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

[2003] FCA 633

FEDERAL COURT OF AUSTRALIA

NAQQ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 633

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

N 69 OF 2003

WHITLAM J
12 JUNE 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 69 OF 2003

BETWEEN:	NAQQ OF 2002 APPELLANT
AND:	MIINSTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	12 JUNE 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.  The appeal be dismissed with costs.

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	N 69 OF 2003

BETWEEN:	NAQQ OF 2002 APPELLANT
AND:	MIINSTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	12 JUNE 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court dismissing with costs an application in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 18 July 2002: NAQQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 3. The Tribunal affirmed the decision of the respondent's delegate not to grant a protection visa to the appellant. The appellant had claimed to fear persecution in the country of his nationality, Lithuania, on the basis of his political opinion and his membership of a particular social group.

2. Central to the appellant’s claims was an allegation that he had been detained in 1998 in Lithuania on account of his political opinion and he feared persecution because he had refused to work for the State Security Department in that country.  The appellant also claimed that in his background there were certain distinctive features in experience and qualification which identified him as a member of a particular social group. 

3. The Tribunal was of the view that the appellant had no characteristics making him attractive for the State Security Department to recruit and also, that the appellant was arrested in 1998 because he was involved in illegal activity and that he was not detained on trumped up charges as a result of his refusal to join the State Security Department.  Accordingly, the Tribunal did not accept that there had been any serious mistreatment or any concerted or systemic harassment of the appellant for his political opinion or imputed political opinion or membership of a particular social group.  Furthermore, the Tribunal was satisfied that the chance that harm, let alone harm amounting to persecution would befall the appellant in the reasonably foreseeable future for reasons relating to his political affiliations, was remote.

4. The application in the court below alleged that the Tribunal did not act in good faith, and the application gave particulars of that allegation under three headings.  The magistrate dealt with each of those allegations on the basis that whilst the decision of the Tribunal was a privative decision, the allegations raised the question whether the first of the so-called Hickman conditions had been complied with.  That is, whether the Tribunal had exercised its powers in good faith.  

5. The magistrate dealt with each of the particulars.  The first allegation was that the Tribunal placed undue pressure on the appellant.  The appellant sought to establish that case by tendering a transcript and a tape of the hearing before the Tribunal.  The transcript bore annotations indicating the tone of voice in which the Tribunal member spoke.  The magistrate accepted that the transcript was “reasonably accurate”.  The extraordinary feature of this evidence is that it was received after the hearing in the court below and was evidently not made available to the respondent.  Nonetheless, the magistrate had regard to it.  The magistrate concluded that the conduct of the Tribunal member revealed in the transcript did not constitute evidence of a mind not open to persuasion.  Accordingly, the magistrate found no want of bona fides.

6. The second set of particulars alleged that the Tribunal, in spite of having no evidence, repeatedly stated that the appellant was not a credible witness.  The magistrate dealt with that allegation and observed that the findings of the Tribunal as to the credibility of the appellant were in fact informed by the evidence and the relevant law and that therefore there was no want of bona fides in the exercise of the Tribunal’s powers on that account.

7. The applicant alleged, in the third set of particulars of bad faith in his application in the court below, that the Tribunal had ignored “the most significant facts; such as [the appellant’s] past experience and expertise; knowledge of foreign languages; education; age and physical state.”  The magistrate concluded in respect of that allegation that the appellant was in effect asking him to come to a different conclusion to that of the Tribunal.  Accordingly, the magistrate held that he was not satisfied that the Tribunal entered into its task in a manner which lacked bona fides and dismissed the application.

8. The notice of appeal restates the first and third of those allegations as particulars that the Tribunal did not act in good faith.  The appellant has acted for himself today as he did in the court below.  It is unlikely that he properly appreciates the distinction between merits review and the kind of review available in the court on the grounds of jurisdictional error or failure of a decision maker in a privative decision case to observe the conditions outlined in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. His address today was considered and carefully prepared and, in advance of the hearing, he had had it translated into English and it was read to me in the English language by the interpreter.

9. The substance of his address today in support of his appeal canvassed the findings of fact made by the Tribunal singling out particular reasons of the Tribunal which he indicated were wrong - a device that he pursued by way of a series of rhetorical questions addressed to the respondent.  The transcript material to which the court below had regard is not before me on the appeal, and I am, therefore, not in a position to express an opinion about the factual conclusion reached by the magistrate on the first of the alleged matters, that of undue pressure.  Nonetheless there is nothing in the reasons of the magistrate which indicates any error in approach to that question.  As to the third of the matters agitated before the magistrate, which has been repeated before me, it is plain that what the magistrate said is correct, for the reasons he gave.  Accordingly, the grounds of appeal are not made out and the appeal will be dismissed with costs.

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

Associate:

Dated:             23 June 2003

Applicant appeared in person.
Counsel for the Respondent:	S B Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	12 June 2003
Date of Judgment:	12 June 2003