Nady of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 708

FEDERAL COURT OF AUSTRALIA

NADY of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 708

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

N 176 of 2002

WHITLAM J
23 MAY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 176 of 2002

BETWEEN:	APPLICANT NADY OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	23 MAY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant is to 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 176 of 2002

BETWEEN:	APPLICANT NADY OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	23 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This proceeding commenced on 5 March 2002 when the applicant, a Filipino national who acts for himself, filed what purported to be an application under s 39B of the Judiciary Act 1903 in respect of a decision of the Refugee Review Tribunal (“the Tribunal”).

2. The applicant entered Australia as a visitor on 27 January 2000.  He applied for a protection visa on 21 August 2001.  A decision by a delegate of the Minister refusing to grant such a visa was affirmed by the Tribunal on 9 January 2002.  It is the Tribunal's decision with which the applicant is concerned and in respect of which he says “he wishes to appeal today”.  The application as filed states:

   “1.The [Tribunal] has not attended any evidence in relation to the applicant's claims and thus its decision is influenced by sufficient doubts.  The applicant provided a suitable vehicle and most of the grounds relied upon facts and documents, which the Tribunal did not consider.  The [Tribunal] heavily depended in their handling of the issues based on the generalized facts and findings of DIMA. 

   2.The [Tribunal] failed to internalise the circumstantial grounds of the review application while considering the claims of the review application and did not consider the supporting facts and documents. Therefore, the applicant seeks a review of the decisions of the Tribunal under s 39B of the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) [“the Act”].

   3.The applicant is a genuine refugee under the UN Convention … but the authority has not considered the applicant's claims and he has been refused to remain in Australia permanently.  The [Tribunal] has failed to investigate the applicant's claims, specifically the grounds of persecution, in Philippines.  Therefore, the [Tribunal's] decision dated on 9 January 2002 was affected by actual bias constituting judicial error. 

   4.The conduct of the hearing by the member constituting the applicant [sic] was such that a fair-minded lay observer might reasonably have apprehended that the member might not bring an impartial mind to the resolution of the question to be decided or grant or refusal of protection visa.”

3. Given that the applicant was unrepresented, I had regard to whether the principles enunciated in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 could be applicable so as to give some scope for the application of s 39B of the Judiciary Act. Nothing the applicant said and nothing in the so-called “green book” indicated that there is any basis for such an application. In those circumstances s 474 of the Act is perfectly clear.

4. There is a sterile debate about whether s 474 of the Act deprives the Court of jurisdiction in respect of a proceeding such as this.  Whether or not it does, there can be no doubt that the Court is able, without considering any other aspect of the Tribunal's decision, to consider at the threshold whether the proceeding may be entertained. 

5. The decision of the Tribunal is a privative clause decision and caught by the definition in s 474(2) of the Act.  As I have said, there is nothing in the material whatsoever to indicate that the Hickman principles have any application in the present case. 

6. Accordingly the application will be dismissed with costs. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             4 June 2002

The applicant appeared in person.

Counsel for the respondent:	R M Henderson
Solicitors for the respondent:	Clayton Utz
Date of hearing:	23 May 2002
Date of judgment:	23 May 2002