Applicant NAAQ v Minister for Immigration & Multicultural Affairs [2002] FCA 633

FEDERAL COURT OF AUSTRALIA

Applicant NAAQ v Minister for Immigration & Multicultural Affairs

[2002] FCA 633

APPLICANT NAAQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 24 OF 2002 GYLES J SYDNEY 1 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 24 OF 2002

BETWEEN: APPLICANT NAAQ

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: GYLES J

DATE OF ORDER: 1 MAY 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 24 OF 2002

BETWEEN: APPLICANT NAAQ

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: GYLES J

DATE: 1 MAY 2002

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT 1 The applicant is a citizen of the People's Republic of China who arrived in Australia on 2 July 1998. On 28 July of that year he lodged an applicationfor a Protection (Class AZ) Visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) ('the Act"). On 16 May 2000 a delegate of the Minister refused to grant such a visa, and on 15 June 2000 the applicant applied to the Refugee Review Tribunal ('the Tribunal") for review of that decision. By a decision handed down on 20 December 2001, the Tribunal affirmed the decision not to grant a Protection Visa. On 15 January 2002 the applicant, who was then and remains now unrepresented, filed an application for an order of review in this Court, referring to O 54 and O 54B, and making an application for review under s 476 of the Act. 2 That application is inappropriate, as s 476 has effectively been repealed, that is, the section to which reference is made is no longer in the form it was previously. The only jurisdiction which the court has to review decisions of the Tribunal is pursuant to s 39B of the Judiciary Act 1903 (Cth), but that jurisdiction is confined by s 474 of the Act. Section 474 has been the subject of a number of decisions of the Court concerning its validity and its operation. In a decision I delivered on 30 April 2002, I summarised what I saw was the effect of those decisions. My conclusion is that the appropriate course is to consider first whether s 474 is applicable in the sense that there is any claim made which would fall outside the operation of the privative clause of that section. If the answer is no, that is an end of the case. The decision to which I refer is NABC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 539. What this decision means is that the grounds of attack upon the decision of the Tribunal are only those grounds provided for by the line of authority known as the Hickman line of authority. Absent such a ground, no attack can be made for what might be called general administrative law errors. 3 The Court received informally a communication from a barrister practising in New South Wales which attached to it a draft amended application which was said to be an application under s 39B of the Judiciary Act and Pt 8 Div 2 of the Migration Act. Copies of these documents were apparently provided to those representing the Minister. This was obviously framed by counsel in an endeavour to frame the proceedings in a form which would give the Court jurisdiction. Counsel for the Minister indicated no opposition to this amendment, and, in those circumstances, I would not have myself raised any difficulty about it. The applicant, of course, is unrepresented and seemed at a loss to know what to do. At that stage I marked the amended application and the letter from counsel for identification pending further consideration of the matter. 4 I have now heard the applicant's explanation of his complaints about the decision of the Tribunal. Despite some hesitation in translation, and despite some concern about translation expressed at one stage by the applicant, I am confident that I was able to follow the gist of what he was saying in his address to me. I have that confidence in particular because what he did explain was a longer version of that which is summarised at [1] to [3] of the grounds contained in the document "Marked for Identification 1". 5 The criticisms by the applicant of the reasoning of the Tribunal in the three complaints he makes would have merit if I were sitting as an appeal judge from the decision of the Tribunal. However, I am not sitting as an appeal judge from the Tribunal. The jurisdiction which I exercise is now very limited. It is, in effect, to decide whether the decision of the Tribunal was a genuine attempt to exercise the power it had, whether the decision related to the subject matter of the legislation, and whether the decision is reasonably capable of reference to the power given to the Tribunal. In addition, if there is any breach of an essential condition of the legislation, that might also provide a ground of attack. Having read the decision of the Tribunal, considered the draft amended application, and heard what the applicant has put to me today, in my opinion there is no ground upon which I could overturn or set aside the Tribunal decision. 6 The first point which is argued is that the Tribunal incorrectly assumed that the applicant was claiming to be a primary judge in the sense of a full or senior judge, whereas in fact the applicant was claiming to be an assistant judge, and this confusion of the Tribunal led to it drawing wrong conclusions as to the failure by the Chinese authorities to list the applicant as a judge. The second point related to a finding by the Tribunal that it did not accept the applicant's claim to have actually witnessed the dissection of the body of an executed criminal, that being a very important aspect of the reasoning of the Tribunal in rejecting the applicant's case. The applicant says that there was no evidence to support that finding and that it was purely speculation on the part of the Tribunal. The third point related to the rejection by the Tribunal of the authenticity of a sealed document produced by the applicant, as to his identity, which again was an important aspect of the Tribunal's reasoning in rejecting the applicant's case. The applicant argues that the Tribunal had no proper basis for rejecting the document as authentic or genuine and if there were doubts about it, those doubts should have been considered by experts rather than by the Tribunal, which has no expertise in that respect. 7 With one exception, which I will mention in a moment, all of these complaints relate to the reasoning of the Tribunal and to the facts that it found in the course of that reasoning. They do not fall within any of the exceptions to the operation of s 474 of the Act. The only possible exception to that conclusion was a contention (not made in either the application or the proposed amended application) that the Tribunal's assessment of the case involved a deliberate mistake or mistakes. If successful, that would fall within one of the exceptions to which I have referred as not a genuine attempt to exercise power. However, there is no material produced in support of that contention apart from the reasoning process of the Tribunal Member and the criticisms which have been made of it. It is rare indeed that a finding of lack of good faith would be made in relation to a member of this Tribunal, based purely upon the published reasons. Having read those reasons for myself, whilst I can understand that the applicant may have the complaints that he does about some of the reasons, that falls well short of establishing lack of good faith or bias. In the circumstances, it seems to me that going through the task of amending the application is without purpose because it does not give rise to any proper basis for the court exercising jurisdiction. I propose to admit the proposed amended application as an exhibit, purely for the purpose of having it preserved so that it can be referred to if necessary, and that will become exhibit A. 8 Under the circumstances I dismiss the application. The applicant is to pay the costs of the respondent. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.