NACP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 169

FEDERAL COURT OF AUSTRALIA

NACP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 169

NACP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1578 of 2001 STONE J 27 FEBRUARY 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1578 OF 2001

BETWEEN: NACP

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 27 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 N 1578 OF 2001

BETWEEN: NACP

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE: 27 FEBRUARY 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Refugee Review Tribunal ("Tribunal") handed down on 6 November 2001. At the hearing today the applicant, who was not legally represented, requested that the hearing be vacated so that he might have an opportunity to obtain legal representation. 2 I refused that application because I am persuaded that there is no realistic prospect of this serving any useful purpose. 3 I was informed from the bar table by counsel for the respondent that at a directions hearing on 13 December 2001 the applicant was given the opportunity to participate in the Court's pilot migration legal advice scheme but that he did not avail himself of this opportunity. The applicant did not dissent from this proposition and admitted, moreover, that he had obtained advice from counsel in this matter. The applicant attributes his lack of legal representation today to his lack of sufficient funds but was not able to say how this situation could be remedied if the application were to be granted. Given that the applicant has not been entirely unadvised and also that I have no confidence that he is likely to be able to obtain legal advice in the future I refused his application. I should note that the respondent opposed the application on similar grounds. 4 The applicant is a citizen of Sri Lanka who arrived in Australia, from Fiji, on 23 April 1998. He claims to have a well founded fear of persecution because, in Sri Lanka, he was suspected of being a supporter of the group known as the Liberation Tigers of Tamil Eelam ("LTTE"). The applicant claimed that this suspicion had resulted from his association with his Tamil friend, and business partner, Sivakumar, who had taken orders to sew and supply army uniforms, which were completed in the applicant's tailoring shop. 5 The applicant claimed he was arrested, detained and tortured by the Sri Lankan Army and the police who accused him of supplying camouflage uniforms for the LTTE. The uniforms were allegedly identical with Sri Lankan Army uniforms and were to allow the LTTE to pose as the Sri Lankan Army when carrying out terrorist activities. The applicant claimed he was also being pursued by the LTTE for disclosing information that had led to Sivakumar's arrest. 6 The applicant's claims of physical and psychological suffering were detailed in a written statement attached to his application for a protection visa, in a statutory declaration dated 20 July 2000, in a written submission to the Tribunal dated 24 July 2000, and in a number of submissions from the applicant's representatives. The applicant claimed he would be arrested and tortured if he returned to Sri Lanka because of his previous arrest and because he was a young Sinhalese without connections in the Sri Lankan government. 7 He also claimed that, because he had acquired a profile as a suspected LTTE supporter and was on a police and army list, he would face torture and even death in custody if any incidents connected to the LTTE occurred. He further claimed that the authorities would have found out about Sivakumar's involvement with the LTTE and that the police would take revenge on him because he is perceived as a LTTE supporter. 8 The applicant claimed that because he did not adhere to reporting requirements imposed after his arrest, he would be detained without bail and risked torture or even death at the hands of prison guards or Sinhalese criminals in prison. The applicant also claimed that he would be suspected of canvassing support for the LTTE against the Sri Lankan government because of the length of time out of the country. The applicant stated that he further suffered because he had lost his business and personal possessions. 9 The Tribunal's decision was handed down on 6 November 2001. Therefore the jurisdiction of this Court in relation to that decision is governed by extensive amendments to the Migration Act 1958 (Cth) ("the Act") that commenced on 2 October 2001. In his application for review, however, the applicant has relied on provisions of the Act that, because of those amendments, are no longer current. The Court's present jurisdiction is founded on s 39B of the Judiciary Act 1903 (Cth)as reflected in s 477 of the Act. 10 The amendments to Pt 8 of the Act also mean that the decision now under challenge is a "privative clause decision" within the meaning of s 474. Section 474(1) provides that a privative clause decision: "(a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called into question in any court; and (c) is not subjection to prohibition, mandamus, injunction, declaration or certiorari in any court on any account." 11 This privative clause is similar to that considered by the High Court in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 ("Hickman"). In Hickman Dixon J (as he then was) commented at 615 that such clauses are: "interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body." 12 In effect the jurisdiction of this Court in reviewing decisions of the Tribunal is therefore limited to situations where the decision-maker has not made a bona fide attempt to exercise its power or where the decision does not relate to the subject matter of the legislation or where the decision cannot be seen as reasonably capable of reference to the power given to the decision-maker. The potential operation of the amended s 474 has been discussed in several recent cases; Walton v Philip Ruddock, The Minister for Immigration & Multicultural Affairs [2001] FCA 1839; SAAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 101. 13 As previously indicated, the application for review was apparently filed in ignorance of the amendments to the Act referred to in [9] and [10] above. Nevertheless before me today the applicant was invited to point to any ground of review that is permitted to this Court under the Act. Not surprisingly, he was unable to do so. His submissions concerned the merits of the case and mainly consisted of a challenge to the Tribunal's findings of fact. In particular the applicant claimed that the independent country information, on which the Tribunal relied in coming to its conclusion that the applicant did not have a well founded fear of persecution in Sri Lanka, was incorrect. This however, is not a basis on which this Court can intervene. It is not entitled to substitute its view of the merits for that of the Tribunal. In my own review of the Tribunal's reasons for decision I do not detect anything that might raise a permissible ground of review. 14 For these reasons the application is dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.