NADI v Minister for Immigration and Citizenship [2007] FCA 733

FEDERAL COURT OF AUSTRALIA

NADI v Minister for Immigration and Citizenship [2007] FCA 733 Migration Act 1958 (Cth) s 424A NADI & NADJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP & REFUGEE REVIEW TRIBUNAL NSD 441 OF 2007

DOWNES J

17 MAY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 441 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: NADI & NADJ

Appellants

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: DOWNES J DATE OF ORDER: 17 MAY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS:

1. Appeal dismissed with 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 NSD 441 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: NADI & NADJ

Appellants

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: DOWNES J

DATE: 17 MAY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellants are a mother and son. They are citizens of the Philippines. They arrived in Australia in April 2000. They arrived with the first appellant's husband, who is a Bangladeshi Muslim. The husband applied for a protection visa, claiming a well-founded fear of persecution within the Refugees Convention on two grounds. First, he claimed that in Bangladesh, he and his family would be punished under Islamic law and discriminated against because the son was a pre-marital child. Secondly, in the Philippines, the family would be persecuted by the first appellant's relatives and other religious groups because of their inter-religious marriage. The first appellant is a Christian. The appellants were included in the visa application as part of the husband's family unit. The visa application was refused on 15 June 2000. 2 The husband, wife and son lodged an appeal in the Refugee Review Tribunal on 10 July 2000. There have been two Tribunal decisions affirming the decision to refuse a protection visa. The first decision was made on 16 September 2002. It was affirmed by the Federal Magistrates Court and the Federal Court of Australia. Special leave to appeal was granted by the High Court of Australia on 27 May 2005 and the matter was thereafter remitted by consent to the Tribunal for reconsideration. The second Tribunal decision was made on 8 August 2005. At that stage, the husband had returned to Bangladesh. The Tribunal therefore considered the appellants' claims regarding potential persecution in the Philippines only. The appellants appealed to the Federal Magistrates Court. Their application was dismissed on 27 February 2007. They appeal to this court against that decision. 3 The Migration Act 1958 (Cth) commits the ultimate determination of the facts in refugee cases to the Refugee Review Tribunal. That Tribunal considers the matter afresh and on its merits. It is not a court. It substitutes its decision for that of the Minister, which is usually made through his delegate. The Parliament, representing the people, has thus created two tiers of decision-making during which an applicant for a protection visa has an opportunity to put forward a case on the facts. 4 The rights of persons claiming to be refugees in Australia do not, however, stop there. For practical purposes there is a review of the decision of the Refugee Review Tribunal in the Federal Magistrates Court with an appeal to this court. The appeal is, however, confined to an error of law amounting to jurisdictional error. 5 Behind every application for a protection visa lies a factual basis. The factual basis in the present case is that the appellants claimed to fear persecution by their relatives and others who were "very religious practitioners" of the Seventh Day Adventist faith and by Christian and Muslim groups. 6 The Refugee Review Tribunal, constituted by Mr S Norman, accepted that while the appellant wife may have a subjective fear of harm, it was not satisfied on the basis of her claims or country information that persons in a mixed Christian/Muslim marriage and their children, both legitimate and illegitimate, would have a real chance of persecution in the Philippines. The Tribunal was not satisfied that the husband would not be able to secure employment or legally reside in the Philippines, enabling him to support his family. Further, it was satisfied that the appellants could safely relocate within the Philippines and it was reasonable, in all the circumstances, to expect them to do so. 7 The reality of this case is that the appellants have lost it on the facts. However, the only appeal relates to the law. Accordingly, any appeal must address the law and not the facts, except in a small class of cases where errors of law relate to the facts. This raises problems for the many appellants who are in a similar position to the present appellants. However, if there is a relevant error of law an appeal will be successful. Accordingly, I now turn to that question. 8 The notice of appeal contains three grounds. They are expanded in the appellants' written submissions. The first ground is that the Tribunal made findings on the basis of independent country information, namely, three US Department of State reports, without providing that information to the appellants and inviting them to make written comment. The appellants might raise this ground under either the common law rules of natural justice or the provisions of s 424A of the Migration Act. So far as the requirements of s 424A are concerned, country information is excluded pursuant to the provisions of para (3)(a). So far as the common law rules are concerned, I note that it appears from the decision of the Tribunal that on at least two occasions the Tribunal drew attention to the country information and put the first appellant on notice of the inferences that might be drawn from the information. It seems to me that the Tribunal sufficiently complied with the common law rules of natural justice. Accordingly, the first ground of appeal must fail. 9 The second ground is that the Tribunal failed to consider the reality of the chance of the appellants being persecuted and made its decision on the basis of assumptions. The reality is that the Tribunal did not accept the appellants' claims and in those circumstances it had no obligation to address the academic question of whether there was a real chance of persecution if the appellants returned to the Philippines. This ground is really a ground which seeks to challenge the Tribunal's findings of fact and it is not open to me to review those findings. 10 The third ground relied upon is denial of procedural fairness. Reference is made to s 424A. No particulars are given. I can see no basis for such a claim in addition to the one I have already dealt with. Accordingly, this ground must also fail. 11 In the result, the appeal fails generally and must be dismissed. The appeal will be dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes