Nagi v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 238

FEDERAL COURT OF AUSTRALIA

NAGI v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 238

MIGRATION – Appeal from the Federal Magistrates Court - dismissed

Judiciary Act 1903 (Cth) s 39

R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598

NAGI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N1455 of 2003

HILL J
15 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1455 OF 2003

BETWEEN:	NAGI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	15 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The Appellant pay the Respondent’s costs of the appeal.

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	N1455 OF 2003

BETWEEN:	NAGI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	15 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate dismissing an application for review of a decision of the Refugee Review Tribunal.  The Tribunal had affirmed the decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs not to grant to the Appellant a protection visa. 

2. The Appellant is a citizen of Sri Lanka.  He first came to Australia on 15 February 2000 on a student visa.

3. The Appellant was, he said, a Muslim Tamil.  As I understand it, the Appellant speaks the Tamil language but is of the Muslim faith.  I shall return to that matter later.  It was the Appellant's case that apart from the harassment, interrogation and later arrest because of suspicion that he was involved with the LTTE, he had been abducted in May 1996 by LTTE militants who asked him to assist them in what may be called spying activities at an airport.  At that stage the Appellant was a pilot.  The LTTE threatened to kill him, he said, if he failed in the mission they gave him. 

4. Not only was the Appellant threatened by the LTTE he was later beaten up, he said, by police officers who suspected that he was assisting the LTTE.  Ultimately the Appellant sought and obtained a student visa to come to Australia. 

5. The Tribunal rejected the Appellant's claims for a number of reasons that went to his credibility.  One matter which the Tribunal saw as important was that the Appellant described himself as a Tamil Muslim.  Based on material before it, the Tribunal was of the view that there were no Tamil Muslims.  The information upon which the Tribunal relied indicated that persons who were Muslim, whether or not Tamil speaking, did not see themselves as Tamils, but were seen as a separate ethnic group, namely Muslims. 

6. The Tribunal rejected the claim that the Appellant had been approached by the LTTE for assistance, because the appellant was extremely junior and claimed to have been continuously arrested by the CID. The Tribunal found it implausible that the LTTE would ask such a junior person to assist them when that person was under suspicion from the police. 

7. The Appellant had claimed that he feared harm in Sri Lanka because of an imputed political opinion of being a supporter of the LTTE.  That claim was rejected by the Tribunal, again on the basis of credibility.  It was found by the Tribunal, on the basis of country information, that the LTTE was regarded as an enemy, not only of the government but also of Muslim people, and it was not thought that the Appellant had the risk profile that would be necessary to impute a political opinion based on the LTTE to him.

8. Finally the Tribunal took into account matters such as that the Appellant had been able to obtain a passport legally and without difficulty.  Yet, as the LTTE was a banned organisation in Sri Lanka, a person suspected of being involved with the LTTE would be unable to obtain a passport and indeed, if such a person had a passport, it was likely to be confiscated.

9. The Appellant, as I have already indicated, sought judicial review of the Tribunal's decision before a Federal Magistrate.  The application to the Federal Magistracy contained no grounds indicating the basis upon which judicial review was sought.  The Tribunal noted that the reason that the Appellant had been unsuccessful before the Tribunal was essentially that the Tribunal had not believed the Appellant.  As I have already noted, the Tribunal did not find the claims made by the Appellant to be credible.

10. As I indicated at the hearing to the Appellant, the proceedings in the Magistrates Court were not proceedings designed to find the facts relevant to the Appellant's application, nor to consider the merits of the decision that the Tribunal had made.  Rather, the Magistrate could only intervene if there was a jurisdictional error or, in the limited class of case referred to in the decision of the High Court in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598.

11. The Federal Magistrate was of the view that no jurisdictional error was apparent on the face of the Tribunal's decision.  The learned magistrate noted however that there had been a mis-statement of the Appellant's travel details.  However, her Honour was of the view that that error was not, in the circumstances, of any consequence as the Tribunal did in fact address the actual claims made by the Appellant.  With respect, I agree that that matter is not such as to indicate jurisdictional error and although I have considered the reasons of the Tribunal, I likewise can see no jurisdictional error in those reasons.

12. In my view there is nothing in the learned magistrate's reasons which indicated that her Honour erred in refusing to the Appellant relief under section 39(v) of the Judiciary Act 1903 and accordingly I would dismiss the appeal.  The Appellant is ordered to pay the Minister's costs of the appeal.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             15 March 2004

Applicant appeared in person
Counsel for the Respondent:	Dean Jordon
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 March 2004
Date of Judgment:	15 March 2004