Nace v Minister for Immigration and Multicultural Affairs

[2002] FCA 518

FEDERAL COURT OF AUSTRALIA

Nace v Minister for Immigration & Multicultural Affairs [2002] FCA 518

NACE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N1540 of 2001

WILCOX J
11 APRIL 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1540 of 2001

BETWEEN:	NACE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	11 APRIL 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the costs of the respondent.

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 1540 of 2001

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

JUDGE:	WILCOX J
DATE:	11 APRIL 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, to refuse to the applicant a protection visa. 

2. The decision of the Tribunal was given on 3 October 2001, the day after the commencement of extensive amendments to the Migration Act (1958), which, amongst other things, affected the powers of this Act in relation to review of Tribunal decisions.  It is not necessary to consider the effect of those amendments.  It seems to me that, on any basis, the application must fail.  Put simply, the applicant has not raised any question of law in relation to the Tribunal’s decision. 

3. The applicant appeared before me today without legal representation, but with the assistance of an interpreter.  He previously had had the benefit of legal advice, pursuant to the panel scheme operated by the Bar Association and the Law Society in conjunction with the Court. 

4. The applicant also attended with an interpreter at a directions hearing held on 8 February 2002 when I explained to him that the Court could not review findings of fact made by the Tribunal.  On that date I fixed the matter for hearing on 20 March 2002. 

5. However, on 19 March I vacated that hearing date at the request of the applicant.  He had forwarded to the Court a medical certificate stating he was unfit to attend the hearing due to a chest infection and bronchitis.  The certificate was lacking in specificity.  However, particularly as the respondent acceded to the application, I vacated the hearing for 20 March and stood the matter over until today. 

6. I mention this matter because the applicant made a further application for an adjournment during the course of the hearing today.  He said he was not well and that he wished to obtain legal advice.  In my view, the applicant has already had the opportunity of legal advice and I am unpersuaded he has any health problem that prevents him doing whatever is necessary to advance his case. 

7. The reality is that no question of law arises.  The applicant, through the interpreter, handed to me a document setting out a summary of arguments.  It reads as follows.

   “The Member of the RRT has refused my application stating that my claims were not credible.  However I wish to say that there was no basis to decide that they were not credible.  The Member has misjudged the following matters:

   1.Page 20 – Para 4 – The Member has said that it was not possible for me to have lived in my village under an assumed name.  However, it was the way that I lived.  This is not uncommon in Sri Lanka.  Many persons live in their own villages under assumed names.

   2.Page 20 – Para 5 – It is a myth to think that one cannot obtain a passport in his own name in Sri Lanka if you are a targeted person.  There are many officers in Sri Lanka who take bribes and obtaining a passport even though you are a wanted person is not difficult.

   3.Page 21 – Para 2 and 3 – It is also a myth that a wanted person cannot leave the country in Sri Lanka due to checks by the airport officials.  It is a fact that there is corruption at the airport.  This has led to wanted people leaving the country in their usual names or assumed names.  If you have a contact at the airport it is not relevant whether you leave in your own name or some other name.  Although out dated Danish country reports (1997) say that airport officials are not corrupted recently it has transpired that there was certain amount of corrupt activities of the airport officials which gave way to the recent large scale airport attack by the LTTE.  In my case my father’s friend helped me to leave the country after bribing the airport authorities.  There were many politically targeted persons who left Sri Lanka with the help of corrupted officials at the airport.  For instance DIG Udugampola, a notorious high police official then wanted by the UNP regime fled Sri Lanka through airport [sic] in 1992 with a passport in his own name.  The officials at the airport supported him.

   4.The Tribunal rejected my claim of working in the army for no reason.  Also it also rejected my claims relating to arranging accommodation to [sic]  Tamils and my arrest in May 1998.  However Tribunal did not give reasons for those rejections.

   Also the Tribunal did not put to me the adverse country information with regard to these rejections for my comments but blankly refused them.

   Therefore I request the Honourable Court to remit my matter to RRT to be decided according to law.”

8. Points numbered 1 to 4 inclusive are each contentions about the facts of the matter.  As I have explained to the applicant more than once, this Court has no jurisdiction to review the Tribunal’s findings of fact.  It is therefore apparent that these are not grounds of which the Court can take any cognisance. 

9. The sentence which follows item 4 potentially raises a question of law.  Although it is no doubt good practice for Tribunal members to draw attention to country information during the course of a hearing, it is not clear to me that a failure to do this would constitute a contravention of the procedural requirements of the Act.  It seems to me that subs (3) of s 424A would apply.  Even if there was such a contravention, it is at least arguable that this does not constitute a jurisdictional error entitling the Court to intervene under the legislation as it now stands. 

10. However it is not necessary to reach a conclusion about these matters.  I invited the applicant to identify the adverse country information which he claimed not to have been put to him.  It is apparent from the reasons of the Tribunal that a considerable deal of country information was put before the applicant for his comment, and indeed that he offered comment on some of it.  Ultimately, after some reference to the Tribunal’s reasons for decisions, the applicant conceded there was no country information which had not been put before him.  Consequently the factual basis for this point disappears and it is not necessary to consider the legal issues.

11. I am conscious of the fact that the applicant has not had legal assistance in the presentation of his case.  Accordingly, I have read the Tribunal’s reasons for decision with some care.  However it seems to me they raise no question of law.  The problem, from the applicant’s point of view, is that the Tribunal did not believe the critical elements in his story.  As I say, it is not for the Court to determine whether the Tribunal was right or wrong in refusing to believe him.  The Tribunal’s decision about that matter was one of fact and not subject to review.  I have no option other than to dismiss the application.  I order that the application 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 Wilcox.

Associate:

Dated:             26 April 2002

Applicant appeared in person
Counsel for the Respondent:	Ms N Abadee
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	11 April 2002