NACL v Refugee Review Tribunal - [2002] FCA 643

FEDERAL COURT OF AUSTRALIA
NACL v Refugee Review Tribunal [2002] FCA 643
IMMIGRATION – application by Palestinian Muslim against decision of Refugee Review Tribunal refusing protection visa – applicant claimed entitlement to visa on grounds of fear of persecution in native Syria on account of association with various Palestinian Muslim political organisations – applicant claimed Tribunal decision reviewable because affected by actual bias and in breach of requirements of s 424A of Migration Act 1958 (Cth) – whether decision of Tribunal is vitiated on either basis – whether decision reviewable under privative clause – whether Tribunal correctly named as party to the proceedings.
Migration Act 1958 (Cth) ss 424A, 474, 476(1)(f), 479
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Schedule 1, Clause 8(2)
R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 referred to
Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 applied
Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 referred to
Briglia v Federal Commissioner of Taxation (2000) ATC 4247 referred to
Kordan Pty Ltd v Federal Commissioner of Taxation (2000) ATC 4812 referred to
Daihatsu Australia Pty Ltd v Federal Commissioner of Taxation (2001) ATC 4268 referred to
Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 referred to
Thairasa v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 281 applied
Bitani v Minister for Immigration and Multicultural Affairs [2001] FCA 631 applied
NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 approved
Park v Minister for Immigration and Multicultural Affairs [2002] FCA 346 approved
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 approved
NAAA v Minister for Immigration and Multicultural Affairs [2002] FCA 362 followed
NACL v REFUGEE REVIEW TRIBUNAL & MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 123 OF 2002
CONTI J
3 MAY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 123 OF 2002

BETWEEN:

NACL
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTS

JUDGE:

CONTI J

DATE OF ORDER:

3 MAY 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.          The application for review be dismissed.
2.          The Applicant pay the Respondents’ costs of the proceedings.
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 123 OF 2002

BETWEEN:

NACL
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTS

JUDGE:

CONTI J

DATE:

3 MAY 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT
Background

The present application is for review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 January 2002, whereby the earlier decision of the Minister’s delegate made on 16 May 2001 to refuse to grant the Applicant a Protection (Class XA) Visa was affirmed. By virtue of the application for review having been filed on 20…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] FCA 643
Decision Date: 3 MAY 2002

CaseChat Overview and Summary

In the case of NACL v Refugee Review Tribunal, the Applicant, an individual who had applied for a protection visa in Australia, sought judicial review of a decision by the Refugee Review Tribunal (the Tribunal) to dismiss his application. The Applicant alleged that the Tribunal had acted in a biased manner and failed to properly consider his evidence. The matter was heard in the Federal Court of Australia, which was tasked with determining whether the Tribunal had made an error in law or procedure that warranted overturning its decision.

The primary legal issues before the court were whether the Tribunal had acted with actual bias and whether it had failed to properly consider the Applicant's evidence and country information. The Applicant argued that the Tribunal's decision to adjourn the hearing due to his psychological state, and its subsequent acceptance of a psychiatric report indicating his fitness to attend the hearing, demonstrated bias. Additionally, the Applicant contended that the Tribunal had not adequately considered his claims regarding the Syrian government's motives for offering a voluntary return to Syria.

The court examined the conduct of the Tribunal and found no evidence of actual bias. The Tribunal's decision to adjourn the hearing was based on legitimate concerns about the Applicant's psychological state, and its subsequent acceptance of the psychiatric report was consistent with proper procedural fairness. The court also found that the Tribunal had properly considered the Applicant's evidence and country information, including his assertions regarding the Syrian government's motives. The Tribunal's decision to dismiss the application was based on a reasonable and logical application of the relevant statutory provisions and was supported by the evidence.

Consequently, the Federal Court dismissed the Applicant's appeal and upheld the Tribunal's decision. The court also ordered that the Applicant pay the Respondents' costs of the proceedings. This decision underscores the importance of procedural fairness and the proper consideration of evidence in refugee review proceedings, while also affirming the Tribunal's discretion in managing such cases.

Orders

Orders of the court

1. The application for review be dismissed.

2. The Applicant pay the Respondents’ costs of the proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CONTI J

Because of the way that the Applicant’s claim was framed before me (that is, insofar actual bias has been alleged on the part of the Tribunal), it is next appropriate to recount the events leading up to the Tribunal’s decision on 23 January 2002:(a)On 17 September 2000, the Applicant was interviewed by an officer of the Minister’s department. Subsequently, on 8 March 2001, the Applicant lodged an application for a protection visa with the Minister’s department, which as stated above was refused by a delegate of the Minister on 16 May 2001.(b)On 21 May 2001, the Applicant lodged an application for review with the Tribunal, and thereafter on 6 July 2001, the Applicant was invited to attend a hearing by the Tribunal, to be heard on 27 July 2001. On 17 July 2001, the Applicant accepted the invitation to attend the hearing.(c)On 24 July 2001, the Applicant sought an adjournment of the review hearing set down for 27 July 2001, citing personal psychological problems as the reason, which request was acceded to by the Tribunal. (d)As a result of the concern over the psychological state of the Applicant referred to in (c) above, the Tribunal commenced on 27 July 2001 to put in train a procedure whereby the Applicant could be psychologically assessed. As part of that procedure, the Tribunal obtained on 22 October 2001 a report from Dr Pulella, a consultant forensic psychiatrist. This report was compiled by Dr Pulella subsequent to an interview he conducted with the Applicant on 18 September 2001. At that time the Applicant was detained at Hakea Prison Complex in Western Australia. This report concluded that the Applicant suffered from depressive moods consistent with his life circumstances and present living situation in detention, but that he presented no evidence of actual psychiatric disorder. It further recorded the belief of Dr Pulella that the Applicant was fit to attend a Tribunal hearing, provided an Arabic interpreter was present.(e)As a result of this positive feedback regarding the Applicant’s condition, as evidenced by Dr Pulella’s report, the Applicant was invited on 27 November 2001 to attend a hearing of the Tribunal on 7 December 2001, an invitation which was accepted two days later.(f)Earlier on 30 July 2001, the Applicant had informed the Tribunal that an ABC televised programme had shown him engaged in a Port Headland demonstration, which programme had been picked up by the Al Jaseera TV station, which was well known in the Arab world; he asserted to the Tribunal that the secret service of Syria consequentially knew of his whereabouts; a further letter from the Applicant to the Tribunal on 18 September 2001 stated that his brother and cousin had been arrested by the Syrian intelligence and their house had been searched, and all of the Applicant’s papers and books had been taken, including letters from Jewish friends in the “Rakah’s Movement for Peace”; hence he contended that the Syrian authorities had now imputed to him the role of a supporter of Israel.(g)On 13 December 2001, the Tribunal wrote to the Applicant and informed him of certain information which it suggested might be the reason or part of the reason for affirming the decision to refuse the protection visa, and gave him an opportunity to comment upon the same. So much may be observed to have been conduct prima facie consistent with its statutory obligation under s 424A of the Act. The information was to the effect that the Australian Department of Foreign Affairs and Trade (“DFAT”) had mutually agreed on a regime for the voluntary return to Syria of people in the Applicant’s position, that is to say, people with an association with the PLO. The Tribunal’s letter also referred to a journal article which “indicates Rakah… is the single largest party in the Arab sector of Israel” and that “[a] delegation of Rakah had been invited to visit Syria in 1997 and even progressive Jews had been approved to attend”. In response to that letter, the Applicant wrote on 18 December 2001 to the Tribunal, stating that he rejected the Syrian government’s motives for offering the invitation for the return of Syrians like himself, saying “the aim of such action is to deceive and despises (sic) the true intention of the government of Syria”.(h)By letter of 12 January 2002, the Applicant informed the Tribunal to the effect that he would forward to the Tribunal further country information in support of his application. The Tribunal agreed to this request by letter of 16 January 2002, and additional information (being over 50 pages in length) was provided to the Tribunal by the Applicant on 21 January 2002.The Decision of the Tribunal below

Ratio Decidendi

Legal Principle Established

Established by: CONTI J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 123 OF 2002

BETWEEN:	NACL APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENTS
JUDGE:	CONTI J
DATE OF ORDER:	3 MAY 2002
WHERE MADE:	SYDNEY

JUDGE:	CONTI J
DATE:	3 MAY 2002
PLACE:	SYDNEY