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

[2002] FCA 1488

FEDERAL COURT OF AUSTRALIA

NAKX of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 1488

MIGRATION – judicial review of decision of Refugee Review Tribunal – whether Tribunal Member erred in rejecting applicant’s claims of persecution – Tribunal Member disbelieved applicant’s claim of homosexuality – whether Member acted in good faith – no error made out

NAKX OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N534 OF 2002

MADGWICK J
20 NOVEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N534 OF 2002

BETWEEN:	NAKX OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	20 NOVEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an adjournment be refused.

2.The application be dismissed.

3.The applicant pay the respondent’s costs.

4.Leave is granted to the respondent to file and serve (or explain non-service) within 21 days any application for costs in relation to the applicant’s former counsel.

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	N534 of 2002

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

JUDGE:	MADGWICK J
DATE:	20 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:  

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) of 15 April 2002, which affirmed the decision of the delegate of the respondent Minister not to grant the applicant a protection visa on account of his alleged refugee status. 

2. The grounds of the application are said to be as set out in an accompanying affidavit.  These grounds allege firstly an error of law “being an error involving an incorrect interpretation of the applicable law or an incorrect application of law to the facts as found by the Tribunal” because the Tribunal had reached the conclusion that the applicant was not a homosexual although there was no evidence to support that conclusion.  The applicant claimed that “the Tribunal erred in completely rejecting the whole of the applicant’s evidence without any good reason”.

3. Further, it was said that the Tribunal failed to apply the correct tests to determine whether the applicant had a well founded fear of persecution, applied incorrect criteria in reaching its determination and “consequently failed to determine the applicant’s claim for a protection visa in accordance with its mandate and as required by law”.  There is then a more or less incomprehensible complaint that there was no evidence to support what was actually advice from Australia’s Department of Foreign Affairs as to there being no examples of actual prosecutions as distinct from arrests of consenting adult males for engaging in “unnatural” acts.  The applicant said that there was no evidence to support the conclusion reached by the Tribunal and that he had not been provided with any information with respect to evidence the Tribunal was relying on to reach that conclusion.  The evidence to which I have referred was in fact the evidence that supported the Tribunal’s conclusion on that matter. 

4. It was then claimed that the Tribunal erred in interpreting information from the Department of Foreign Affairs and that the Tribunal erred in making its finding of fact “based on the decision of another Tribunal in another matter and failed to consider the evidence which supported the Applicant’s claim”.  This was presumably a reference to an earlier decision of the Tribunal differently constituted, also unfavourable to the applicant, which he successfully challenged in this Court.

5. Next, there is a suggestion that the applicant had been denied natural justice, but this is described in such terms that the complaint appears to have little to do with natural justice and simply complains of unfairness in factual findings. The next ground asserts failure “to carry out the task mandated by the Act” by reason of the Tribunal having failed to take into account relevant matters and take into account irrelevant matters. The final ground taken is “the Tribunal failed to complete its task mandated by the Act and the Convention and so made orders without jurisdiction”.

6. Unpromising as these grounds would have sounded under the Migration Act 1958 (Cth) (“the Act”) before the 2001 amendments, they are even less promising thereafter. When the matter originally came on for hearing before me on 23 August 2002, the applicant’s counsel was unfamiliar with the then recent decision in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. I adjourned the matter to permit counsel to familiarise himself with that case and to make further written submissions.

7. Some further written submissions were filed on 6 September 2002 which are remarkable for their brevity and generality.  The operative part is as follows:

   “The Applicant submits

   (a)The Applicant in this case relies on bias and lack of good faith on the part of the Tribunal.

   (b)The Applicant in this case relies on the fact that the Tribunal did not act within the strict limits of its mandate and applied criterion (sic) that was not in accordance with the requirements of the Convention,

   (c)The privative clause could not exempt the Tribunal from observing the fundamental precept of natural justice and its obligation to act with impartiality.  

   The issue in this matter is whether the decision is affected by bias and whether the Applicant was denied [fundamental] fairness by reason of the matters raised in the affidavit evidence of the Applicant.”

8. There was also filed another affidavit of the applicant sworn on 6 September 2002 in which he complains of a denial of “fundamental natural justice” saying that because the inquiry by the Tribunal was unfair he was not given “fair opportunity” to respond to any of the evidence cited by the Tribunal’s decision, nor was his attention drawn to any of that specific evidence. 

9. The applicant alleges:

   “The Tribunal in the conduct of its inquiry acted with unfair bias in favour of the respondents and against me in as much as it purported to gather evidence and material to support the decision of the delegate and searched for material that supported only the adverse inference against my claims and did not devote the same efforts to find material that did not support the delegate[’s] decision.  The Tribunal did not pursue the inquiry with complete impartiality.”

10. The only other allegation which is contained in that affidavit and that might possibly have anything to do with a legal challenge is the following:

    “The Tribunal was required to satisfy [itself] whether I had suffered persecution and not whether the persecution I had suffered was widely prevalent.  The Tribunal expected to be satisfied that the persecution I claim to have suffered was widely prevalent before it could find that the persecution I complained of met the requirements of the convention.  The Tribunal thus failed to act within the limits of [its] mandate.”

11. When the matter came on for hearing again today, after delays which were no fault of either party, the applicant was unrepresented.  He made an unmeritorious application for an adjournment which I rejected. 

12. The nature of the applicant’s claim is that as a Sri Lankan national, he feared persecution for reasons of his membership of a particular social group, namely homosexuals.  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. 

13. 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.

14. The Tribunal Member comprehensively disbelieved the applicant’s claims, regarding his credibility as so shattered that he would not even accept that the applicant was a homosexual.  Very extensive reasons were given by the Member for this disbelief.  Another fact finder might very possibly have taken the view that, despite a number of apparent lies and exaggerations, desperate people may do desperate things, and have gone on to assess the applicant’s claims simply on the basis that he could be assumed to be homosexual.  Even so, that would not have availed the applicant because the Tribunal concluded that, in such a case, there would be no well-founded fear of persecution.  The Tribunal Member applied the doctrine accepted in this Court e.g. in MMM v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 324 that it cannot reasonably be suggested that a person would be persecuted on account of his or her homosexuality by reason of the existence of laws in substance aimed at homosexuality if there is no real chance that such laws will be enforced.

15. The Tribunal Member, as I have implied, certainly took a robust approach to the applicant’s credibility.  I do not say that in no case could an excessively adverse reaction to an applicant’s credibility provide some evidence of an absence of good faith by a Tribunal Member in approaching his or her task.  However, this case is a long way from that and, in any event, there is at least one positive indication that the Tribunal Member took his task very seriously and did act in good faith.  A question arose as to the authenticity of some records of a particular Court in Sri Lanka.  The applicant’s representative pointed out that officers from Australia’s Foreign Affairs Department should be able to establish the truth of the relevant matter by inquiring at the court.  The ready ability, as an observer might think, of that Department to quell a factual controversy very often arises in refugee cases.  In my experience, it is the exception rather than the rule that the Tribunal Member seeks to have those further inquiries made.  The Tribunal Member did so seek here, although it appears that the Department did not respond to his request.  In my opinion, that is a powerful indicator of a Tribunal Member doing his best in good faith to do his job and acknowledging that there might possibly be objective evidence which, if obtainable, could put a different cast on the matter. 

16. 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.

17. 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.”

18. 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.

19. Accordingly, the application will be dismissed.  The applicant will be ordered to pay the costs of the respondent.  I will give the respondent leave within 21 days to file and serve (or explain non-service) of any application for costs in relation to the applicant’s former counsel.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            2 December 2002

Applicant appeared in person with an interpreter.
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	20 November 2002
Date of Judgment:	20 November 2002