NAAB v Minister for Immigration and Multicultural Affairs

[2001] FCA 1768

FEDERAL COURT OF AUSTRALIA

NAAB v Minister for Immigration & Multicultural Affairs [2001] FCA 1768

NAAB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1395 of 2001

STONE J
11 DECEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1395 OF 2001

BETWEEN:	NAAB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	11 DECEMBER 2001
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 1395 OF 2001

BETWEEN:	NAAB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	11 DECEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, a citizen of Sri Lanka, arrived in Australia on a student visa in October 1997. He returned to Sri Lanka for short periods in November 1998 and December 1999 returning to Australia in January 2000. The applicant’s visa expired in May 2000 and his application for a protection visa under the Migration Act 1958 (Cth) (“Act”) was refused by a delegate of the respondent Minister on 1 August 2001. That decision was affirmed by the Refugee Review Tribunal (“Tribunal”) on 28 September 2001. On 4 October 2001 the applicant filed an application in this Court for a review of that decision. The grounds of review were not specified, the application merely stating that the details would be sent later.

   THE APPLICANT’S CLAIMS

2. The applicant’s claim for a protection visa arises from his alleged association with a Tamil family. The association is said to have led to the arrest of the applicant in December 1999 and to his detention and interrogation while in custody. Having been released through the intervention of his parents the applicant went to Colombo. He claimed that his family’s concern for his safety led to his father organising a student visa that secured his entry to Australia. The applicant claimed that during his visits to Sri Lanka in November 1998 and December 1999 he learned that his Tamil friend was suspected of supporting the Liberation Tigers of Tamil Eelam (“LTTE”). He claimed that during the second visit his friend was arrested.

3. The applicant was advised in a letter from the Tribunal dated 20 August 2001 that he had not provided enough evidence for a favourable finding by the Tribunal in relation to his application and was asked to attend a hearing “to give oral evidence, and present arguments” in support of his claims. The applicant did not attend either the original hearing or a rescheduled hearing, nor did he submit any further evidence.

   THE TRIBUNAL’S FINDINGS

4. It is not surprising that the Tribunal rejected the applicant’s claim for protection holding that his fear of persecution was not well founded. On the evidence available, it was not satisfied that the applicant was “at any risk of arrest, detention, or mistreatment on arrival in Sri Lanka.”  In summary the Tribunal noted that:

   ·    the applicant claimed that his fears began in 1997, but he only applied for protection in Australia when his student visa ran out and he was placed in detention in July 2001;

   ·    the independent country information did not support the applicant’s claim that he would be suspected of supporting the LTTE merely because of his friendship with a Tamil;

   ·    the applicant had been able to leave and return to Sri Lanka “on his own passport without any apparent difficulty”; and

   ·    the applicant could produce no evidence to support his claim that he had been arrested and detained for three days.

   REVIEW IN THIS COURT

5. As indicated above, the application for an order of review of the Tribunal’s decision was filed on 4 October 2001. It is therefore affected by the amendments to the Act that commenced on 1 October 2001. These amendments, which include a privative clause at s 474, would appear to impose very far-reaching restrictions on the Court’s power to review decisions of the Tribunal.

6. The applicant appeared for himself at the hearing but was not able to identify any error on the part of the Tribunal. His comments were directed to the merits of his claim. This is an issue that the Court had no jurisdiction to review even before the recent amendments. The respondent submitted that, as the applicant has not identified any error in the decision of the Tribunal, the application should be dismissed with costs. 

7. In the alternative, counsel for the respondent, in written submissions, also reviewed the law relating to privative clauses referring the Court to the analysis of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 and R v Murray; Ex parte Proctor (1949) 77 CLR 387. Counsel also referred to the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

8. While the full extent of the recent amendments is not yet clear, in my opinion, it is neither necessary nor appropriate to explore the issue in this case. The applicant has made no claim of jurisdictional error and the Tribunal’s decision does not suggest that any such error occurred. I agree with the primary submission of the respondent. The applicant not having identified any ground of review, the application should be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             11 December 2001

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr S Gageler SC with Mr S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	11 December 2001
Date of Judgment:	11 December 2001