Nang v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1143

FEDERAL COURT OF AUSTRALIA

NANG v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 1143

NANG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 649 OF 2002

EMMETT J
6 SEPTEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N649 OF 2002

BETWEEN:	NANG APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT
DATE OF ORDER:	6 SEPTEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. the application be dismissed;

2. the applicant pay the respondent's costs;

3. orders 1 and 2 be stayed until 5pm on 7 October 2002;

4. the applicant be given leave to file and serve prior to 5pm on 7 October 2002 any written submissions outlining any further material which justifies reconsideration of the matter;

5. if the applicant files any submissions as referred to in order 4, the stay will be extended until further order of the Court;

6. the respondent is given leave to file and serve any written submissions in reply within a period of seven days following the filing of any submissions by the applicant.

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	N649 OF 2002

BETWEEN:	NANG APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT
DATE:	6 SEPTEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant claims to be a citizen of Iran and arrived in Australia on 26 February 2002. On 1 March 2002, he lodged an application for a protection visa with the Department of Immigration, Multicultural and Indigenous Affairs. On 8 April 2002, a delegate of the respondent, the Minister for Immigration, Multicultural and Indigenous Affairs (“the Minister”), refused to grant a protection visa under the Migration Act. On 9 April 2002, the applicant applied for review of that decision by the Refugee Review Tribunal (“the Tribunal”), pursuant to the provisions to that effect contained in the Migration Act1958 (Cth) (“the Act”). On 25 June 2002, the Tribunal affirmed the decision not to grant a protection visa. On 4 July 2002, the applicant lodged an application to this court seeking relief in respect of the Tribunal's decision. On 26 July I gave directions for the preparation of the matter for hearing and listed it for hearing before me today.

2. Included in the directions was a requirement that the applicant file and serve an amended application by 15 August and that he file an outline of submissions five days prior to the hearing date.  Nothing has been filed.  However, on 27 August 2002, the applicant sent a facsimile communication to the Registrar, requesting a thirty day extension of the hearing date.  The Minister opposed any such adjournment and the applicant was informed that he would need to make an application for an adjournment on the hearing day.  On 5 September 2002, the Court received a facsimile communication from Gilbert & Tobin, solicitors, indicating that the applicant had approached them with a request for legal advice.  Gilbert & Tobin said that they were not in a position to appear at a hearing on 6 September 2002, but would be prepared to assist the applicant to prepare for a hearing if the Court were to adjourn the hearing to a later time.  When the matter was called on this morning for hearing, the applicant applied for an adjournment of the hearing for thirty days.

3. The solicitor for the Minister has indicated that the applicant has had the opportunity of participating in the pilot legal advice scheme.  For reasons which I will specify in a moment, there appears to me to be no utility in an adjournment because the application has no prospects of success.  On the other hand, I am reluctant to dispose of the matter in circumstances where there does appear to be some prospect of the applicant being given some legal advice.  I propose therefore, to give a decision in relation to the matter, but to delay any final order until the applicant has an opportunity to obtain legal advice.

4. The decision of the Tribunal is a privative clause decision within the meaning of s 474(2) of the Act. It is clearly a decision of an administrative character made under the Act. Under s 474(1) of the Act, a privative clause decision. Under s 474(2) of the Act the term "privative clause decision" is defined as meaning a decision of an administrative character made, proposed to be made, or required to be made as the case may be, under the Act. Under s 474(1) a privative clause decision:

   (a)is final and conclusive;

   (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.

   That provision makes clear the Parliament's intention that a decision of the Tribunal should not be subject to any relief in this Court. On the other hand such a decision is capable of being reviewed if it is not a bona fide attempt to exercise power, or if it does not relate to the subject matter of the Act or is not reasonably capable of being referred to the power given to the Tribunal.

5. It is clear that the decision of the Tribunal does relate to the subject matter of the Act and is reasonably capable of reference to the power given to the Tribunal. There is no basis for suggesting otherwise. There has been no suggestion on behalf of the applicant that the decision of the Tribunal was not a bona fide attempt by it to exercise the power given to it under the Migration Act.

6. I have considered the Tribunal's reasons, which set out the applicant's claims and evidence and the findings of the Tribunal and the reasons for those findings.  The Tribunal's reasons record that the applicant claims that if he returns to Iran he will face persecution because the Iranian authorities will know that he applied for refugee status in Australia, because he undertook a political ideological course and in which he was taught about transporting weapons.  He claims that he will be suspected of disclosing sensitive information concerning Iran's weapons trade and in his application protection visa; he also claimed to fear persecution because of his Arab ethnicity.

7. The Tribunal accepted that the applicant is an Iranian national of Arab ethnicity and that he underwent a political ideological course in Teheran in 2000.  However, the Tribunal considered that significant aspects of the applicant's evidence were implausible and inconsistent with the independent evidence.  The Tribunal was not satisfied that the applicant has a well-founded fear of persecution for a Convention reason, arising out of the fact that he was required to do a political ideological course.  Nor was the Tribunal satisfied that the applicant has a well-founded fear of persecution because he is of Arab ethnicity.  The Tribunal gave detailed reasons for those conclusions.

8. The Tribunal, having considered the evidence before it as a whole, was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees.  There is nothing in the reasons to suggest that the Tribunal did not make a bona fide attempt to exercise the power of review to it under the Act. In the circumstances there appears to me to be no basis for concluding that s 474 does not apply in the present case. It must follow, therefore, that the application should be dismissed.

9. For the reasons that I have previously indicated, however, I will stay my order dismissing the application for thirty days.  If within that time the applicant files any submission which would justify reconsideration of the matter, I will extend the stay for a further fourteen days, during which time the Minister will have the opportunity of responding in writing to any written submissions made on behalf of the applicant.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            13 September 2002

Counsel for the Applicant:	The applicant appeared in person with the assistance of an Farsi interpreter.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	6 September 2002
Date of Judgment:	6 September 2002