NACG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1011

FEDERAL COURT OF AUSTRALIA

NACG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1011

APPLICANT NACG OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 111 of 2002 STONE J 5 AUGUST 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 111 OF 2002

BETWEEN: APPLICANT NACG OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 5 AUGUST 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 111 OF 2002

BETWEEN: APPLICANT NACG OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE: 5 AUGUST 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT BACKGROUND 1 The applicant in this proceeding is a citizen of France who arrived in Australia on 7 October 2000. She applied for a protection visa on 3 December 2001. Her application was refused by a delegate of the respondent Minister on 13 December 2001 and that decision was affirmed by the Refugee Review Tribunal ("Tribunal") on 31 January 2002. The applicant seeks to have the decision of the Tribunal set aside in this Court. APPLICANT'S CLAIMS 2 In her application to the Tribunal for a review of the Minister's delegate's decision the applicant claimed to fear persecution from the government of France and from the medical profession in France because of her adverse political opinion. Her claims were set out in a written statement attached to her protection visa application and in a letter to the Tribunal dated 30 December 2001. Further details of her claims were provided at a Tribunal hearing held on 31 January 2002. 3 According to the applicant she had worked as a nurse in various hospitals and clinics in France. She alleged that her brother-in-law died in 1982 as a result of medical negligence and that this incident involved certain falsification of records. Apparently a doctor and two nurses were gaoled as a result of that incident. Because of her complaints and her perceived connection with the then Health Minister the applicant claimed that people had tried to frame her for stealing equipment and drugs. 4 Before the Tribunal the applicant alleged that because of the complaints she had made and because of her political beliefs she was persecuted by the authorities. The applicant also claimed suffering inadequate care during various medical treatments and operations she had in 1997 and 1998. She claimed that during hospitalisation in 1997 threats were made towards her, that she was restrained and that she was neglected in a manner that she considered life-threatening. She also claimed that various doctors and nurses refused to treat her after she complained of her treatment to the Health Minister, that she had additional problems at hospitals outside of Paris and that she was threatened with admission to a psychiatric ward. 5 While the applicant was in hospital in 1999 various documents including an airline ticket were allegedly stolen from her to prevent her leaving the country. After her release she was followed on two occasions by two men. Because she was scared by this behaviour the applicant went to Martinique to replace certain documents and to obtain a passport. She claimed that while there she was robbed and assaulted by a policeman's son who had been paid to steal her documents. After lodging a complaint about this incident she alleged that the government stopped paying her pension for one year. After leaving France, which she did legally, the applicant went via the United States of America to Tahiti. From Tahiti she travelled to Australia, returning to Tahiti for further medical treatment. 6 In her letter to the Tribunal provided after the decision of the Minister's delegate and dated 30 December 2001 the applicant also claimed to fear returning to France for three additional reasons: firstly, because she knew too much about politics and ethics surrounding the French blood transfusion scandal; secondly, that she knew the residence of the woman who had killed the captain of the Rainbow Warrior when it was bombed in Auckland in 1988; thirdly, because she gave information about missiles on the French destroyer Colbert to an officer of the Royal Australian Navy in 1988. 7 Before the Tribunal the applicant denied that these additional claims were recently invented to enhance her application. The Tribunal commented that it was the first time these claims had been made despite the fact that the applicant had been in Australia since October 2000 and that she had had a migration agent assist her in the preparation of her application. 8 The applicant claimed to fear returning to France because she would be "drugged and institutionalised or made to disappear because of [her] activism against the medical profession and more recently the government." She also claimed she could not return to anywhere else in Europe because of the connections of the French Government. TRIBUNAL'S FINDINGS 9 The Tribunal found that there was no credible evidence before it which would link the circumstances of the applicant's claims to any Convention reason. The Tribunal considered that what the applicant had experienced and what she feared were purely personal problems noting that it had: "examined the applicant's claims and considered whether the persecution she fears is for reasons of her political opinion. Although the fact that the applicant pursued complaints of medical negligence and was associated with the then Health Minister may raise an issue as to whether the harm she fears is for reasons of her political opinion, in Ali Reza Jahazi v Minister for Immigration and Ethnic Affairs (1995) 133 ALR 435 [sic] at 443 it was held that a bare causal connection between the persecution and a Convention ground was insufficient to base a claim to refugee status." 10 After referring to the fact that any claimed persecution must be attributable to one of the five Convention grounds, the Tribunal found that the primary motivating factor behind the harm that the applicant fears from the medical establishment and the French government was the fact that she pursued medical negligence complaints against certain doctors and nurses. The Tribunal also accepted the independent country information that referred to France as a democratic state which respects the rule of law, has a court system and has mechanisms for processing medical negligence complaints. The Tribunal did not accept the claims detailed in the applicant's letter of 30 December 2001. Noting the circumstances of the letter, the Tribunal found the claims were recent inventions fabricated by the applicant in order to create a refugee profile and in response to the Minister's delegate's decision. JURISDICTION TO REVIEW 11 The Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)commenced operation on 2 October 2001. Since that date the jurisdiction of this Court to review decisions of the Tribunal is constrained by the fact that pursuant to s 474 of the Migration Act 1958 (Cth) ("the Act") the Tribunal's decision is a privative clause decision. According to s 474(1) of the Act such decisions are final and conclusive and cannot be judicially reviewed. Despite the prohibitive nature of this section, it is accepted that the jurisdiction of this Court has not been totally ousted. What limited jurisdiction the Court has to review Tribunal decisions, commonly referred to as Hickman grounds, is conferred by s 39 of the Judiciary Act 1903 (Cth). 12 Counsel for the applicant, Mr Brezniak, challenged the Tribunal's decision on two bases, both of which he claimed involved jurisdictional errors. First, he claimed that the Tribunal should have considered the merits of the claim made by the applicant in her letter of 30 December 2001. Secondly, he claimed that the Tribunal erred in concluding that the treatment metered out to the applicant in France was not persecution for a Convention reason. 13 Both of these claims, in my opinion, involve an attack on the Tribunal's findings of the merits of the applicant's claim and, as such, are beyond the jurisdiction of this Court. This is so, irrespective of how one assesses the limited jurisdiction of the Court under the Act as it presently stands. In relation to the Tribunal's treatment of the letter of 30 December 2001 it is clear that the Tribunal found a major and compelling credibility problem arising from the fact that such serious claims were not raised until an adverse finding had been made by the Minister's delegate. This negative finding of the applicant's credibility was such that the Tribunal rejected the claims made in the applicant's letter. This was a matter within the competence of the Tribunal and this Court cannot interfere with that decision. 14 In relation to the question of motivation for the treatment that the applicant suffered in France the Tribunal concluded that the primary motivating factor was not the applicant's political opinion but, rather, the actions that she had taken against the medical establishment. As counsel for the respondent pointed out, s 91R of the Act entrenches the decision of the Court in Jahazi v Minister for Immigration for Immigration and Ethnic Affairs (1995) 61 FCR 293; 133 ALR 437 and makes it quite clear that the Tribunal was within its rights to come to such a decision. This is supported by the decision of the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574. 15 Even if the Tribunal was wrong in coming to the conclusions it did in both these issues they do not, in my view, come close to raising any jurisdictional error. As such, the application must be dismissed with costs and I order accordingly.