NANZ v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1218

FEDERAL COURT OF AUSTRALIA

NANZ v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 1218

NANZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N1134 of 2002

WILCOX J
20 DECEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1134 of 2002

BETWEEN:	NANZ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	20 DECEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The appellant pay the costs of the respondent, Minister for Immigration and Multicultural and Indigenous Affairs, of the appeal.

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	N1134 of 2002

BETWEEN:	NANZ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	20 DECEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an appeal to the Court from a decision given by Federal Magistrate Driver. The Court is constituted by myself, as a single judge, pursuant to a direction made by the Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976. Accordingly, my decision is that of the Court.

2. When the matter was before the magistrate, the appellant was represented by a solicitor, Mr J Bharati.  Mr Bharati put a number of matters to the magistrate.

3. The first of them focused on the delay that had occurred between the date of the application for review, by the Refugee Review Tribunal (“the Tribunal”), of the decision of a delegate of the Minister for Immigration, Multicultural & Indigenous Affairs (“the Minister”) to refuse the appellant's application for a protection visa.  The application for Tribunal review was lodged in July 1998.  There was a hearing before the Tribunal member on 17 May 2000, almost two years after lodgement of the application for review.  A further two years elapsed before announcement of the decision of the Tribunal, on 27 May 2002.  The magistrate was critical of this delay; he described it as excessive.  He said a contributory cause of the delay might have been some security investigation; but this was speculation, there was no material on that matter before him. 

4. I think it should be said quite plainly that delay of this order is totally unacceptable. As it turned out, this delay significantly affected the appellant’s available grounds of review. It took the decision date beyond that (2 October 2001) upon which the new s 474 of the Migration Act 1958 (“the Act”) commenced operation.

5. An argument put to the magistrate was that the fact of delay was itself a ground for review. I think the magistrate was correct in rejecting that argument. Even if it could be argued that the excessive delay denied the applicant procedural fairness, and I do not think this argument would be sound, it is clear that denial of procedural fairness is not now an available ground of review, having regard to s 474 of the Act (see NAAV v MIMIA [2002] FCAFC 228).

6. In argument to me today, the appellant, who is now representing himself, took the matter further.  He put two submissions.  First, he contended that the fact that the magistrate saw fit to speculate that a cause of delay might have been investigation about his security acceptability should itself have been regarded as an indication that he might be subject to persecution if returned to his native India.  It seems to me this argument must be rejected.  First, I see no reason to think the delay was caused, or even contributed to, by security investigations.  It seems equally likely that the member of the Tribunal who dealt with the case had a backlog of decisions and was not very efficient in dealing with her outstanding cases.  Second, even if the speculation about security investigations was well founded, this would do no more than support a view that the Tribunal reached an incorrect factual conclusion in finding the appellant was not at real risk of persecution if returned to India.

7. The second matter put in regard to the delay is that the delay is indicative of lack of good faith by the Tribunal in dealing with the case.  The argument runs that the Tribunal deliberately held back the decision so that, when it was handed down, the decision would be less vulnerable to review by the Court.  The proposition is that there was a deliberate attempt to undermine the appellant's rights. 

8. I would accept that, if it appeared the Tribunal took a course designed to undermine the appellant's rights, the exercise of power by the Tribunal should be found not to be a bona fide attempt to exercise the power given to it.  However, despite my request to the appellant, on more than one occasion, for a reference to anything, other than the mere fact of delay, that would support his theory, of deliberate withholding of the decision, he was unable to point to anything.  I am not aware of anything in the record of the case which would support the theory. 

9. The appellant said steps should be taken to obtain the Tribunal's file and investigate what had happened.  I say nothing as to whether that course might have been taken by the appellant's then lawyer at the hearing before the magistrate; but it is certainly not a course open to be taken at this stage.  The Court is hearing an appeal against the decision of the magistrate.  It is not exercising primary jurisdiction to review the Tribunal's decision. 

10. I see no reason to attribute to the Tribunal member an intention to deprive the appellant of his rights. The oral hearing took place some 17 months before the enactment of s 474. It is well known that the October 2001 legislation was enacted because of the political situation that occurred in the wake of the Tampa affair. I seriously doubt whether anybody, in May 2000, would have predicted that legislation of this type would come to be enacted. It also has to be remembered that there was a delay of some seven months between the enactment of s 474 and the handing down of the decision.

11. I think it is far more likely that the decision was delayed for the reasons I have already indicated, the workload of the Tribunal member and her inability to organise delivery of decisions in an efficient way.  However critical I am of the delay that has occurred in this case - and I am indeed very critical of it - I do not think, in itself, it furnishes a ground of review that is available to the appellant.

12. There were some other matters put by Mr Bharati to the magistrate. Those submissions were not renewed before me.  I simply say I do not see any error in the way in which the magistrate dealt with them and I would respectfully agree with the magistrate’s reasons in that regard. 

13. The appellant made clear to me that he disputes the two bases of the Tribunal's decision.  The Tribunal accepted the appellant as a credible witness but found that the risk of persecution he would face if he returned to Tamil Nadu, his home province of India, was not significant.  The appellant hotly disputes that finding but I pointed out to him, more than once, that I cannot review the Tribunal's findings of fact. 

14. The other ground taken by the Tribunal was that, even if there was a risk of persecution in Tamil Nadu, the appellant could relocate elsewhere in India.  The appellant made clear to me that he also vigorously disputes that view.  He stated some factual matters, including particularly that he does not speak Hindi; his native language is Tamil.  I understand the point but it is one of fact.  I have to resist any temptation to become involved in the facts, and thereby to go beyond the proper role of the Court.

15. I think I understand everything the appellant has put to me. In particular, I understand his feeling of grievance; not only that his case was rejected by the Tribunal but that he was potentially prejudiced in seeking review of that decision by the delay which occurred. I am very sympathetic to his position in that regard; but I do not think anything in the Act enables me to give effect to my sympathy. I have no alternative other than to dismiss the appeal.

16. The magistrate ordered costs against the appellant.  Notwithstanding my sympathy with the appellant, I do not think it furnishes a ground for depriving the Minister of his costs of the appeal.  Whatever the appellant's feelings about the decision of the Tribunal, it was risky for him to go ahead with an appeal against the magistrate's decision.  He ought to have known this would expose him to the risk of further costs if he failed.  Accordingly, the appropriate order is that the appeal be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             30 January 2003

The appellant appeared in person.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	20 December 2002