Applicant NAOG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1222

FEDERAL COURT OF AUSTRALIA

Applicant NAOG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1222

APPLICANT NAOG OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N690 OF 2002

EMMETT J
20 SEPTEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N690 OF 2002

BETWEEN:	APPLICANT NAOG OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	20 SEPTEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        the application be dismissed;

2.        the applicant pay the respondent’s costs of the proceeding. 

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	N690 OF 2002

BETWEEN:	APPLICANT NAOG OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE:	20 SEPTEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, who claims to be a citizen of India, arrived in Australia on 11 September 2000.  On 21 September 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth)(“the Migration Act”).

2. On 13 October 2000, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), refused to grant a protection visa.  On 18 October 2000, the applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision.  On 21 May 2002, the Tribunal affirmed the decision not to grant a protection visa. 

3. The applicant then applied to this Court on 11 July 2002 for review or other orders in respect of the decision of the Tribunal.  The claim for relief appears to be for an order remitting the applicant’s claim to the Tribunal for further consideration. 

4. The reasons of the Tribunal record that the applicant is a 32 year old single man from Hyderabad.  He lists his religion as Muslim and his profession as “business”.  He holds a degree in science and speaks, reads and writes English, Hindi and Urdu.  The applicant’s parents and four siblings currently live in India.

5. In claims attached to his application for a visa, the applicant said that he was an active and executive member of a Muslim community organisation (“MIM”).  At the hearing before the Tribunal, the applicant stated that his application form had been completed in conjunction with a previous adviser who had since died, but that the application form should be all right.

6. In its reasons, the Tribunal summarised the applicant’s claims in the following way:

   “The applicant claims that because he was an active member of MIM, he was targeted by Hindu extremists, who threatened to kill him and organised false charges to be brought against him.  He claimed that if he returns to India he faced arrest by the police and possible death at the hands of Hindu extremists.  In addition the applicant claims that in light of the current outbreak of violence between Hindus and Muslims it was not safe for him to return to India.”

7. The Tribunal accepted that the applicant is a Muslim who has involvement in MIM in terms of organising youth activities.  However, the Tribunal did not accept that the applicant was targeted by Hindu extremists in terms of death threats.  Nor did the Tribunal accept that the applicant had had false charges brought against him.  It considered that the applicant's involvement in MIM was not of a kind or level that would make him a specific target of Hindu extremists such that they would threaten to kill him.  The Tribunal set out its reasons for making those findings. 

8. The Tribunal considered that acts of throwing stones at the applicant’s windows did not amount to a serious threat to his life.  The Tribunal also referred to three other implausible aspects of the applicant’s claims that, considered collectively, led the Tribunal to reject the applicant’s claim that false charges had been laid against him.  Since the Tribunal rejected that claim, the Tribunal also rejected his claim that he would be imprisoned on those false charges on his return to India. 

9. The Tribunal also referred to country information that indicated that there had been long-standing tensions and sporadic outbursts of violence between Hindus and Muslims.  However, the Tribunal noted that the current violence had erupted in the province of Gujarat, whereas the applicant comes from the province of Andhra Pradesh.  The Tribunal did not accept that the applicant faced a real chance of persecution on his return to India because of the events in Gujarat.  For those reasons, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution under the terms of the United Nations Convention relating to the Status of Refugees in the event of his return to India.

10. In his written submissions to the Court, the applicant complained that the Tribunal had failed to take into consideration the religious problems of India, where Muslims have been targeted since the birth of independent India in 1947, by the mainstream Hindu community.  He also complained that the Tribunal had failed to take account of the recent communal violence between Hindus and Muslims, which was a matter of world wide concern.

11. The applicant repeated his assertions that he was subjected to discrimination by the mainstream community and that those claims were not considered by the Tribunal.  He claimed that he was deprived of natural justice by the Tribunal, and that the Tribunal breached the rules of procedural fairness by failing to give him an opportunity to comment on information on which it relied.

12. He also submitted that the Tribunal has failed to articulate material facts of his case and that the Tribunal had failed to take into consideration the current oppression by the fundamental BJP government in India, where there is no security for Muslim people.  He also submitted that the charge against him in a Civil Court in India was a subject before the Tribunal to query but that the Tribunal failed to do so.

13. The decision of the Tribunal is a “privative clause decision” within the meaning of s 474(2) of the Migration Act. That is to say, it is clearly a decision of an administrative character made under the Migration Act. As such, by the operation of s 474(1), the Tribunal’s decision is final and conclusive, must not be challenged, appealed against, reviewed, quashed or called in question in any Court, and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account.

14. The applicant submitted that s 474 is not effective to oust judicial review of such a decision where the ground for review is lack of reasonableness as to jurisdiction, failure or constructive failure of jurisdiction, and denial of natural justice in respect of jurisdiction.  He submitted that the Tribunal did not adequately care about the current situation prevailing in India plus constructively failed to take all material facts into consideration.

15. Even in the absence of s 474, it appears to me the Tribunal would have been entitled to deal with the claims in the way that it did.  Whereas it may be arguable, and I express no view about that one way or the other, that the Tribunal reached a wrong decision, the Court, on any application for judicial review, could not review the merits of the application.  That, in substance, is what the applicant asks the Court to do.

16. In any event, however, the effect of s 474 is to widen the authority and powers of the Tribunal in such a way that the lawfulness of any decision it makes is beyond question so long as its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and is reasonably capable of reference to the power given to it - see NAAV v The Minister [2002] FCA FC 228 (“NAAV”) at paragraph [26].

17. No submission has been made that the Tribunal’s decision was not a bona fide attempt to exercise its power and clearly the decision related to the subject matter of the Migration Act and is reasonably capable of reference to the power given to the Tribunal. While there is an assertion of a denial of natural justice, there is no material before the Court, in this application, to indicate that there was a denial of natural justice. Even so, s 474 would operate to widen the authority of the Tribunal so that something that would otherwise be a breach of the rules of natural justice or procedural fairness, would not give rise to a ground of review - see NAAV at paragraphs [113] to [114] and paragraph [277].

18. The applicant’s reference to natural justice, it appears to me, is no more than a contention for a different view of the facts.  The duty to base a decision on evidence, which is part of the legal requirement of procedural fairness, does not mean that any administrative decision may be quashed on judicial review, simply because the reviewing Court can be persuaded to a different view of the facts - see The Minister v Rajamanihkam 190 ALR 402 at paragraph [26]).

19. I do not consider that the Court has any jurisdiction to interfere in the decision.  In any event, I am not persuaded that there has been any error.  In my opinion, the application should be dismissed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            1 October 2002

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr S. Johnson
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	20 September 2002
Date of Judgment:	20 September 2002