FEDERAL COURT OF AUSTRALIA NAPX of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 85 NAPX OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1266 OF 2002 LINDGREN J 7 FEBRUARY 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1266 OF 2002 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT BETWEEN: NAPX OF 2002 APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: LINDGREN J DATE OF ORDER: 7 FEBRUARY 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant 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 1266 OF 2002 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT BETWEEN: NAPX OF 2002 APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: LINDGREN J DATE: 7 FEBRUARY 2003 PLACE: SYDNEY REASONS FOR JUDGMENT INTRODUCTION 1 This is an appeal from the Federal Magistrates Court which is being heard by me pursuant to a direction of the Chief Justice under subs 25(1A) of the Federal Court of Australia Act 1976 (Cth). The decision of the Federal Magistrates Court was given on 13 November 2002 . On that date the learned Federal Magistrate dismissed the application and ordered the appellant to pay the respondent's costs and disbursements of the application fixed at $3800. 2 The application before the Federal Magistrate was for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 14 June 2002 and handed down on 4 July 2002. In fact the application for review of that decision was originally filed in this Court on 29 July 2002 and was transferred to the Federal Magistrates Court by order of Hely J on 15 August 2002. 3 The Tribunal's decision affirmed a decision of a delegate of the respondent Minister ("the Minister") refusing the appellant a protection visa. background 4 The appellant is a national of Sri Lanka who arrived in Australia on 6 March 2001. On 4 April 2001 he lodged an application for a protection (class XA) visa. The delegate's decision refusing the visa was made on 7 May 2001. On 25 May 2001 the appellant applied to the Tribunal for review of that decision. 5 The Tribunal reviewed the claims and evidence of the appellant The "Findings and Reasons" section of its Reasons for Decision were rather short. After an opening paragraph, the Findings and Reasons section was contained in the following four paragraphs: "The applicant claims to have been a target of the Janatha Vimukthi Peramuna (JVP) since he was very young about 7 to 9 years old and then was threatened on a continuing basis over the years. I have carefully considered these claims and do not accept any of them as being true. In particular whilst I accept that certain incidents may have occurred – such as robbery of his father's shop, I consider as totally contrived the applicant's attempt to make of these events a claim that he was either, at the time or later, personally targeted by the JVP or indeed anyone else. As was put to him at hearing, his story and claims are far fetched and not reasonable to believe as being true. In particular I do not accept that anyone would be threatening him from the age of 7 or 9 or even 12 over anything, nor do I accept that the JVP would have wanted him to join them at the age of 7 or 9. I do not accept, even if the earlier events were true that he would later be threatened or harmed over matters that happened many years ago. He was a child for virtually all of the time when the alleged robberies and things happened, and nothing actually ever happened to him, nor has anything ever happened to any member of his family, despite him attending the same school from 1985 through to 1998, and the family living at the one address from 1989 through to 2001. If anyone had wanted to harm him or his family they could have. I find that he was not a credible witness and has fabricated his claims of being of adverse interest to the JVP in order to advance a protection visa application. Further, even if aspects of his story were true (and I note as above I do not accept this) I would find that he does not meet the Convention definition of a refugee. In particular I note that what the anonymous callers are seeking is money. Threats by phone from anonymous callers are nothing more than that, they are not of a seriousness as could be considered as persecution under the Convention nor under section 91R of the Act. Apart from this the stated motivation of the callers is to obtain money. Whilst I accept that in some circumstances extortion can be for a Convention reason it is not apparent from the evidence given that this is so in the current circumstances. The extortion threats in this matter have nothing to do with any of the Convention grounds. Overall, I find that the applicant does not have a well-founded fear of persecution for reasons of a Convention ground." 6 The learned Federal Magistrate noted that there were four grounds for review of the Tribunal's decision relied on by the appellant through his solicitor Mr C Jayawardena, who, I might say, has represented the appellant before me and whose submissions I have found helpful. 7 While the learned Magistrate noted that Tribunal's decision was a privative clause decision within s 474 of the Migration Act 1958 (Cth) ("the Act") and that fact had a "significant impact upon the grounds of review ... available to the appellant", his Honour did review the Tribunal's Reasons for Decision in some detail. 8 He stated that he did not necessarily agree with the conclusion reached by the Member and that it seemed to His Honour: "that the presiding member has in a perfunctory way dismissed the appellant's story on the basis that it is inherently implausible that the appellant could have been sought to be recruited [into the Janatha Vimukthi Peramuna ("JVP")] at such an early age as the appellant had alleged." The learned Magistrate concluded that the Tribunal had been entitled to reach the conclusion on credibility which it had in fact reached. His Honour concluded that there had been no breach of s 420(2)(b) of the Act and "hence, no breach of an inviolable pre-condition to the exercise of power by the RRT". 9 His Honour held that the application must fail in the face of the privative clause, then added: "It is arguable that the appellant might have succeeded on some ground of review in the absence of the privative clause on the basis of the perfunctory way in which the presiding member dealt with the issue of credibility and the crucial issue of whether the appellant had been sought to be recruited as a child to engage in some form of political activity. I have decided that it is not necessary for me to draw any conclusion as to whether any ground of review could be made out on that issue in the absence of the privative clause. My conclusion is that the application fails in the face of the privative clause." reasoning 10 In the light of the High Court's decision in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 decided on 4 February 2003, s 474 is now to be construed so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. With respect, it is not clear today, 7 February 2003, precisely what is the scope of the decisions which fall within and the decisions which lie outside. 11 I invited Mr Jayawardena to enunciate all criticisms he wished to make of the decision of the Tribunal as if s 474 did not exist. I had in mind that if necessary Mr Bromwich, counsel for the Minister, would have the opportunity of contending that any deficiency identified by Mr Jayawardena did not in fact amount to jurisdictional error. Mr Jayawardena said that he relied on: bad faith, bias, error of law. 12 The error of law relied on was a failure to comply with s 420(2)(b) of the Act which is as follows: "The Tribunal, in reviewing a decision: (a) ... (b) must act according to substantial justice and the merits of the case." 13 In relation to bad faith and bias, Mr Jayawardena said that the terms in which the Tribunal's reasons were expressed revealed bad faith and bias. He referred to the fact that his client was, in effect, called a liar. But a conclusion that a witness is a liar, without more, does not demonstrate bad faith or bias. There was no material before me on which it could be suggested, and it was not in fact suggested, that the procedure followed by the Tribunal leading up to its conclusions, such as the Tribunal's treatment of the appellant in the course of the oral hearing, demonstrated bad faith or bias. 14 Neither bad faith nor bias is made out. 15 In relation to error of law, Mr Jayawardena relied mainly on what he said was a misunderstanding by the Tribunal of the claim made by his client as to persecution when his client was a child. I have read carefully the statement made by the appellant which was before the Tribunal. I do not have a copy of the transcript of the oral evidence. If one reads the appellant's statement dated 3 April 2001 and some supporting documents such as a letter dated 6 May 2002 from the Senior Superintendent of Police, Police Station Batticaloa, Sri Lanka, addressed "To Whom It May Concern", the nature of the claims which the appellant was making is, in some respects, not entirely clear. It is certainly clear that he was claiming that, at a very young age of perhaps 7 years to 12 years, he was, with his father and perhaps other members of his family, being persecuted by the JVP. I agree with the learned Federal Magistrate that a different view may well have been taken by another decision-maker, but I also agree with him that one cannot say that the Tribunal erred in law or failed to comply with s 420(2)(b) in its treatment of the appellant's claims. 16 There were other grounds given by the Tribunal for its conclusion that the appellant did not have a well-founded fear of persecution on a Convention ground, namely, the lapse of time from 1989 to 2001 between those events of which he complained and his departure for Australia, and the conclusion that the attempted extortion by anonymous telephone callers amounted to criminal activity not constituting persecution for a Convention reason. 17 I would prefer that the Tribunal's reasons had been more detailed but, in my opinion, they are not shown to be infected by bad faith, bias or error of law. conclusion 18 For the above reasons, the appeal will be dismissed with costs. 19 The orders of the Court are that: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 17 February 2003 Solicitor for the Appellant: Mr C Jayawardena Counsel for the Respondent: Mr R J Bromwich Solicitor for the Respondent: Clayton Utz Date of Hearing: 7 February 2003 Date of Judgment: 7 February 2003