NARD v Minister for Immigration & Multicultural & Indigenous Affairs - [2004] FCAFC 27

FEDERAL COURT OF AUSTRALIA
NARD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 27
MIGRATION - protection visa - Refugee Review Tribunal ("RRT") - appeal from decision of judge of Court exercising jurisdiction of the Court to review RRT decision - RRT's conclusions on credibility open to it on the evidence - RRT took into account relevant considerations - RRT made findings on material questions of fact - no lack of bona fides made out - reviewing court cannot conduct a merits review - alleged errors non-jurisdictional - appeal dismissed.
Migration Act 1958 (Cth)
Federal Court Rules O 52 r 38A(1)(d)
Re Minister for Immigration and Multicultural Affairs: ex parte Durairajasingham (2000) 168 ALR 407 cited
Kopalapollai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 cited
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited
SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397 cited
NARD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N1558 0F 2003
BEAUMONT, LINDGREN AND TAMBERLIN JJ
12 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N1558 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

NARD
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGES:

BEAUMONT, LINDGREN AND TAMBERLIN JJ

DATE OF ORDER:

12 FEBRUARY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
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

N1558 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

NARD
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGES:

BEAUMONT, LINDGREN and TAMBERLIN JJ

DATE:

12 FEBRUARY 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT
THE COURT:

The appellant is a citizen of Pakistan who travelled to Australia via Brunei, entering on a tourist visa on 26 April 1997. On 14 May 1997, the appellant applied to the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) for a protection visa under the Migration Act 1958 (Cth) (“the Act”). A delegate of the Minister refused this application on 5 June 1997. The appellant applied for a review of that decision by the Refugee Review Tribunal (“the RRT”), which held, on 8 September 1997, that the appellant’s application was out of time, and that it did not, therefore, have jurisdiction to undertake the review. The appellant then applied to the High Court challenging the decision of the Minister’s delegate. The matter was then remitted to the Federal Magistrate’s Court. On 9 February 1998, the Department consented to the matter being remitted to it for reconsideration. On 30 November 2001, a delegate of the Minister (“the delegate”) refused to grant a protection visa, and on…

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: [2004] FCAFC 27
Decision Date: 12 FEBRUARY 2004

CaseChat Overview and Summary

In the matter of NARD versus the Minister for Immigration & Multicultural & Indigenous Affairs, the Federal Court of Australia addressed an appeal against a decision of the Refugee Review Tribunal (RRT) which determined that the applicant was not entitled to a protection visa. The applicant, who had claimed to be a member of the Shia Students Party (SSP) and faced persecution upon return to Pakistan, contested the RRT's findings that he had fabricated evidence and that his fear of persecution was not well-founded. The appeal focused on the credibility of the applicant’s evidence and the sufficiency of the RRT’s findings.

The primary issue before the court was whether the RRT erred in its assessment of the applicant's credibility and the subsequent conclusions drawn from those assessments. The court examined whether the RRT's findings were open to it, given the inconsistencies in the applicant's evidence and the independent country information available. The court held that the RRT's findings of fact, particularly those relating to the applicant's credibility, were within its jurisdiction, and it was not the role of the court to re-evaluate these findings. The court referenced previous cases, including Re Minister for Immigration and Multicultural Affairs: ex parte Durairajasingham, to affirm that findings of fact made by the RRT are not subject to judicial review unless there is a demonstrated error in the process.

The court affirmed the dismissal of the appeal, agreeing with the primary judge that the grounds of appeal related to the merits of the RRT’s decision rather than any legal error. The court emphasised that the RRT's conclusions, based on its findings of adverse credibility against the applicant, were valid and legally sound. The applicant’s failure to appear at the appeal hearing did not alter the court's decision to proceed with the hearing, in accordance with the Federal Court Rules. Ultimately, the court dismissed the appeal with costs.

The Federal Court's decision underscores the limited scope of judicial review in cases concerning the credibility of an applicant’s evidence and the findings of fact made by the RRT. The court’s ruling reinforces the principle that the RRT's role in assessing refugee claims, particularly regarding credibility and the risk of persecution, is largely undisturbed by judicial review, unless there is a clear legal error or procedural misstep.

Orders

Orders of the court

The appeal be dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BEAUMONT, LINDGREN AND TAMBERLIN JJ

The RRT reasons are summarised in its Conclusion as follows:“CONCLUSIONIn sum, the Tribunal accepts that the applicant was a member of SSP and that on 18 October 1996 he participated in a mass demonstration organised by the SSP. The Tribunal accepts that a FIR was registered against the applicant for participating in the demonstration. The Tribunal accepts that on 4 November 1996 the applicant was granted pre-arrest bail by an Additional Session Judge in Lahore. The Tribunal does not accept that the applicant was convicted at any point by any court or judicial authority in Pakistan. The Tribunal does not accept that he was genuinely sought after by the authorities after the issue of his pre-arrest bail, that he was sentenced to three years detention by the Deputy Commissioner of Lahore and that a warrant of arrest was issued against him in April 1997. The Tribunal finds that the essential and significant reason behind the registration of the FIR against the applicant was his participation in a violent demonstration and not his membership of the SSP or any other Convention reason. The Tribunal finds that there is only a remote chance that the applicant will come to the attention of the authorities if he returns to Pakistan now or in the foreseeable future. Even if the applicant is arrested upon his return, the Tribunal is satisfied that he would be given a fair trial in respect of any charges which may have been brought against for the reason of his participation in the October 1996 demonstration. The Tribunal is satisfied that the Government of Pakistan will provide the applicant with adequate state protection to remove a real chance of him being persecuted in Pakistan by Shia Muslims. The applicant’s fear of persecution is not well-founded. He is not a refugee.” DECISION OF THE PRIMARY JUDGE The primary judge summarised the grounds of appeal raised by the appellant, and considered that they went entirely to the merits of the case before the RRT, and were therefore not appropriate bases for judicial review by the Court. After noting that two of the three documents that the appellant sought to tender had been before the RRT, and that all three documents sought to establish findings of fact, and did not demonstrate that the RRT had erred in reaching its conclusions, which were based largely upon findings of adverse credibility against the appellant, his Honour dismissed the appeal. THE APPEAL HEARING The appellant did not appear when the appeal was called on for hearing. The solicitor for the respondent gave evidence that he had been informed of the time, date and place of the appeal hearing. The Court has therefore decided to proceed with the hearing pursuant to O 52 r 38A(1)(d) of the Federal Court Rules.REASONING ON APPEAL We respectfully agree with his Honour’s assessment of the grounds of appeal raised by the appellant, which have been substantially repeated in the Notice of Appeal before this Court. The outcome of the appellant’s case before the RRT turned upon the finding that the appellant had fabricated much of his evidence, including most of the documentation that he had presented in support of his claims. This is a finding of fact, and as such, it is a matter for the RRT: see Re Minister for Immigration and Multicultural Affairs: ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at 67. The findings that the RRT made with respect to the appellant’s credibility were open to it, on the basis of the inconsistencies that it noted in the appellant’s evidence and the independent country information. Accordingly, no error is demonstrated in the conclusions that the RRT based upon these findings: see Kopalapollai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[69] per Tamberlin and RD Nicholson JJ.

Ratio Decidendi

Legal Principle Established

Established by: BEAUMONT, LINDGREN AND TAMBERLIN JJ

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1558 OF 2003

BETWEEN:	NARD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	BEAUMONT, LINDGREN AND TAMBERLIN JJ
DATE OF ORDER:	12 FEBRUARY 2004
WHERE MADE:	SYDNEY

JUDGES:	BEAUMONT, LINDGREN and TAMBERLIN JJ
DATE:	12 FEBRUARY 2004
PLACE:	SYDNEY