Hung The Ngu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 845

FEDERAL COURT OF AUSTRALIA

Hung The Ngu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 845 Administrative Appeals Tribunal Act 1975 (Cth) s 39 Judiciary Act 1906 (Cth) s 39B Migration Act 1958 (Cth) s 474, 477, 477(1), 477(2)

Vo Tuan Kiet v Minister for Immigration & Multicultural Affairs [1998] FCA 706 cited Van Cuong Nguyen v Minister for Immigration & Multicultural Affairs (No 2) (2000) 115 A Crim R 324 cited HUNG THE NGU v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS W483 of 2001 RD NICHOLSON J 24 JULY 2003 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W483 OF 2001

BETWEEN: HUNG THE NGU

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE OF ORDER: 24 JULY 2003

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The respondent's notice of objection to competency be upheld. 2. The application be dismissed. 3. The applicant pay the respondent's costs of the application and the notice of objection to competency. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W483 OF 2001

BETWEEN: HUNG THE NGU

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE: 24 JULY 2003

PLACE: PERTH

REASONS FOR JUDGMENT 1 This matter is remitted to the Court from the Full Court on the question of the respondent's objection to competency, specifically the Full Court held that the applicant should have the opportunity of making a case before the primary judge of whether there had been a lack of procedural fairness in the hearing before him giving rise to a jurisdictional ground of review. The Full Court was unable to conclude that the applicant had no prospect of succeeding on such a ground and therefore adopted that course. 2 In the reasons delivered on 13 August 2002 I set out the background circumstances relating to the applicant and other matters relevant to a consideration of the objection to competency. I rely on that statement, save that in par 8 in the second line the reference to a letter sent to him dated 21 June 2000 should read 'a letter sent by him dated 21 June 2000'. 3 The applicant has been assisted by a law student acting as McKenzie Friend who has helpfully compiled an outline of submissions stating what the applicant wanted to bring to the attention of the Court in relation to the fairness of the hearing before him. There are 11 stated grounds in that outline. The first referred to documents which he has from his fiancée's family, the Vietnamese community and others, in relation to the issue of whether he poses a danger to the community. I have ruled in the course of this hearing that those documents are not relevant to the exercise of jurisdiction which the Court is now required to carry out. 4 The second ground alleged that the applicant should be afforded time to raise some money for his fiancée and parents and to see them. That raises the possibility of the applicant being freed from detention, and I have indicated that I will deal with that as a separate matter subsequently to the delivery of these reasons so far as I can deal with it at all today. 5 Thirdly, in the outline it was stated that at the hearing no one assisted the applicant with his defence and the only person who aided him was a friend who acted as an interpreter. I have received detailed and helpful submissions on that from the respondent and I accept the correctness of those submissions. The applicant's submission is not factually correct, as reference to the appeal book discloses. At the hearing before the Tribunal, the applicant was represented by a friend, and was assisted by several different official interpreters who were employed to translate between the English, Vietnamese and Cantonese languages. It was stated in the reasons of the Tribunal, and not disputed, that the applicant who could follow simple English requested that the proceedings be translated into Cantonese language, and this was done. There also were independent interpreter services provided from the friend who was assisting the applicant. 6 Furthermore, as reference to the reasons of the Tribunal bears out, the friend made extensive submissions to the Tribunal, both generally and in relation to the application of the ministerial general direction number 9. There is, therefore, no factual foundation from which to conclude that the absence of representation for the applicant, in the way he contended in par 3 of his outline of submissions, gave rise to any jurisdictional error. Furthermore, as a matter of law there is authority to the effect that the absence of such representation cannot give rise to that position. I refer to Vo Tuan Kiet v Minister for Immigration & Multicultural Affairs [1998] FCA 706 and Van Cuong Nguyen v Minister for Immigration & Multicultural Affairs (No 2) (2000) 115 A Crim R 324 at [6]-[7]. Furthermore, there was no factual foundation to find any breach of the requirements of s 39 of the Administrative Appeals Tribunal Act 1975 (Cth). 7 The fourth ground raised in the applicant's outline repeated to some degree that his friend had acted as an interpreter, a matter I have found is not borne out. To that was added a claim that the friend was subjected to a number of questions which the applicant did not like. That, however, does not give rise to any jurisdictional error. The fact that the applicant could not speak or write English gives no rise to jurisdictional error, the extensive scope of interpreter services provided to him have already been referred to. It was also said in par 4 that there were repeated questions to the applicant about his past offences. That, however, was something which his case gave rise to and no unfairness and jurisdictional error could possibly arise from repetition of questions directed to a relevant issue, provided no harassment was involved, and there is no evidence of that. 8 The fifth paragraph in the applicant's outline of submissions draws the Court's attention to the fact that his mother was sitting at the back of the court and was not understanding, he says, what was going on. No jurisdictional error arises from that. 9 Paragraphs 6 to 11 raise matters addressing the merits of the applicant's case, namely the situation of his parents; particularly the illness of his father, the position concerning his fiancée and what would happen to them if they were returned to Vietnam. Those are matters that are not relevant before this Court. The Court is reviewing the decision of the Tribunal. It is apparent from reference to the reasons of the Tribunal that all of these matters were taken into account. The Tribunal recognised it had a discretion and it listed and considered all of the factors relevant to that discretion, including the issues raised in these paragraphs so far as they then existed. There is therefore no case for finding jurisdictional error as a consequence of pars 6 to 11 of the applicant's outline. 10 The consequence of that conclusion is that the decision made by the Tribunal is a privative clause decision under s 474 of the Migration Act 1958 (Cth) ('the Act'). Consequently, the time limit under s 477 of the Act applied. The application before the Court is therefore incompetent. Pursuant to s 477(2) of the Act the Court cannot allow the applicant to lodge an application outside the time limit specified in s 477(1). I therefore uphold the objection to competency and consider that the application should be dismissed. 11 I add that, in any event, for the application to have succeeded under s 39B of the Judiciary Act 1906 (Cth) the applicant would have needed to establish jurisdictional error. No case for jurisdictional error has been made out. Even if the application had been open for consideration and the notice of objection to competency had not succeeded, the application would have been required to be dismissed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.