NAQQ v Minister for Immigration - [2003] FMCA 3

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAQQ v MINISTER FOR IMMIGRATION

[2003] FMCA 3

MIGRATION – Review of RRT decision – protection visa – well-founded fear of persecution – whether the Tribunal member placed undue pressure on the applicant – whether unjudicial conduct by the Tribunal member constituted a reviewable error – whether the Tribunal appropriately addressed the credibility of the applicant’s evidence.

Migration Act 1958 (Cth) s.474

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

Chen Xin He v Minister for Immigration (1994) FCA 954/95
Randhawa v Minister for Immigration (1994) 124 ALR 265
Velauther Selvaduri v Minister for Immigration (1994) FCA 301/94
H v Minister for Immigration (2000) 63 ALD 43
NAAV v Minister for Immigration [2002] FCAFC 228
SBBS v Minister for Immigration [2002] FCA FC 361
SDAA v Minister for Immigration [2002] FMCA 184
Minister for Immigration v SBAN [2002] FCAFC 431
WAGH v Minister for Immigration [2003] FCA 8

Applicant:

NAQQ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 890 of 2002

Delivered on:

28 January 2003

Delivered at:

Sydney

Hearing date:

7 January 2003

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Self Represented

Counsel for the Respondent:

Mr S. Lloyd

Solicitors for the Respondent:

Sparke Helmore Solicitors

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4000 in accordance with Part 21 rule 21.02 (2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 890 of 2002

NAQQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in this matter is a Lithuanian citizen. He appeared before the Tribunal on behalf of himself and his wife who had also made an application for protection. However, he is the sole applicant in these proceedings. It would appear that the applicants wife’s claim for protection is based entirely upon her being part of her husband’s family unit. The applicant and his wife arrived in Australia on the 31 October 1998. They were immigration cleared. On the 16 May 2000 they lodged an application for protection (Class XA) visas with the Department of Immigration & Multicultural Affairs. On 12 July 2000 a delegate of the Minister for Immigration refused to grant protection visas and on 10 August 2000 the applicant and his wife applied for review of that decision. The Tribunal’s decision was made on 26 June 2002 and handed down on 18 July 2002. The Tribunal upheld the original decision of the Minister’s delegate.
In his application for review in the Federal Court the applicant stated:
“(1) The decision-maker was not acting in good faith;
-    she imposed undue pressure on the applicant;
-    having no evidence she repeatedly stated that the applicant was not a credible witness;
-    having made her decision she ignored the most significant facts; such as my past experience and expertise; knowledge of foreign languages; education; age and physical state.”
The applicant, who was a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] FMCA 3
Decision Date: 28 January 2003

CaseChat Overview and Summary

The case of NAQQ v Minister for Immigration involves a dispute regarding the merits of a decision made by the Tribunal under the Migration Act 1958. The applicant, NAQQ, sought judicial review of the Tribunal's decision to reject his application for a protection visa on the basis that he was not a credible witness. The Federal Magistrates Court was tasked with reviewing the Tribunal's decision to ensure it was made lawfully and without error.

The primary legal issue before the court was whether the Tribunal made any reviewable errors in its assessment of the applicant's credibility and in its evaluation of the evidence provided. Specifically, the applicant argued that the Tribunal failed to consider certain significant facts that would have supported his claim of being targeted by the SSD for recruitment. The court was required to determine if the Tribunal's conclusions about the applicant's credibility and the plausibility of his claims were sound and whether they were based on an appropriate application of the law.

In its reasoning, the court found that the Tribunal had appropriately considered the evidence and applied the relevant legal principles in assessing the applicant's credibility. The court held that the Tribunal's decision was not flawed and that the applicant's request for the court to reach a different conclusion on the credibility of his claims was beyond the scope of judicial review. The court emphasised that the Tribunal had a duty to make decisions about the credibility of the applicant and that such decisions, when informed by the evidence and the law, were within the proper exercise of its powers. The court also noted that the applicant had not demonstrated that the Tribunal lacked bona fides in its decision-making process. Consequently, the court dismissed the application for review and ordered the applicant to pay the respondent's costs in accordance with the Federal Magistrates Court Rules.

Orders

Orders of the court

Application dismissed.

Applicant to pay the respondent’s costs assessed in the sum of $4000 in accordance with Part 21 rule 21.02 (2)(a) of the Federal Magistrates Court Rules.

Background

Background to the litigation

The Tribunal had ignored the most significant facts such as past experience and expertise; knowledge of foreign languages; education; age and physical state.The significant facts referred to by the applicant are facts, which he put forward as supporting his claim that he was approached for recruitment by the SSD. All those matters were referred to in the second paragraph of [CB 53] where the Tribunal stated:“I am of the view these skills would be held by the majority of the Lithuanian population who have been under Soviet occupation since 1991.”The applicant is in effect asking the court to come to a different conclusion to that of the Tribunal concerning these claims. This is not within the power of the court. The applicant has not satisfied me that the Tribunal entered upon its task in a manner, which lacked bona fides. I must therefore dismiss the application for review and order that the applicant pay the respondent’s costs which I assess in the sum of $4000 in accordance with Part 21 rule 21.02 (2)(a) of the Federal Magistrates Court Rules.

Evidence

Evidence Before The Court

The Tribunal having no evidence repeatedly stated that the applicant was not a credible witness:This is a reference to the Tribunal’s reasons for decision. At [CB 52] the Tribunal says:“Central to the applicant’s claim is his detention in 1998 and the SSD’s attempts to recruit the applicant. Whilst I accept that the applicant was detained by the Lithuanian authorities, I do accept the applicant’s claims as plausible that he was detained on trumped up charges for his political opinion or that the SSD persecuted him as he refused to be recruited by them.”The Tribunal then proceeds to provide three reasons in three separate paragraphs for the conclusion it has made about the plausibility of the applicant’s claim. The statement itself and the justification for it followed immediately upon a paragraph which the Tribunal set out the requirements upon it to consider all the evidence and determine that which it finds credible (Chen Xin He v Ministerfor Immigration (1994) FCA 954/95). It noted that the applicant’s account should be accepted if it is credible, plausible and does not run counter to the generally known facts and that a decision-maker is not required to accept uncritically the applicant’s unsupported assertion (Randhawa v Minister for Immigration (1994) 124 ALR 265. I am satisfied that the Tribunal appropriately addressed its consideration of the applicant’s credibility in regards to the passage quoted and I take the same view of the following passage which comes immediately after the three reasons referred to above:“Therefore, I am satisfied the applicant had no characteristics making him attractive him for the SSD to recruit and I find such a claim implausible.”The Tribunal noted the applicant’s delay in applying for asylum and said after consideration of Velauther Selvaduri v Minister for Immigration (1994) FCA 301/94 at [CB 53]:“I place weight on this omission in assessing the overall credibility of the applicant’s claims.”It is the Tribunal’s duty to make decisions as to the credibility of the applicant and making such a decision, informed by the evidence and the relevant law, is the proper way to exercise its powers. I am satisfied that the Tribunal came to no reviewable error in the manner in which it made its conclusions concerning the credibility of the applicant. The Tribunal had ignored the most significant facts such as past experience and expertise; knowledge of foreign languages; education; age and physical state.The significant facts referred to by the applicant are facts, which he put forward as supporting his claim that he was approached for recruitment by the SSD. All those matters were referred to in the second paragraph of [CB 53] where the Tribunal stated:“I am of the view these skills would be held by the majority of the Lithuanian population who have been under Soviet occupation since 1991.”The applicant is in effect asking the court to come to a different conclusion to that of the Tribunal concerning these claims. This is not within the power of the court.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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