NAGL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 555

FEDERAL COURT OF AUSTRALIA

NAGL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 555 MIGRATION – need for reality and appearance of independence by Refugee Review Tribunal – care to be taken in some cases as to uncritical acceptance of Department of Foreign Affairs & Trade assessments NAGL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N1382 of 2002 MADGWICK J 13 MAY 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1382 of 2002

BETWEEN: NAGL

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE OF ORDER: 13 MAY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed pursuant to O 32 r 2 of the Federal Court Rules. 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 N1382 of 2002

BETWEEN: NAGL

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE: 13 MAY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 The applicant has failed to appear. The respondent asks that the matter be dismissed under O 32 r 2 of the Federal Court Rules and the applicant be ordered to pay his costs. It seems appropriate and I so order. 2 I would, however, add for the benefit of the Refugee Review Tribunal ("the Tribunal") that in cases concerning Fiji, particularly cases concerning Fijian-Indians, it may be unwise to rely upon uncorroborated material furnished by Australia's Department of Foreign Affairs and Trade ("DFAT"). I say this not to reflect upon the integrity of DFAT, or of its officers, or of the information that they provide in answer to requests made by the Tribunal. 3 The concern arises from the following considerations. First, the Tribunal has, as its reason for being, to be independent of the ordinary arms of the executive Government, notwithstanding that the decisions that it makes are themselves administrative or "executive" in character. That is particularly important, having regard to the dire consequences for many applicants, if the Tribunal decision should go against them. To say the least, it is important that the appearance of independence, as well as the substance of it, should be manifest. 4 Secondly, in the last decade or so, steps have been taken by governments in Australia to make the departments of government more "responsive" to the legitimate policies and emphases of the elected government from time to time. Among other things, a factor in this has been that security of tenure of department heads has been diminished. There are, no doubt, arguments for and against this whole process which it is no business of the Court to comment on. What I think is undeniable as a matter of public notoriety is that the process has been considerably extensive and successful. DFAT is but another department, answerable to the same elected government of which the respondent is a member. 5 In recent years, there has been an observable phenomenon of considerable growth in the unwarranted use of applications for protection visas claiming refugee status as a means of either, for the time being, regularising illegal entry to Australia or extending lawful residence in Australia beyond that authorised, or by obtaining, in some cases fraudulently, another kind of visa. In this setting, parliamentarians of all the major parties, have felt the need to take and to express a more guarded approach to applications for refugee status than in earlier times. It is very unlikely that, at least unconsciously, this emphasis would not, to some extent, colour the perceptions of DFAT officers, and that is so generally. At least a reasonable observer might possibly think so. There are, however, particular issues about Fiji. 6 Australia has significant commercial, diplomatic and other political interests in Fiji. In the Pacific, Australia is a big fish in a big, but somewhat empty pond. It is notorious that Australia has played the leading role in attempts to re-establish inter-communal respect in Fiji after the succession of racially motivated coups that have wracked that country over the last fifteen to twenty years. Australia and DFAT appear to me to have very significant and particular interests in those efforts being seen to be successful. Again, it is naive to think that these interests might not unconsciously influence the perceptions of DFAT officers reporting on Fijian matters which might be relevant to refugee applications touching on communal dissension. 7 There is no shortage of independent international assessments of the political situation in Fiji and it is well known that the Tribunal has access to an excellent library. It would tend to avoid argument if independent sources were preferred and if DFAT assessments were corroborated by such sources before reliance were placed on them by the Tribunal. 8 In neither this or other cases are these and like remarks I have made necessarily a criticism of the particular Tribunal Members concerned. I mention here concerns I have had about a number of cases concerning Fijian applicants. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.