Barakat, Naoul v Minister for Immigration & Ethnic Affairs

[1997] FCA 270

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)     No. NG 90 of 1996
)
GENERAL DIVISION	)

BETWEEN:		NAOUL BARAKAT Applicant
AND:		MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS & Anor Respondent
CORAM:	EMMETT J.
PLACE:	SYDNEY
DATED:	24 FEBRUARY 1997

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR: When this matter was called on for hearing, counsel for the respondent indicated that she was instructed to file notice of objection to competency and a document was then filed in Court.

The basis for the objection is that the original application for an order of review is headed "Order 54." Order 54 of the Federal Court Rules is concerned with applications made under the Administrative Decisions (Judicial Review) Act 1977. My attention was drawn to the decision of Beazley J in Mahfoud v Minister for Immigration, Local Government & Ethnic Affairs which is reported in 43 FCR 217.

In that case Beazley J concluded that the jurisdiction of the Court which is invoked by the filing of an application under the Administrative (Decisions Judicial) Review Act is quite independent of the jurisdiction which arises under the Migration Act. It was common ground before Beazley J that the application which was then under consideration purported to be an application brought under the provisions of the Administrative Decisions (Judicial Review) Act.

On 10 May 1996 leave was granted for an amended application to be filed in these proceedings. It appears from a note on the file of Miss Henderson's instructing solicitors that a handwritten amendment was made to the amended application by Davies J at the time when it was filed. Thus, it does appear that the jurisdictional question was adverted to at that stage. The question which I now have to decide is whether the decision of Beazley J governs this case and if it does, whether I should follow it.

In my opinion the circumstances before Beazley J are different from those which are before me.  The critical difference appears to me to be the inclusion in the original application for an order of review and the amended application of the following sentence, namely:

The applicant is taken to have received notice of the decision on 17 January 1996.

Such a statement may be relevant in an application under the Administrative Decisions (Judicial Review) Act if the application is brought out of time. However, it is common ground that if the application is to be treated as one under the Migration Act it was brought in time.

Section 476 of the Migration Act provides that application may be made for review by the Federal Court of a judicially reviewable decision as that term is defined in section 475 on any one or more of the grounds set out in section 476(1). Section 478 provides that an application under section 477 must be made in such manner as is specified in the rules of court made under the Federal Court Act and under section 478(1)(b) must be lodged with a registry of the Federal Court within 28 days of the applicant being notified of the decision.

Section 478(2) provides that the Federal Court must not make an order allowing or which has the effect of allowing an applicant to lodge an application outside the period specified in that paragraph (1)(b).  If the original application cannot be treated as an application under the Migration Act, it was not open to Davies J in May to make an order which had the effect of allowing the application to be lodged outside the 28 day period. However, the sentence in the application to which I have referred indicates fairly unequivocally an intention on the part of the applicant to comply with order 54B of the Federal Court Rules which is headed “Migration Act”.

Order 54B rule 2(2) provides that an application to review a judicially reviewable decision under the Migration Act must indicate the date that the applicant was notified of the judicially reviewable decision. The sentence to which I have referred complies with that requirement.

There is no such requirement under order 54 in relation to an application under the Administrative Decisions (Judicial Review) Act. That leads me to conclude that, notwithstanding the reference to order 54 in the original application, on its face the application in substance constitutes an application under 54B. There is nothing in the grounds specified in the application which would indicate an intention to rely on any ground outside those permitted under section 476.

In the circumstances I would dismiss the objection to competency and on that basis I will now embark on a consideration of the hearing of the application on its merits.

HIS HONOUR: Counsel for the applicant seeks to read an affidavit of the applicant sworn 4 June 1996. Objection is taken to the whole of the affidavit on the ground of relevance.

The affidavit contains assertions relating to the treatment of the applicant in Lebanon before she left that country. For example, there is a reference to the fact that the applicant's brother fled Lebanon following torture at the hands of Syrian intelligence. There is an assertion that the applicant suffered torture at the hands of Syrian intelligence. There is an allegation that the applicant's family has suffered greatly and is traumatised by the civil war and subsequent events in Lebanon. It also contains assertions of fear on the part of the applicant that, if forced to return to Lebanon, she would be detained, interrogated and tortured.

It is not the function of this Court, on the hearing of an application under section 476, to investigate those matters. By rejecting the material I should not be taken to be saying that I have any doubt at all as to the veracity of the assertions. That is not a matter for me to consider one way or another. If this is material which was not before the Tribunal there may be some explanation for that but that is not a matter which I can take into account in considering whether or not to admit this evidence.

The only ground for the review presently before the Court is that under section 476(1)(e), namely, that the decision of the Tribunal involved an error of law, being an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal. I do not consider that any of the material in the affidavit is admissible on the hearing of such an application and therefore I reject the whole of the affidavit.

HIS HONOUR: This is an application bought under Section 476(1) of the Migration Act seeking a review of a decision made by the Refugee Review Tribunal (“the Tribunal”) on 9 January 1996 which was communicated to the applicant on 17 January 1996. The decision the Tribunal affirmed a decision by a delegate of the Minister that the applicant is not a refugee and is not entitled to protection as a refugee under the Migration Act 1958.

The Tribunal varied the delegate's decision so that the decision was to have effect as a decision to refuse to grant to the applicant a protection visa under Section 36 of the Migration Act. The grounds specified in the amended application are that the decision involved an error of law that the respondent failed “to correctly interpret the definition of refugee as contained in the Migration Act 1993 Regulations” and that the applicant could be characterised as a refugee or as a single woman at risk and could not cope with the stress trauma of returning to Lebanon.

The way in which the matter was argued before me today rather limited the application to one based on the second limb of paragraph (e) that is, as I have said, that there was an error of law being an error involving an incorrect application of the law to the facts. In the course of argument, Mr Giagios indicated that the attack on the decision involved a contention that the essential foundation upon which the decision was made was unjustified as a matter of fact. He referred to the finding that information before the Tribunal indicated that the Lebanese Government has established legitimate control in Lebanon with the noted exception of South Lebanon since the end of the civil war in 1989 and that the Lebanese Government is the central authority in a country where peace has been established is therefore able to provide state protection against unlawful threats to its citizens.

Mr Giagios indicated he wished to impugn the decision on the basis that those findings should not have been made and that they would not have been made if the Tribunal had had regard to other materials besides those to which reference is made. Once I refused Mr Giagios' application to re-open and tender evidence designed to indicate what materials might have been available, Mr Giagios frankly acknowledged that his application was doomed to failure. That acknowledgment is properly given.

There is no basis upon which this Court could review the findings of fact in the manner which I was asked to do on behalf of the applicant. For whatever reasons the legislature enacted the Migration Act, it is clear that the right of review before this Court is very much limited. There is no basis upon which I could, in this application, examine the correctness of the essential foundation of the decision as identified by Mr Giagios. In those circumstances there is nothing for me to do but dismiss the application.

The orders I make are that the application is dismissed with costs.

I certify that this and the preceding five pages are a true copy of the Reasons for Judgment of his Honour Justice Emmett.

Associate:

Dated: 24 February 1997

Heard:            24 February 1997

Place:              Sydney

Decision:        24 February 1997

Appearances:   G. Giagios appeared instructed by Potts Latimer for the applicant.

R. Henderson appeared instructed by the Australian Government Solicitor for                   the respondent.