NAKX of 2002 v Minister for Immigration and Multicultural

[2003] FCAFC 98

FEDERAL COURT OF AUSTRALIA

NAKX of 2002 v Minister for Immigration & Multicultural
& Indigenous Affairs [2003] FCAFC 98

Migration Act 1958 (Cth)

NAKX of 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N1319 of 2002

WHITLAM, FINN and GOLDBERG JJ
20 MAY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1319 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NAKX of 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM, FINN and GOLDBERG JJ
DATE OF ORDER:	20 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal be dismissed with 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	N1319 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NAKX of 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WHITLAM, FINN and GOLDBERG JJ
DATE:	20 MAY 2003
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. The appellant, a Sri Lankan national who came to this country in March 1997, unsuccessfully applied for a protection visa (Class AZ).  He claimed to fear persecution by reason of his being a homosexual in Sri Lanka.  In the decision of the Refugee Review Tribunal (“the Tribunal”) which led to this appeal, the appellant’s claims were “comprehensively disbelieved” (to use the primary judge’s apt description).  The Tribunal went so far as not even to accept that the appellant was a homosexual.  It, nonetheless, did go on to consider whether, if his claims were accepted, he had a well-founded fear of persecution by reason of his membership of a particular social group (ie homosexuals).  It did not accept that he did.

2. The general character of the claims made by the appellant are conveniently described in the following two passages from the decision of the primary judge:

   “He made a number of dramatic allegations, including that in September 1996, in consequence of having been found kissing and cuddling his male lover in a place known as the Spice Garden, the owner of the garden caused a sign to be put around his neck stating that as a homosexual, he should be stoned to death.  Further, the applicant said he was arrested and brutally raped by the police in Kandy and he was charged with the commission of an unnatural act under a particular provision of the Sri Lankan penal code.  He also claims that he was again raped by police and that he had been told that his said lover had been killed by the police, apparently on account of his homosexuality.

   Notwithstanding that the applicant had claimed to have breached the bail conditions imposed on him following the charge laid against  him, he came to Australia on a Student Visa in March 1997 using a Sri Lankan passport issued in his own name.  He applied for a Protection (class AZ) visa on 12 December 1997.  He asserted that he had subsequently frequented homosexual establishments in Sydney.”

3. As the trial judge observed, the Tribunal gave “very extensive reasons” for disbelieving the appellant.  Those reasons in turn were reinforced by its rejection of the genuineness of some number of summonses and warrants produced by the appellant which were said to demonstrate that he had been charged with, and that he was to be arrested for, an alleged homosexual offence.  The defects in these documents and the contradictions between the various sets of them are striking.

4. The appellant’s application to the Federal Court consisted of a number of generalised grounds which were correctly characterised by the primary judge as “unpromising”.  They were later supplemented by allegations of denial of “fundamental justice”, “unfair bias”, and “failure to act within its [the Tribunal’s] mandate”, these latter seemingly being prompted by the 2001 amendments to the Migration Act 1958 (Cth).

5. The primary judge’s conclusions on the various grounds advanced were in the following terms:

   “The original grounds of the application are not made out, even if they could still avail the applicant.  There was no error of law.  The Tribunal Member did not err in the tests to be applied.  The Tribunal did not make its findings of fact based on the decision of the earlier consideration of the matter by the Tribunal (the earlier Tribunal Member accepted the applicant’s homosexuality) nor did the Tribunal Member fail to consider the evidence which supported the applicant’s claim.  There was, so far as I can see, no denial of natural justice.  Insofar as actual or ostensible bias might have been intended to be relied upon, neither was apparent.  Nor did the Tribunal err in the matter of relevancy of the material to which it looked or did not look.  The balance of the grounds put forward by the applicant are either frank misapprehensions or so general as not to require them further to be dealt with.

   Turning to the written submissions of 6 September 2002, neither bias nor lack of good faith on the part of the Tribunal has been made out.  The Tribunal member did not exceed the ‘limits of [the Tribunal’s] mandate’ nor did it apply any criterion which did not accord with the requirements of the relevant Convention.  There was no other basis for considering that there was any denial of justice.  The Tribunal was not required to draw to the applicant’s attention any of the material which it did not specifically do so under the procedures prescribed by the Act.  The Tribunal did not apply a test of whether the claimed persecution was ‘widely prevalent’.

   In short, there is no ground of attack which could possibly survive s 474 of the Act as that section has been held to be valid and interpreted in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 which I am bound to follow. Even if the law in relation to that subject should be regarded, by reason of a pending High Court proceeding as in a state of development, there is no warrant for me to adjourn the proceedings pending the outcome of that proceeding, because on the most generous view of judicial review available under s 39B of the Judiciary Act 1903 (Cth) the applicant appears not to have a shred of a case.”

6. His Honour’s final description of the case before him is one we would endorse.

7. The sole ground in the appellant’s notice of appeal from the primary judge’s judgment is that his Honour “erred in construing the Migration Act 1958 by upholding the decision of the Refugee Review Tribunal”.  That ground was not particularised.

8. In presenting his own case on the appeal, the appellant did not seek to elaborate upon the grounds of appeal.  He did not attempt to refer to any matter which might suggest some appellable error on the primary judge’s part.  No such error is discernible.

9. The appeal will be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of Whitlam, Finn & Goldberg JJ.

Associate:
Dated:             21 May 2003

Applicant appeared in person.
Counsel for the Respondent:	Mr R J Bromwich
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	20 May 2003
Date of Judgment:	20 May 2003