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

[2002] FCA 1083

FEDERAL COURT OF AUSTRALIA

NALU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1083

NALU OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 582 OF 2002

BRANSON J
3 SEPTEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 582 OF 2002

BETWEEN:	NALU OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	3 SEPTEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 582 OF 2002

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

JUDGE:	BRANSON J
DATE:	3 SEPTEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By an application dated 20 June 2002 the applicant has sought, in effect, judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal, by a decision handed down on 23 May 2002, affirmed a decision of a delegate of the Minister not to grant a protection visa to the applicant.

2. The applicant is a citizen of India.  He appeared before the Court without legal representation but assisted by a Hindi/English interpreter.  He appears to speak little English.

3. It is apparent that the application and the written submissions provided to the Court by the applicant were drawn by someone other than the applicant.  They contain limited references to the decision of the Tribunal in the applicant’s case.  They contain references to legal authorities and texts with which the applicant could not be expected to be familiar.  The written submissions, although dated 20 August 2002, contain no reference to the crucial decision of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 delivered on 15 August 2002.

4. I am confident that the applicant came to Court not knowing the content of his application or the document which purports to be his submissions to the Court.  As the submissions document was sent to the Court by facsimile transmission from a number which appears to be that of an accounting firm there is, it seems to me, some reason for concern that a vulnerable person may have been exploited by an individual purporting to have qualifications that he or she does not have.  However, this is not a matter which I am in a position to take further.

5. The applicant arrived in Australia on 30 January 2000 on an Indian passport.  At that time he held a temporary business visa which was valid for multiple entries until 15 May 2000.  He claims to be a member of the Muslim League and subject to persecution in India.  However, the Tribunal found that his claims were “vague, generalised and generic”. It did not accept the veracity of his claims and was not satisfied that the applicant was the subject of persecution for his religious or political activities in India. Consequently the Tribunal was not satisfied that the applicant has a well‑founded fear of persecution in India by reason of his religious or political opinion. It concluded that he did not satisfy the criterion set out in s 36(2) of the Migration Act 1958 (Cth) (“the Act”) for a protection visa.

6. The decision of the Tribunal is a “privative clause decision” within the meaning of s 474(1) of the Act. Section 474(1) provides:

   “(1)     A privative clause decision:

   (a)is final and conclusive; and

   (b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

   (c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

7. Section 474(1) does not mean what it says; nonetheless it leaves little scope for judicial review (NAAV v Minister for Immigration & Multicultural & Indigenous Affairs per Black CJ, Beaumont and von Doussa JJ, Wilcox and French JJ dissenting).

8. All members of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs regarded s 474(1) as a clause of the kind considered by the High Court in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 (“R v Hickman”) and other cases.  In R v Hickman, Dixon J observed at 615:

   “Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.”

9. The members of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs were also in broad agreement that, as a matter of construction, a provision which disclosed a clear legislative intent that the observance of a particular procedure was a precondition for the making of a valid decision might override the intention otherwise to be discerned from s 474(1).

10. The document which purports to be the applicant’s submissions asserts that:

    “[t]he Tribunal’s ignoring of relevant evidence and its finding in the face of contradicting independent evidence which indicates actual bias constitute jurisdictional error being a breach of procedural fairness which is an essential condition of the exercise of the decision making power … .”

11. No particulars of the relevant evidence allegedly ignored by the Tribunal are provided nor are particulars provided of the “contradicting independent evidence”.  The material before the Court provides no support for the assertion that the Tribunal was actually biased against the applicant.  The applicant made no oral submission that the Tribunal displayed actual bias.  The issue of alleged bias need not be further considered.

12. The document which purports to be the applicant’s written submissions further asserts that “the authority has not considered applicant’s claims …” and that “[t]he RRT has failed to investigate the applicant’s claims, specifically the grounds of persecution, in India”.  If this latter assertion is intended to constitute a complaint that the Tribunal did not carry out investigation in India, it is sufficient to say that the Tribunal was under no such obligation.  Even if this possible interpretation of the latter assertion is put to one side, the assertions find no support in the reasons for decision of the Tribunal.  The Tribunal gave consideration to the applicant’s claim to have been subjected to persecution in India but did not accept the veracity of the claim.  The credibility of the applicant was a matter for the Tribunal’s determination.

13. The material before the Court discloses no basis for a conclusion that the decision of the Tribunal is not a bona fide attempt to exercise the power vested in the Tribunal. The decision plainly relates to the subject matter of the Act and it is referable to the power given to the Tribunal. No “inviolable procedure” can be identified with which the Tribunal failed to comply (see R v Coldham; Ex parte The Australian Workers’ Union (1983) 153 CLR 415).

14. At the hearing before the Court the applicant tendered two documents which were received in evidence subject to the respondent’s objection to their relevance.  The first is a document dated 20 July 2002 on the letterhead of the Indian Union Muslim League Ward No.‑6, Calcutta.  Its content is as follows:

    “[the applicant]

    It is to inform you that WARRANT FOR ARREST has been issuded [sic] in your name by the Police Authorities and the Intelligence Branch are searching for you. Secondly, the confrontation between the BJP and Muslim League is going on and the situation is very sensitive.  It is advisable to you, that you should’nt [sic] come here at this moment because you will be surely implicated into many criminal proceedings and you will put into awkward position.”

15. The second document, which bears a notarial stamp, is dated 16 July 2002 and headed “REPORT”.  It refers to searches conducted at:

    “the Court of Civil Judges at Alipore, Sealdah, Howrah, Uluberia and in the City Civil Court at Kolkata and Warrant Registers at Judicial Magistrate Court, CMM’s Court at Kolkata, relating to cases, proceedings and suits pending in the name of [the applicant].”

    After identifying certain cases pending in the name of the applicant, the report concludes:

    “From the Records and on investigation it appears that [the applicant] has been implemented in different cases on false grounds and most of it is politically motivated as he was not present during filing of the most cases.

    It also appears during investigation that some persons so to gain the situation unlawfully are planning to implicate him in different cases with a malafide intention and object to harass him and to put him to exceptional hardships, troubles and miseries to his life or even get him arrested on false cases and proceedings.  It is being suggested that [the applicant] should not visit his place at Kolkata for some time in order to avoid from being implicated in various false cases under section of IPC code and CPC code..

    That the foregoing startements [sic] are true to the best of my knowledge and belief”

16. Neither of the above documents was before the Tribunal.  The respondent’s submission that they have no relevance in this proceeding must therefore be upheld.  I note, however, that even if the documents had been brought into existence earlier and placed before the Tribunal, it seems unlikely that they would have provided much support to the applicant’s case.  Without being able to probe the bases upon which the respective authors of the documents expressed the opinions contained in them, the Tribunal would have been able to accord little weight to the opinions.

17. The application will be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:            3 September 2002

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr G Kennett
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	22 August 2002
Date of Judgment:	3 September 2002