NAMF v Minister for Immigration - [2002] FMCA 307

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAMF v MINISTER FOR IMMIGRATION

[2002] FMCA 307

MIGRATION – Application for review of decision of Refugee Review Tribunal – privative clause decision – application dismissed.

Migration Act 1958
Migration Legislation Amendment (Judicial Review) Act 2001
Judiciary Act 1903

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228
R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598
Zahid v MIMIA [2002] FCA 1108
NABM v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294
NADR v MIMIA [2002] FCAFC 293
Wu [2002] FCA 1242
Craig v State of South Australia (1995) 184 CLR 163

Applicant:

NAMF

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ603 of 2002

Delivered on:

31 October 2002

Delivered at:

Sydney

Hearing Date:

31 October 2002

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Bharati Solicitors

Counsel for the Respondent:

Mr G Kennett

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the application is dismissed.
That the applicant pay the respondent’s costs fixed in the amount of $4,400 under Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ603 of 2002

NAMF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The application

This is an ex tempore judgment in the matter of NAMF v Minister for Immigration & Multicultural & Indigenous Affairs. The applicant is a citizen of India who arrived in Australia on 23 October 2000. He applied for a protection visa on 5 December 2000. The application was refused on 6 January 2001. On 9 February 2001 he sought review by the Refugee Review Tribunal. The Tribunal affirmed the decision not to grant a protection visa in a decision handed down on 29 May 2002. The applicant sought review in the Federal Court under section 39B of the Judiciary Act 1903 on 24 June 2002 and the matter was transferred to this court by Whitlam J on 19 July 2002.
The applicant claimed to have a genuine fear of persecution on the grounds of his Sikh religion and imputed political opinion. In his protection visa application he claimed that he was a Hindu Punjabi. He had been forced to support Sikh militants by giving them food and accommodation at his family farm house. Hence he was at risk of persecution by the police as a suspected terrorist. He also claimed that the Sikh terrorists would want to kill him as a suspected police informer. He claimed to fear, in other words, that he would be killed by either the police or the militants if he returned to the part of India from which he came.
According to the Tribunal reasons for decision, the applicant made different claims in oral evidence to the Tribunal. He stated that his parents and a deceased uncle had been supporters of militants in the 1980s and early 1990s, that he did not support them but was motivated by friendship to assist them, and that it was because of this friendship with the militants that the police wanted to kill him. He also claimed to have been taken away by the militants as a 12 year old child in about 1988. This was first mentioned in the hearing. No reason was given for the incident. He said that he had been taken for two or three days and then returned to his family. He told the Tribunal that the militants were not just Sikhs but consisted of other people including people who were Hindus. He gave a different account of his employment and qualifications.
The Tribunal found that the claim of persecution for a Convention related reason was without foundation and that on the evidence before it there was no basis for the applicant's claim that he had a well-founded fear of persecution if he returned to India now or in the foreseeable future. It relied on independent country information. The applicant had stated that the ‘militants’ to whom he referred were not just Sikhs but included other people such as Hindus. The independent country information indicated that there had not been an active insurgency movement in recent times in UP. The Tribunal concluded that the visitors to the applicants parents' farmhouse were more probably criminal elements looking for shelter and food rather than a well organised Sikh militant group. The Tribunal was not satisfied in relation to the claimed fear of ‘militants’ that the applicant and his family were singled out for any Convention related reason.
The Tribunal also noted that the Uttar Pradesh area had been and remained ‘remarkably free’ of militant activities and that there was no recent history of violence by the authorities or police in the area. The applicant had made no allegation of adverse action visited on him since the claimed 1988 incident either by the police or by any other special interest group. The applicant had, between July and October 2000, obtained a passport and an Australian visa and left India apparently without any difficulty. The applicant's family continued to live in Uttar Pradesh as normal. The Tribunal found any fear the applicant or his family may have had terminated in about the mid 1980s. It found no basis in fact for the applicant’s fear of the police.
The applicant filed an application and an amended application. The first was accompanied by an affidavit. A number of grounds were identified in the applications and in the written and oral submissions. The submissions pressed in the oral submission made by the applicant’s solicitor do not include a challenge to the constitutionality of section 474 and the other provisions in the Migration Act 1958, although such issues were canvassed in the written submissions.
The grounds raised included whether the Tribunal acted in good faith and whether there was a bona fide exercise of power. It is also claimed that the Tribunal failed to act on the proper principles in consideration of the merits of the case, that the decision was an improper exercise of the power conferred by the Act or regulations, and that the decision involved an error of law, being an incorrect application of the law to the facts as found by the decision maker. The amended application added a claim of a lack of procedural fairness.
There are also a number of questions raised in the written submission prepared by the applicant’s solicitor which are in the nature of rhetorical questions: such as “Whether the Federal Court is no longer a place for the aggrieved applicants which have been denied natural justice?” and “Is the recent changes in the judicial review process have been brought up to deny and frustrate poor and disadvantaged aggrieved applicant to knock the door of the Highest Court?”(sic).
The main issues for this court, however, are set out more clearly on the last page of the written submission. It is claimed that the applicant was denied procedural fairness. In oral submissions this was said to be on the basis that the Tribunal had not informed him of all the issues that would be addressed at the hearing. It was suggested that it is now Tribunal practice to provide more information to an applicant. It was also claimed that the Tribunal failed to take into account ‘the relevant issues of the case’, that the Tribunal member, in the words of the submission, ‘did not talk much about the issues related with the persecution’, and that the Tribunal ‘made decision with closed mind and spent more time on the issue of relocation.’
Apart from this there was little explanation of the basis for the claims. I asked the solicitor for the applicant what was the basis for the claim that the Tribunal made the decision with a closed mind and ‘spent more time’ on the issue of relocation. My attention was drawn to one paragraph of the Tribunal's decision which states:
More recently, country information indicates that UP is still remarkably free of militant activities although some people from Uttranchal were discovered in March 2002 giving shelter to two terrorists (not Sikhs) who had recently been involved in raiding a church in the tribal area of Khatima.
No other material was relied upon to support the claims that the decision was made with a closed mind, apart from the submission that the delay from the time of the review application to the time of decision by the Refugee Review Tribunal meant that the privative clause (introduced in relation to applications made to the court from

2 October 2001) applied to this applicant. It was suggested that this might be an indication of bad faith. It was also claimed that the Tribunal had made a mistake in some sense in not taking into account submissions made by the solicitor for the applicant in relation to dangers in the area of UP, and that those issues had not been extensively analysed by the Tribunal.
In detailed written submissions the respondent submitted that the material before the court did not disclose any jurisdictional error and that if in fact there was any error then it was an error which did not provide a basis for review on the present state of the law.

The applicable law

It is common ground that the Tribunal decision is a privative clause decision within the meaning of section 474(2) of the Migration Act and as such is subject to the limitations on judicial review prescribed by section 474(1) which were introduced by the Migration Legislation Amendment (Judicial Review) Act 2001.
The proper construction of section 474 has now been the subject of detailed consideration by the Full Court of the Federal Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. It was conceded by the solicitor for the applicant that the court was bound to apply that decision.
In that decision each member of the court delivered a separate judgment in relation to five appeals that were before the court. All agreed that section 474 is constitutionally valid and that the amendments removed what would otherwise be errors in the making of some migration decisions from the scope of judicial review by validating decisions that might otherwise have been invalid.
There was broad agreement that section 474(1) is not to be read literally but is to be construed in the same manner as the kind of privative clause which was considered in decisions of the High Court, in particular R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598. In that case Dixon J identified three conditions which, if met, would ordinarily mean that a decision which is the subject of a privative clause would be valid, namely:
i)that the decision was a bona fide attempt to exercise the power conferred on the decision maker;
ii)that the decision relates to the subject matter of the legislation;
iii)that the decision is reasonably capable of reference to the power conferred.
There was also broad agreement in NAAV that the purported exercise of power by the decision maker must not be one that contravenes what is variously described as an ‘inviolable limitation’ or ‘restraint’, a ‘final limitation upon the powers, duties and functions of the decision maker’, or a ‘structural element’ in the operation of the Act. I refer in particular to the judgments of Black CJ, von Doussa J and Beaumont J. In other words, as a matter of construction the broad statement of legislative intention expressed in the privative clause may be displaced by a provision which makes clear Parliament's intention that the observance of some procedure or the proper consideration of some issues is to be a precondition for a valid decision, as outlined by Sackville J in Zahid v MIMIA [2002] FCA 1108. There is some difference in the approach taken by the majority and the minority in NAAV in relation to such final or inviolable limitations on the decision maker's power. However, as has been held by the Full Court of the Federal Court in the subsequent decision of NABM v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294, the Tribunal's failure to address the correct question does not constitute an infringement of an inviolable condition, jurisdictional factor or structural element found in the Migration Act. In that respect the Full Court agreed with the analysis of Sackville J in Zahid.

The present case

In the present case I have considered the various claims made by the applicant. The first of those claims might be regarded as the claim of a lack of procedural fairness based on the suggestion that the Tribunal failed to bring to the applicant's attention prior to the hearing the questions that would be raised in the hearing. The applicant's solicitor provided no basis in law for the submission that such a failure amounts to a lack of procedural fairness, other than to suggest that there has been some change in Tribunal procedures.
I am satisfied that the applicant was invited to attend a hearing and had the opportunity to attend a hearing and present evidence. Indeed, when first the migration agent and then the applicant claimed that ill health prevented attendance at a hearing, the Tribunal member re-listed the hearing. Ultimately the hearing proceeded with both the adviser and the applicant present. He had an opportunity to put his case to the Tribunal and to respond to any concerns raised by the Tribunal.
There is no suggestion that there were any particular issues raised at the hearing that could not reasonably be dealt with by oral evidence or submissions. Nor was there any contention that there was non-compliance with any specific statutory obligation such as that contained in section 424A of the Migration Act. I am not satisfied that the evidence establishes that there has been a denial of procedural fairness. If I am wrong I note that NAAV clearly establishes that a failure to provide procedural fairness is not a basis for a grant of relief. I refer to Beaumont J at paragraphs [113] to [114], von Doussa J at [648], and note that Black CJ agreed with this conclusion.
It was also argued that the Tribunal did not act in good faith. In the written submissions it was suggested that the Tribunal made the decision with a closed mind and spent more time on the issue of relocation. The basis for such a claim was the paragraph at the bottom of page 73 of the court book that I have previously quoted. I see nothing in that paragraph or otherwise which supports the contention or establishes an absence of good faith or that there was not a bona fide exercise of the power conferred on the Tribunal within the Hickman principles.
The other issue raised in relation to the claim of bad faith was the suggestion that there was a delay by the Tribunal which meant that s.474 applied to the applicant. The time taken by the Tribunal between the lodging of the application on 19 February 2001 and the decision on 29 May 2002 does not of itself establish bad faith. I note that the hearing was held on 29 April 2002 after two postponements occasioned by the illnesses of the applicant and his adviser.
A number of decisions of the Federal Court have indicated that allegations of a lack of a bona fide attempt, a lack of good faith or actual bias are serious allegations and difficult to establish, and that normally what is required is the establishment of a lack of an honest or genuine attempt to undertake the task, such allegations involving a personal criticism of the Tribunal or officer in question. No such matters have been established in this case. See NADR v MIMIA [2002] FCAFC 293 and the recent decision of Sackville J in Wu [2002] FCA 1242.
I am not satisfied that a lack of good faith or an absence of a bona fide exercise of power has been established. Nor has it been established that there was an improper exercise of power as was submitted. There is no indication in the material before the court or the submissions of any way in which the Tribunal's exercise of power is improper. I also note that such matters no longer constitute jurisdictional error unless they result in a failure to satisfy one or more of the Hickman conditions. This has not been established.
In so far as it is suggested that the Tribunal reached conclusions with which the applicant or his adviser does not agree, I note that that effectively this is seeking impermissible merits review so far as it involves disagreement with conclusions of fact.
It is also submitted that the Tribunal made an error of law. There is no identification of a particular error of law other than the emphasis on relocation. In so far as this or the other claims are intended to allege that the Tribunal failed to take into account relevant considerations or took into account irrelevant considerations, the material before the court does not support such a claim. In any event NAAV establishes that the privative clause validates an error which amounts to a jurisdictional error in the sense set out by the High Court in Craig v State of South Australia (1995) 184 CLR 163.
There is also an allegation that the Tribunal failed to act on proper principles. The ground has not been explained and is not established. There is no indication of any error in the application by the Tribunal of the test of whether the applicant is someone to whom Australia owed protection obligations (s.36 of the Migration Act). Again, if there were such an error, it would not ground relief in the light of section 474.
Nor am I satisfied that any of the other submissions made by the applicant establish a reviewable error in any way. The general suggestion that the Tribunal member did not ‘talk much’ about the issues related to persecution does not establish a failure to take into account relevant considerations. If it did, such failure would in any event be validated by s.474. The disagreement with the conclusions of the Tribunal, as I have said, seeks impermissible merits review.
Accordingly it has not been established that the decision was not a bona fide attempt to exercise power by the Tribunal. I am satisfied that the decision related to the subject matter of the legislation and was reasonably referrable to the power conferred on the Tribunal. I am not satisfied that any requirement of the Act that was necessary to attract the Tribunal's jurisdiction was not met, or that there is any inviolable provision which has been contravened. In these circumstances it follows that the applicant's claim for relief must be dismissed. I therefore dismiss the application.

RECORDED : NOT TRANSCRIBED

The application before me is that the applicant’s solicitor should bear the Minister's costs in these proceedings which the Minister has assessed at $4,400. Orders for costs against lawyers are dealt with in Rule 21.07 of the Federal Magistrates Court Rules. I note that there is no equivalent rule in the Federal Court Rules.
The rule is quite specific in relation to an award of costs against a lawyer. Before making such an order I must be satisfied that the lawyer has caused costs to be incurred by a party or another person or to be thrown away because of undue delay, (of which there is no suggestion), negligence, improper conduct or other misconduct or default.
I have listened to what Mr Kennett for the Minister had to say in relation to the contentions that were put in this case, in particular the suggestion that the lawyer was at fault in raising a contention that the Tribunal decision was made in bad faith without a proper foundation for the claim, and the general submission that a number of questions were raised which do not go to the validity of the Tribunal decision (particularly as it was accepted that NAAV was applicable).
However it must be said that the law in this area is presently under consideration by the High Court. In those circumstances, arguments may well be put which otherwise might be inappropriate in the sense argued by Mr Kennett. While there are some clear deficiencies in the submissions of the applicant and the manner in which the arguments were put, both in written submissions and in the oral submissions that were made to the court today, I do not consider, on balance, that they are such as to amount to improper conduct, misconduct or default such that it would be proper for me to make an order personally against the lawyer in this particular case.

I accept Mr Bharati's assurance that a similar approach would not necessarily be taken in the future. I might be otherwise inclined were arguments to be put in without a proper basis in the future.
If the applicant is required to pay the costs he will have a debt to the Commonwealth. Nonetheless he has been wholly unsuccessful and it is therefore appropriate that he bear the costs of the Minister in this matter. I consider that the amount calculated by the Minister is an appropriate amount for costs. Accordingly, I intend to set the costs in accordance with rule 21.02(2)(a) of the Federal Magistrates Court Rules.
Accordingly it is ordered that the application be dismissed and that the applicant pay the respondent’s costs fixed in the amount of $4,400 under Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: