Affairs
[2002] FCA 694
•3 JUNE 2002
FEDERAL COURT OF AUSTRALIA
NAEP v Minister for Immigration & Multicultural & Indigenous
Affairs [2002] FCA 694
MIGRATION – jurisdictional error – Refugee Review Tribunal did not believe applicant for review – on application to Court submitted that Tribunal should have appreciated that applicant had suffered brain injury and brain damage (as he in fact had) and that this had caused him to give evidence in a “rambling” manner (as the Tribunal said he had) – submission that in various ways this gave rise to entitlement to relief – application failing on the facts
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) s 474
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598
Craig v State of South Australia (1995) 184 CLR 163NAEP v MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRSN 215 OF 2002
LINDGREN J
3 JUNE 2002
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 215 OF 2002
BETWEEN:
NAEP
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
LINDGREN J
DATE OF ORDER:
3 JUNE 2002
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application be dismissed.
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
N 215 OF 2002
BETWEEN:
NAEP
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
LINDGREN J
DATE:
3 JUNE 2002
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
By his amended application, which was filed in Court with leave on the hearing, the applicant seeks to invoke the jurisdiction of the Court under s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”). By that decision the Tribunal affirmed a decision of a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs (“the Delegate” and “the Minister” respectively) refusing to grant the applicant a protection visa. The applicant seeks a declaration that the Tribunal’s decision was made in excess of jurisdiction and is null and void, an order setting aside the decision and an order prohibiting the Minister from taking any action in respect of the enforcement of the decision.
The Tribunal’s decision was dated 25 January 2002 and was handed down on 19 February 2002. Accordingly, the Migration Act 1958 (Cth) (“the Act”) as amended by Schedule 1 to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (“the Amendment Act”) (which Schedule commenced on 2 October 2001) applies in respect of judicial review of the Tribunal’s decision: see s 3 of the Amendment Act, Schedule 1 Pt 2, subcl 8(2)(a). The Tribunal’s decision was a “privative clause decision” as defined in subs 474(2) in Division 1 of the new Pt 8 of the Act.
Subsection 474(1) of the Act provides as follows:
“A privative clause decision:
(a) is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”
Division 2 of Pt 8 contains further provisions relating to privative clause decisions. Section 475 provides that Division 2 is not to be taken to limit the scope or operation of s 474. Subsection 476(1) provides, relevantly, that despite any other law, including s 39B of the Judiciary Act, the Federal Court does not have jurisdiction in relation to a “primary decision”. A “primary decision” is, inter alia, a privative clause decision that is reviewable or has been reviewed under Pt 7 of the Act. The decision of the Delegate in the present case was therefore a primary decision, but the decision of the Tribunal was not. Section 475A, also within Division 2, provides that s 476 does not affect the jurisdiction of the Federal Court under s 39B of the Judiciary Act in relation to a privative clause decision that is, relevantly, a decision made on a review by a Tribunal under Pt 7. The Tribunal’s decision was such a decision.
The interrelationship between ss 474, 475, 475A and 476 has now been discussed in several cases but I am able to dispose of the present application without examining that question. This is because the applicant’s case clearly fails on its facts.
THE AMENDED APPLICATION
The present case is an unusual one. The nature of the application for judicial review changed dramatically two days before the hearing when the applicant’s submissions and the proposed amended application were provided. Until then, the applicant was unrepresented and the grounds of his application were that the Tribunal erred by misunderstanding his explanations and believing in a wrong translation (this description of the grounds is faithful to the application which was filed to commence the proceeding). Neither of those grounds was particularised and that remained the position, and no written submissions were served by the applicant or on his behalf, down to the time when the respondent served his outline of submissions on 22 May 2002. On the same day, the applicant (through counsel) served his outline of submissions and form of the proposed amended application. The new grounds of review are as follows:
“1.The Tribunal acted in excess of jurisdiction, or otherwise committed a jurisdictional error, in affirming the decision of the respondent to refuse to grant the applicant a protection visa in:
(a)asking itself the wrong question, or addressing the wrong issue, in failing to take into account the brain injury suffered by the applicant in assessing whether the applicant faces discrimination in Jordan by reason of his Palestinian ancestry significant enough to amount to persecution under the Convention;
(b)failing to ask itself the correct question, or in failing to address the correct issue, whether the applicant, as a Palestinian in Jordan with a brain injury, is a member of a social group who faces discrimination significant enough to amount to persecution under the Convention;
(c)failing to take into consideration the brain injury suffered by the applicant in assessing his credibility;
(d)failing to accord the applicant procedural fairness in circumstances where the applicant has suffered a brain injury;
(e)failing to make any, or any adequate inquiry, of the head injury, occasioning brain damage, suffered by the applicant on 15 July 2001;
(f)failing to require the Secretary to arrange a medical examination of the applicant to investigate the nature and extent of his brain injury, suffered as a consequence of an assault on 15 May 2001, in accordance with s 427(1)(d) of the Migration Act 1958 (Cth) (as amended).
2.The Tribunal acted in excess of jurisdiction in having regard to an incorrect translation of certificate of completing military service.”
As can be seen, all the subparagraphs of para (1) are referable to “brain injury” or “brain damage” suffered by the applicant on 15 July 2001. On the hearing, the applicant sought to adduce evidence of his brain injury and brain damage in the form of medical certificates. After discussion, the parties agreed that the hearing should proceed on the basis that it was common ground that as at the time of the hearing before the Tribunal:
“(a)the applicant suffered [on 15 July 2001] a depressed and comminuted right parieto-occipital skull fracture ...;
(b)the fracture had lacerated the dura of the skull, as well as the underlying brain ...;
(c)the applicant ha[d] complained of symptoms including dizziness, mild ataxia, headaches, twitching around the lips and [was] at significant risk of future epilepsy;
(d)a CT scan performed by 13 December 2001 indicated underlying post-traumatic encephalomalacia (ie. visible damage to the underlying brain); and
(e)the applicant ... ha[d] suffered permanent impairment ... .”
I proceed accordingly.
COURSE OF EVENTS
Against the above background, I will now review the course of events in chronological order.
The applicant was born on 11 September 1967 in Jordan and is apparently of Palestinian descent. According to a statement by the applicant dated 14 May 2000 provided by his migration consultant, Mr Victor S Lamba, in support of his application for a protection visa, he was born in a refugee camp for Palestinians known as Mukhaim al Wahidat near Amman, and his father was an active member of the Palestinian leadership in Mukhaim al Wahidat.
The applicant claimed to have completed his school education in 1985 and passed his examinations with very good marks. He claimed that he wanted to become a pilot, but, being a Palestinian, could not secure admission into the Royal Academy of Aeronautical Studies in Jordan, even though some Jordanian students, who had not performed as well as he had, were admitted.
According to his statement of 14 May 2000, the applicant decided to study in Romania and, to that end, studied the Romanian language for a year then attended a university in Romania where he completed his first year of electrical engineering. Importantly, the applicant claimed that during his first year in Romania he joined the “Jabbah Party (People’s Front)”. In its reasons for decision, the Tribunal noted that this was the Popular Front for the Liberation of Palestine (“PFLP”) led by George Habash. The applicant described the Jabbah Party as being “in competition to Alfateh Party which was headed by Yasser Arafat”.
In 1987 the applicant had to return to Jordan to perform compulsory national military service. A certificate from the General Command of Jordanian Armed Forces which was in evidence before the Tribunal showed that the applicant joined the service of the Jordanian Armed Forces on 21 December 1987. The applicant complained over his treatment while performing his compulsory military service. In particular, he complained that he should have been transferred to the Air Force. He claimed that he had been put in prison several times (amounting to one year in total) and had been “persecuted”.
The certificate which I mentioned shows that the applicant was discharged on 8 October 1988, recalled on 15 March 1989 and discharged on 18 November 1990 and later “[f]inally released from Reserve Service on 18/11/95 for completing the prescribed Reserve period”. According to his statement of 14 May 2000, the applicant returned to Romania in 1991 and “started working with the magazine called Al Hadaff” which had views opposed to the main PLO faction led by Yasser Arafat. At the hearing, the applicant told the Tribunal that the magazine was the PFLP’s magazine. In the statement, the applicant said that the magazine “exposed” alleged murders initiated by Mr Arafat. He said that, while working with the magazine, he was contacted by an official of the PLO Embassy in Romania and asked to “leave Al Hadaff” and join Fatah, but he refused. He claimed that, due to his allegiance to the PFLP, Fatah turned against him and that, due to his “activities .... against Alfateh ... [he] was blacklisted by the Palestinian Authority”. He claimed this “information was passed on to the Jordanian Authorities who were also against [the People’s Front]”.
According to his statement of 14 May 2000, in 1996 the applicant returned to Jordan and “landed in Amman and was arrested”. He said he was detained for twenty-one days and interrogated during that time by the Jordanian Intelligence Service (“Intelligence”), then released. He said he applied for several government and semi-government jobs but did not succeed because he had not been able to obtain police clearance. In June 1996, however, he obtained a job at a hotel. According to his statement, at the end of 1996 his employers sent his papers to Intelligence in order to obtain a security clearance, but Intelligence called him in and interrogated him and told him that on the basis that he had been living in Romania, he was working for the Romanian Government. He was refused security clearance and sacked from his hotel job.
On 31 July 1997 the applicant arrived in Australia on a year-long visitor’s visa.
On 3 May 2000 the applicant lodged an application for a protection visa, and, as noted above, his statement of 14 May 2000 was furnished by his Migration Consultant, Mr Lamba, in support of his application.
The Delegate refused the application for a visa on 24 May 2000 (the date of the “decision record”). On 26 June 2000 the applicant lodged with the Tribunal his application for review of the Delegate’s decision. There was a hearing before the Tribunal on 10 January 2002. Later, on 14 January 2002, the applicant replied in writing to certain questions which had been raised by the Tribunal. As noted earlier, the Tribunal’s decision was dated 25 January 2002 and handed down on 19 February 2002.
THE PROCEEDING BEFORE THE TRIBUNAL
The Tribunal noted that at the hearing the applicant changed his claims significantly. At the hearing he said he had never joined any political organisation, including the PFLP, and had never worked for the PFLP magazine except for one occasion in 1986 when he wrote an “opinion” article criticising the divided nature of the Palestinian Liberation Organisation (“PLO”). He said that the written statement dated 14 May 2000 prepared by his former adviser was incorrect and should not have made such claims.
Before the Tribunal the applicant made a new claim which he presented as the true reason why he left Jordan for Australia. This arose from an event in Romania in 1993. He claimed that he had been running a sizeable import/export business in that country and had helped to present evidence linking a Jordanian man in that country to a robbery. He claimed that the accused man’s father had tried, unsuccessfully, to make him retract his evidence, and had used his connections in Intelligence to move against the applicant when the applicant returned to Jordan in 1996. The applicant claimed that while he had been working in a hotel in Jordan in that year and needed to obtain security clearance in order to continue in that employment, in 1997, the father had caused Intelligence to refuse him the security clearance on the basis that, because he had worked in Romania for some years, he was in fact an agent working secretly for the Romanian Government. The applicant claimed that this incident had resulted in the applicant’s being dismissed from the hotel and that now caused him to fear persecution in Jordan. Indeed, he claimed to have heard since his arrival in Australia, that the father had telephoned his home in Jordan twice, looking for him.
The Tribunal questioned the applicant about his former and present claims. According to the Tribunal:
“The applicant went on at almost unstoppable length about the expenses charged by the two migration agents he had used (Mr Lamba and, more recently, Mr Omar Mousa), and the readiness of some agents to write misleading statements of claims.”
The applicant maintained his claim to have experienced discrimination over his Palestinian background. The applicant presented a document and English translation showing his army service and asserted that this showed that he had been in jail. The applicant explained that the document which he produced, in referring to “discharge”, was using a form of Jordanian army reference to “jail while in the army”. The Tribunal’s reasons for decision continued:
“The Tribunal said that this was unlikely and that it did not feel that the certificate substantiated the applicant’s claim of having been jailed. The applicant did not pursue the certificate issue.”
The applicant was asked why he had suffered a punishment so severe as a year’s detention in total, merely for having asked repeatedly to be allowed to join the Air Force. According to the Tribunal, the appellant evaded the question and spent some time insisting that Palestinians were harassed and bullied in the Jordanian army.
On the present hearing, the applicant contends that the following passage from the Tribunal’s reasons for decision is relevant to his claim of brain injury and damage:
“The applicant was asked why he had waited so long (from July 1997 to May 2000) to apply for protection if he had come to Australia in search of protection. He said ramblingly that his visitor’s visa had been valid for one year, that he had cut his hand three months before the visa’s expiry, that his solicitor then had told him that the visa would be renewed, that he had waited afterwards because he had thought matters in Jordan would improve and allow him to return, that he had all the while had some thought of getting married and thereby obtaining residence here, that in the end he had decided that he would not embark on a marriage of convenience, that he had then injured his head, and with all these things time had passed and he had not applied for a protection visa until May 2000. He had then heard that the father of the Jordanian man who had carried out the robbery in Romania had telephoned his home twice and this had made him decide to apply for protection in Australia.
Country information on the situation of Palestinians in Jordan was discussed with the applicant.
It is worthwhile stating that the applicant generally chose not to use the interpreter assigned to the hearing despite being urged to do so, and spoke in English. The applicant used a very rambling and disjointed style of giving evidence which had the effect of allowing him to be evasive about [sic – without] directly answering questions put to him. The Tribunal took care to elicit all his claims and to paraphrase many of his responses back to him to make sure that it understood what he was trying to say in his lengthy responses where his imperfect command of English sometimes made it difficult to immediately grasp his meaning.” (my emphasis)
In the “Findings and Reasons” section of its reasons for decision, the Tribunal said that it was not satisfied that the applicant was a witness of truth. It gave detailed reasons. They related to implausible aspects of the applicant’s claims. The Tribunal considered that the applicant knew what was in his statement of 14 May 2000 sent by his then migration consultant, Mr Lamba, to the Department of Immigration & Multicultural Affairs (“the Department”), and “knowingly presented a fabricated set of claims involving political links with PLO groups”. In support, the Tribunal stated that at the hearing the applicant:
“displayed the behaviour of a person who prides himself in being in control of situations, of taking care to ask important questions, and of being confident in his ability to communicate in English.”
The Tribunal was also not satisfied that there was credibility in the applicant’s new claim of having had to leave Jordan in consequence of a “private grudge dating from 1993”.
The Tribunal was of the view that the applicant had planned a trip to Australia for non-Convention linked reasons and that, after receiving the visitor’s visa in July 1997, he resigned from his job that month and travelled to Australia.
The Tribunal thought that the applicant’s long delay in applying for a protection visa, also did not indicate that he had come to Australia to seek protection from persecution. The Tribunal stated that:
“the applicant does not present as a person who is vague or ignorant, and his career as a successful entrepreneur in Romania does not suggest this either.”
The Tribunal continued as follows:
“On his own evidence, he was in receipt of legal advice on visa matters within the term of his year-long 1997 visitor’s visa. In view of all of this, I am therefore not satisfied that he would not have applied for protection soon after coming here rather than waiting until May 2000 to do so. His explanations for the delay … do not change this view. All they do is reinforce the view that the applicant came to Australia simply to reside here temporarily or permanently, and that he had considered several ways of doing so before opting for a protection visa application when those other means failed. I do not consider that a person genuinely in need of protection would have waited as long as he did to seek it, particularly as having obtained one he would have still had the option of returning to Jordan afterwards if matters ‘improved’.”
Finally, the Tribunal considered the applicant’s general claim that he faced persecution in Jordan over his Palestinian descent. The Tribunal concluded, on the basis of country information and aspects of the applicant’s account which it did not find credible, that it was not satisfied that the applicant faced discrimination significant enough to amount to persecution in Jordan over his Palestinian ancestry.
MY REASONING ON THE PRESENT APPLICATION
In my opinion, for several reasons the first ground of the amended application is not made out. In stating my reasons I do not imply that if the shortcomings to which I refer had not existed that ground would necessarily have been made out.
It is not suggested that the Tribunal did not have before it a valid application for review of the Delegate’s decision which it had jurisdiction to review (cf subs 414(1) of the Act) or that it did not have power to affirm that decision (cf subs 415(2)(a) of the Act).
I do not accept that the Tribunal was on notice that the applicant was or might have been suffering from a disability. Certainly the passing reference in the “Claims and Evidence” section of the Tribunal’s reasons for decision to his having injured his head was not enough to raise that possibility for its attention. The injury to his head was mentioned by the applicant as one of a series of factors (another one was that he had cut his hand) which he said explained why he had waited from July 1997 to May 2000 to apply for a protection visa (see [23] above).
I do not think that the Tribunal’s use of the words “ramblingly” nor its reference to the applicant’s “very rambling and disjointed style of giving evidence which had the effect of allowing him to be evasive about directly answering questions put to him” indicate that the Tribunal was or should have been on notice of a potential problem (see [23] above). Nor do I think his style of giving evidence coupled with his passing reference to his having suffered a head injury did so or should have done so.
The medical evidence does not establish or suggest a potential link between the applicant’s brain injury and brain damage on the one hand and his manner of giving evidence before the Tribunal on 10 January 2002 on the other. As counsel for the applicant fairly accepted, he was not in a position to establish that the applicant was suffering from any “neurological deficit”. Indeed, in the “Findings and Reasons” section of its reasons for decision, the Tribunal did not refer to the applicant’s manner of giving evidence, although it did, in that section of its reasons, as noted earlier, make positive findings that the applicant was a person who prided himself in being in control of situations, of taking care to ask important questions and of being confident in his ability to communicate in English (see [24] above), and that he did not present as a person who was vague or ignorant (see [27] above).
The Tribunal’s reasons for rejecting the applicant’s claims depended squarely on its analysis of his claims themselves. Accordingly, even if the applicant’s brain injury and brain damage did affect the manner in which he gave evidence, that consideration was irrelevant to the Tribunal’s response to his claims and its rejection of them. There has been no suggestion put to me that, but for his brain injury and brain damage, the applicant’s claims themselves would have been different.
For the above reasons:
· the obligation cast on the Tribunal by s 424A of the Act was not enlivened;
· there was no reason why the Tribunal should have exercised its discretionary power under s 427(1)(d) of the Act to require the Secretary to the Department to arrange for the making of a medical examination of the applicant and to give the Tribunal’s report on that examination;
· there was no reason why the Tribunal was required to treat the applicant as making a claim to have a well-founded fear of persecution by reason of his membership of a particular social group, namely, brain-injured persons of Palestinian descent in Jordan; and
· none of the other grounds relied on (set out in [6] above) are made out.
I hold that contrary to the applicant’s submission, the Tribunal did not act in excess of jurisdiction or otherwise commit jurisdictional error. In particular, the Tribunal did not identify the wrong issue, ask itself the wrong question or ignore relevant material; cf Craig v State of South Australia (1995) 184 CLR 163 at 179 per Brennan, Deane and Toohey JJ. And further, in particular, there is nothing to suggest that any of the so-called “Hickman conditions” were not satisfied: the Tribunal’s decision was a bona fide attempt to exercise its power, the decision related to the subject matter of the Act and the decision was reasonably capable of reference to the power given to the decision-maker (R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 at 616).
I turn now to the second ground in the amended notice of appeal. There was in evidence before the Tribunal a certificate dated 25 March 1996 issued by the General Command of Jordanian Armed Forces and an English translation of it dated 7 January 2002. On the hearing before me there was admitted into evidence an alternative translation of the same certificate dated 19 April 2002. There are differences between the two translations. The one before the Tribunal was as follows:
“Hashemite Kingdom of Jordan
General Command of Jordanian Armed Forces
AmmanDate: 25 March 1996
To whom it may concern
No 317/961.The General Command of Jordanian Armed Forces states that the released Army Infantry Recruit No 829072 Reda Ali Mohammed joined the service of Jordanian Armed Forces on 21/12/1987.
2.Discharge and Final Release
Discharged to Reserve on 8/10/1988
Recalled from Reserve on 15/3/1989
Discharged to Reserve on 18/11/1990 for completing the prescribed Recruit period.
Finally released from Reserve Service on 18/11/1995 for completing the prescribed Reserve period.
This statement was issued on his request.
Joint Chief of Staff
(Signed and stamped)
Colonel Saff Ali Fahim AL Habashne” (my emphasis)
The differences between this translation and the one admitted into evidence on the hearing before me are that the words “to Reserve”, “from Reserve”, “to Reserve” and “Recruit” were omitted from the latter (the words “from Reserve” where they appear the second time, do appear in both translations).
There are two other differences between the two translations. First, in the one admitted into evidence before me the words “from Jenin has” appeared between the words “Mohammed” and “joined” in the paragraph numbered “1”. Secondly, in the same translation, the following material, which was not contained in the translation in evidence before the Tribunal, appears below the signature of the typed material “Colonel Saff Ali Fahim AL Habashne”:
“Remark:
He was given this certificate instead of ‘Certificate of Completing Military Service’ because of interruptions in his Service.”In my opinion, there is no substance in the second ground of appeal. In the first place, it was the applicant himself who tendered before the Tribunal the translation which he now submits I should treat as being deficient. Secondly, neither the reasons of the Tribunal nor the applicant’s submissions on the hearing before me suggest that the deficiencies played or might have played any part in the Tribunal’s reaching its decision adverse to the applicant (the only relevant submission by the applicant was that “the Tribunal erred in taking into account an incorrect translation of the applicant’s army certificate”). Thirdly, there is no evidence before me establishing that the translation in evidence before the Tribunal was incorrect, and the one before me correct.
CONCLUSION
For the above reasons, the application will be dismissed with costs.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate:
Dated: 31 May 2002
Counsel for the Applicant: Mr A S McInerney Counsel for the Respondent: Mr J D Smith Solicitor for the Respondent: Sparke Helmore Date of Hearing: 24 May 2002 Date of Judgment: 3 June 2002
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