NASM v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 452

FEDERAL COURT OF AUSTRALIA

NASM v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 452

MIGRATION – appeal – decision of Federal Magistrate to affirm decision of Minister not to grant protection visa – attempt to rehearse substance of what was put to the RRT – no legal error identified – no error rendering s 474 privative clause inoperative.

Migration Act 1958 (Cth)

Koulaxazov v Minister for Immigration and Multicultural and Indigenous affairs [2003] FCAFC 75 referred to NASM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1379 OF 2002 CONTI J 13 MAY 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1379 OF 2002

BETWEEN: NASM

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 13 MAY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant is to 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 1379 OF 2002

BETWEEN: NASM

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE: 13 MAY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of Driver FM given on 20 December 2002, whereby his Honour dismissed an application for review of the decision of the Refugee Review Tribunal ("RRT") handed down on 23 July 2002, which in turn had affirmed a decision of the Minister's delegate given on 19 June 2001 not to grant a protection visa. I dismissed the appeal on 13 May 2003. The following are my reasons for judgment forwarded to the parties. 2 The appellant arrived in Australia on 30 January 2001. He claimed to be a citizen of India born in 1970. On 28 February 2001, he lodged an application with the Department of Immigration and Multicultural and Indigenous Affairs for a protection visa. He further claimed to be an Indian Tamil and a Muslim, and that if he returned to India, his life would be in danger, for the reason that the police would arrest him and accuse him of working with the LTTE. He further claimed to have been brought up with many Sri Lankan friends, and had assisted Sri Lankan Tamil refugees from the Vanni area of Sri Lanka. His alleged experience in India as a consequence included being twice arrested and accused of assisting the LTTE, and on each occasion badly beaten. He claimed that if he returned to India, he would be unfairly treated, harassed and tortured by police under India's anti-terror laws. He went to Germany in March 2000, but did not apply for protection as a refugee in Germany, allegedly because he did not know the language or how to apply. 3 The Minister's delegate, by a careful and detailed reasoning, expressed its lack of satisfaction with the appellant's claim that he suffered harm in India involving persecution, and with his further claim that he would not be able to relocate within India because he would be readily recognised as a Tamil in certain areas of that country, and handed back to police authorities in the Chennai area. 4 The RRT affirmed the delegate's decision. It was not satisfied that the appellant had been or would be suspected of assisting the LTTE, or had been or would be arrested under anti-terror laws. The RRT also found the appellant's evidence as to his suspected involvement with the LTTE, and as to his arrests, to be unconvincing. The RRT observed that he had left and re-entered India on three separate occasions for a number of reasons, and further that he had been able to leave and re-enter India on these occasions without apparent difficulty. It further observed, inter alia, that the appellant is a well educated young man who had made a success in the travel business, and it was not persuaded that it would be unreasonable for him to relocate elsewhere in India. 5 Driver FM summarised the appellant's submissions on the application to the Federal Magistrates Court of Australia, in the course of his Honour's reasons for judgment. The appellant was represented at the hearing in that Court by Mr Bharati, a solicitor. His Honour noted that a claim based on a failure to accord procedural fairness had been abandoned at the outset of the hearing, and that in reply, an argument of the appellant based on lack of good faith had been abandoned. For the reasons thereafter following, Driver FM rejected the remaining grounds for review, which he described as a "…failure to act on the proper principles for consideration of the merits of the case and otherwise committ[ing] an error of law". 6 As to the first of those latter two grounds, Driver FM observed as follows in relation to the RRT's reasons for judgment: "It is true that there is no specific mention of that statement in the reasons for decision of the RRT. However at page 7 of those reasons (court book, page 79), the presiding member clearly deals generally with the applicant's claims arising out of his asserted involvement with the LTTE. The presiding member clearly did not accept the assertions made by the applicant. Given that the presiding member did not accept those assertions, it was not necessary for the presiding member to consider the risk factor that would arise from such an involvement. The presiding member, however, went on to say that even if he was wrong in rejecting the applicant's assertions about his involvement with the LTTE, the applicant had left India on a number of occasions without difficulty which, in the view of the presiding member, indicated that he was of no interest to the authorities. The presiding member also found that even if he was wrong on that matter and that if he faced risk in his home area in Chennai in Tamil Nadu State, he could reasonably relocate to another area within India. I find, therefore, that there was no error of law by the RRT in not dealing specifically with the risk factor raised by the applicant of involvement with the LTTE." 7 As to the second of those two factors, his Honour found as follows: "Mr Bharati also submitted that the RRT committed an error of law in not giving advance notice to the applicant of the matters he would need to establish in order to qualify for a protection visa. In my view, there is no obligation on the RRT to give such advance notice, although it may chose to do so in particular cases. The scheme of the legislation establishes clearly, in my view, that it is for the applicants to establish that they are persons to whom Australia has protection obligations under the Convention. The role of the RRT is to test the matters raised by the applicants in support of an application. While it may assist that process to give applicants advance notice of what they need to establish, I do not see any legal obligation arising out of the Migration Act or elsewhere for that to be done." 8 The Federal Magistrate referred to other matters of complaint appearing in the written submissions of Mr Bharati placed before him, which his Honour considered to have been abandoned, namely absence of procedural fairness involving notions of legitimate expectation, and bad faith. His Honour observed nevertheless that Mr Bharati "…did assert that there was a summary disappointment of a legitimate expectation held by the applicant that he would be dealt with fairly, including having all the evidence considered, and knowing what he needed to establish in order to obtain a protection visa". As to the former, his Honour considered that the same was not viable as a ground for review, pointing out that procedural fairness was no longer an available ground of review, in the light of the decision of the Full Federal Court in NAAV v Minister for Immigration (2002) 193 ALR 449. In any event, having read the Appeal Book and all the material therein contained, including in particular the reasons for decision of the RRT, I am left in no doubt that the RRT did indeed deal with the appellant fairly, and considered all of the evidence which the appellant placed before the RRT. 9 Since NAAV was decided, the High Court made its landmark decision in S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. In Koulaxazov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 75 as one of the majority of a Full Court, I expressed the view, as therein set out, that in the light of the reasons for judgment in S157/2002, it would be unsafe to afford s 474 of the Migration Act 1958 (Cth) an operation upon judicial review beyond what had been determined in the reasons for judgment of the High Court in S157/2002, being a failure to comply with an imperative duty or inviolable limitation, an absence of bona fide exercise of power, an absence of relationship to the subject matter of the legislation, and decisions not reasonably capable of reference to the power given to the decision-maker. It is thus necessary to bear those circumstances in mind in considering whether the judgment of the Federal Magistrate below may be vitiated to any extent arising out of his reliance upon NAAV. I would add for completeness another member of the Full Court in Koulaxazov (Gyles J) reached a similar result for reasons which he had earlier expressed in Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 144, whilst the presiding member of that Full Court (Madgwick J) expressed the view that the Court should follow a number of other recent decisions which he identified as having reached a different view to that expressed in Lobo, and further that he should follow the latter. 10 In any event, the notice of appeal in the present proceeding set forth the following ground of appeal, in support of the orders sought by the appellant that the decisions of the Federal Magistrate and the RRT should be set aside and the matter remitted to the RRT to be dealt with according to law: "2. The Federal Magistrate Court erred in failing to hold that the decision of the RRT made on 28 June 2002 involved an error of law being an error involving an incorrect interpretation of the applicable law or incorrect interpretation of the law of the facts as found by RRT (section 476(1)(c) of the Migration Act 1958." The notice of appeal disclosed that the appellant was no longer legally represented, and contained his address for service. The appellant did not provide written submissions as directed. 11 At the hearing of the appeal, the appellant sought to rehearse in an abbreviated way the substance of what he had put before the RRT. He was no longer legally represented. He was unable to explain what was the error of law to which his notice of appeal referred, and what in particular was the "incorrect interpretation of the applicable law or incorrect interpretation of the law to the facts as found by RRT". It was plain from the dialogue that occurred, assisted as it was by an obviously able interpreter, that all that the appellant in reality sought to do was agitate the circumstances of his case presented to the Minister's delegate and subsequently to the RRT. 12 In the result, I dismissed the appeal with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti..