NAHY v Minister for Immigration - [2002] FMCA 211

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAHY & ANOR v MINISTER FOR IMMIGRATION

[2002] FMCA 211

MIGRATION – Review of Refugee Review Tribunal decision affirming a delegate’s refusal to grant a protection visa – applicants claiming persecution as ethnic Chinese Indonesians – credibility of the applicants – no reviewable error disclosed.

First Applicant:

Second Applicant:

NAHY

NAHZ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ506 of 2002

Delivered on:

18 September 2002

Delivered at:

Sydney

Hearing Date:

18 September 2002

Judgment of:

Driver FM

REPRESENTATION

Applicant appeared in person

Counsel for the Respondent:	Mr J Smith
Solicitors for the Respondent:	Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay respondent’s costs and disbursements of and incidental to the application, including any reserved costs, fixed at $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ506 of 2002

NAHY

First Applicant

NAHZ

Second Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

I have before me for ex tempore judgment an application by two applicants in this matter to review a decision of the Refugee Review Tribunal (“the RRT”) made on 16 April 2002. The general background facts are set out in paragraphs 4, 5 and 6 of the written submissions filed on behalf of the respondent Minister. The applicants are married and are citizens of Indonesia of Chinese ethnicity who arrived in Australia on 8 October 2001 on tourist visas. They made claims for protection visas on 29 January 2002 after they had been detained.
They claimed that they lived in Medan and owned a shop there where they were harassed by members of an indigenous Indonesian local youth force because of their ethnicity. They claimed that they were forced to pay the group money and that the applicant husband was beaten if they did not.
A delegate of the respondent Minister made a decision on 20 February 2002 refusing to grant the applicants a protection visa. They applied to the RRT for a review of that decision. The RRT did not accept that the applicants were in business in Medan or that they needed police protection from native Indonesian youths or thugs. The basis of these findings were that the applicants gave inconsistent evidence and their demeanour when giving that evidence was extremely hesitant on basic issues concerning the claimed business.
The RRT next considered the situation of Indonesians of Chinese ethnicity in general. It found on the basis of independent evidence that the chance of the applicants being subjected to persecution for reasons of their race to be remote. On the basis of these findings, the RRT affirmed the decision under review. The application filed on 8 May 2002 asserts that the decision of the RRT was wrong because the applicants were denied a visa. The application asserts as grounds that the RRT decision involves an error of law in that there was no jurisdiction for the RRT to make its decision and that the Migration Act 1958 (Cth) (“the Migration Act”) did not permit the making of the decision.
The matter came before me for hearing on 16 August 2002 and at that time it appeared to me that the applicants faced serious difficulties in the pursuit of their application as framed. At that time no interpreter was available and I adjourned the hearing until today to give the applicants time to amend their application to put it on a more sound basis. I also gave the applicants the opportunity to withdraw their application if they decided not to pursue it.
The applicants took neither of those courses and elected today to pursue their application based upon the original grounds. The applicants informed me that while they were self represented before me today they had received some legal advice between the hearing on 16 August and the hearing today. They sought an adjournment to obtain further legal assistance but I rejected that application on the basis that they had already had sufficient time over the past month to put their proceedings on a proper basis or to discontinue them.
In view of the failure of the applicants to comply with the order I made on 16 August to file an amended application, putting the application on a sound basis, it was open to me today to dismiss the application summarily on the grounds set out in my decision in NAMJ v Minister for Immigration [2002] FMCA 162. I elected instead to hear the application.
The decision under review is a privative clause decision caught by s.474 of the Migration Act, which substantially expands the executive decision making power under the Migration Act. The Full Federal Court has considered the proper approach to the interpretation of the privative clause in NAAV v Minister for Immigration [2002] FCAFC 228. In the case of NAIN v Minister for Immigration [2002] FMCA 177, I considered that decision of the Full Court in a case involving ethnic Chinese Indonesians. I found that six grounds of review are available, or arguably available, in the light of the decision of the majority in NAAV.
Of those grounds, the only ones that could possibly relate to the application as framed before me are the following: first, that the decision exceeds the constitutional limits upon legislative power imposed by the Commonwealth constitution; second, that the decision was not reasonably capable of reference to the power under which it was made; third, that the decision was not made by reference to the subject matter, scope and objects of the Migration Act; and fourth, that the decision was made in breach of an expressed statutory limit or a condition upon a power which as a matter of construction, notwithstanding s.474, must be observed for the effective exercise of the power.
It is obvious that the decision of the RRT does not exceed the constitutional limit upon legislative or executive power imposed by the Commonwealth Constitution. It is also obvious that the decision was reasonably capable of reference to the power under which it was made. It is also obvious that the decision was made by reference to the subject matter, scope and objects of the Migration Act. The applicants have not sought to identify any express statutory limit or condition upon the power of the RRT which may have been breached.
In NAIN, I found that the RRT had committed an error of law in considering whether the applicant in that case was able to access effective state protection in Indonesia. In this case, the decision of the RRT is a far more careful, detailed and objective exposition of that issue. In addition, these applicants were not able to satisfy the RRT that they had in fact suffered the kind of detriment that had been suffered by the applicant in NAIN.
In the circumstances, even if the allegation had been properly made and properly argued, I would not have found that the decision of the RRT was made in breach of any express statutory limit or condition upon the exercise of its power. In the circumstances, I will dismiss the application.
The Minister has sought an order for costs and no opposition was advanced by the applicants. This is a matter where the ordinary principle should apply and costs should follow the event. My general practice in ordinary migration proceedings of this nature is to order that costs be paid in a fixed amount. In this case, a substantial amount of work was necessary for the preparation of the court book in two volumes. There have also been two hearings.
The hearing on 16 August 2002 was adjourned due to the absence of an interpreter, which was not the fault of any of the parties. However, the applicants did not take up the opportunity presented to them on that occasion to amend their application, or to withdraw it. Therefore, the fact that the application was pursued in its original form today has required the attendance of the Minister's legal representatives on a second occasion in circumstances that ultimately have been quite fruitless for the applicants.
The applicants are entitled to pursue their application to completion. However, the application has always lacked merit and respondents to applications are entitled to protection against unmeritorious proceedings. It is likely in these proceedings that the Minister's costs on a solicitor and own client basis would exceed $6,000. In these proceedings it is unnecessary to award costs on any basis other than a party/party basis, and so only a proportion of those costs are properly recoverable.
Pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001 (Cth), I will order that the applicants pay the respondent’s costs and disbursements of and incidental to the application, including any reserved costs, which I fix in the sum of $4,500.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 24 September 2002