matter as it stands, in the light of the submissions which have been made on behalf of the respondent. 6 The respondent's counsel submits that the Court has no jurisdiction to hear the application as it is framed, as it proceeds upon the basis that the Migration Act 1958 (Cth), as it stood before the amendments last year governs the position. Those amendments (which have been referred to by counsel for the Minister in his written submissions) plainly take away the jurisdiction of the Court which had previously existed under that legislation in relation to decisions of this character. In my view, counsel is correct in submitting that a combination of s 475A and s 476 of the Migration Act limit the jurisdiction of the Court in the way that I have mentioned. I am satisfied that the transitional provisions, to which some reference was made on the last occasion, do not derogate from that result so far as an application filed after those amendments is concerned. 7 It is conceded on behalf of the Minister that there is jurisdiction in the Court to review decisions of this character pursuant to s 39B of the Judiciary Act 1903 (Cth) but subject to the privative provisions of s 474(1) of the Migration Act. As I have said, this is not an application pursuant to s 39B. It is conceivable that a question could arise as to whether there is any power at this stage to consider an application under that section. That is not a matter which has been raised by the Minister or upon which I have heard argument. 8 It is submitted for the respondent that no matter how beneficially one considers the ground which is taken in the application, it could not form any basis for review having in mind the privative provision and the authorities on those provisions, principally R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598. I do not think it is necessary, for present purposes, to proceed to an analysis of the consequences of those decisions upon the task for the Court under the statute as, in the present case, the submission for the respondent is clearly correct. 9 Furthermore, even if s 39B applied without a privative provision, or if the former regime pursuant to s 476 of the Migration Act had applied, the ground alleged in the application would found no basis for relief. Counsel has submitted that making findings of fact which are not rationally supported by probative evidence is not a ground which would have been available in those circumstances. 10 The applicant, who is unrepresented, does not speak English and is in detention, was unable to add anything of any value to the legal debate. I did permit him, through the interpreter, to say what he wished to say. He had prepared a written document which the interpreter did his best to translate to the Court. Technically, and in substance, on the application as it stands in the absence of any amendment, I am not able to give any attention to those matters insofar as they might go beyond the stated ground. Although sympathetic to the position of an applicant in his position, the opportunity to put the matter in order has existed since 15 November 2001, when the matter was first before the Court, and it is not for the Court now, or for the respondent, to construct a case for the applicant. Having said that, and giving such attention as I could to what was said by the applicant, it seems to me that counsel for the respondent is correct in submitting that the matters which were raised today were basically arguments of a factual nature as to the merits of the reasoning of the Tribunal and of a kind which might have been put to the Minister and/or the Tribunal in exercise of the jurisdiction which they have to decide the facts. 11 As has been explained in submissions from counsel for the respondent, there is no role for the Court to enter upon findings of fact or the merits of the case as to whether or not the applicant is a refugee within the meaning of the legislation. That distinction is fundamental to the role which the Court plays in these matters. Under all the circumstances, it seems to me that, for these various reasons, I have no alternative but to, and I do, dismiss the application. There is no reason in principle to depart from the usual rule that costs will be awarded. I therefore order that the applicant pay the costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 7 February 2002 The applicant was self represented. Counsel for the Respondent: N Williams SC and S Lloyd Solicitor for the Respondent: Clayton Utz Date of Hearing: 6 February 2002 Date of Judgment: 6 February 2002