NARI v Minister for Immigration - [2003] FMCA 267

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NARI v MINISTER FOR IMMIGRATION

[2003] FMCA 267

IMMIGRATION & CITIZENSHIP – Review of a decision of the Refugee Review Tribunal – whether any reviewable error – no lack of procedural fairness – no jurisdictional error – no bias established.

Migration Act 1958 (Cth), ss.91X; 424A; 474; 475A; 483A; 484
Judiciary Act 1903 (Cth), ss.39B; 44
Federal Magistrates Act 1999 (Cth), s.39

Muin v RRT; Lie v RRT (2002) 190 ALR 601

Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
Craig v South Australia (1995) CLR 163
Plaintiff S157 v Commonwealth (2003) 195 ALR 24

Applicant:

NARI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 927 of 2002

Delivered on:

4 June 2003

Delivered at:

Sydney

Hearing date:

29 May 2003

Judgment of:

Scarlett FM

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Kennett

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Application is dismissed.
The Applicant is to pay the Respondent’s costs of and incidental to the Application, fixed in the amount of $4,750.00.
Subject to any written submissions made by the applicant’s former solicitor, Mr Jyoti Bharati of 2/32 Beamish Street, Campsie, and any written submissions in response by the respondent or the applicant, Mr Bharati pay the sum of $1,000.00 towards the costs thrown away by the respondent as a result of Mr Bharati signing consent orders dismissing the application on 3 February 2003 without instructions.
Any written submissions of the solicitor pursuant to paragraph 2 of this order be filed and served on the respondent and the applicant 14 days after service of a sealed copy of these orders on them.
Any written submissions of the respondent or the applicant pursuant to paragraph 2 of this order are to be filed and served within seven (7) days of the service of the submissions Mr Bharati on that party.
I grant the parties liberty to apply on three (3) days’ notice.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 927 of 2002

NARI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

The applicant, who is identified only by the letters NARI of 2002, seeks a review of a decision by the Refugee Review Tribunal

(hereafter referred to as “the RRT” or “The Tribunal”) not to grant him a protection visa. The applicant is identified in this way rather than by the use of his name by reason of the provisions of section 91X of the Migration Act 1958, which provides that the Court must not publish the name of an applicant for a protection visa.
The applicant has made a written submission in this matter, as has Counsel for the respondent. Both of them also addressed the Court orally.

Background

The applicant is a citizen of Bangladesh who said he was born on

25^th April 1964, which would make him 39 years of age. He says that he is a Buddhist…

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 267
Decision Date: 4 June 2003

CaseChat Overview and Summary

The case of NARI v Minister for Immigration involves the applicant, NARI, challenging a decision made by the Respondent, the Minister for Immigration. The decision in question was made by the Refugee Review Tribunal (RRT) under the Migration Act 1958 (Cth). The applicant sought to review the RRT's decision on the basis that it was flawed and did not properly consider the documentary evidence provided. The Federal Magistrates Court was tasked with determining whether it had jurisdiction to review the RRT's decision, which is classified as a "privative clause decision" under section 474 of the Act.

The primary legal issue before the court was whether it had jurisdiction to review the RRT's decision. The Act contains provisions that limit the jurisdiction of the Federal Magistrates Court in relation to privative clause decisions, stating that such decisions are final and conclusive and cannot be challenged in any court. However, section 475A of the Act provides exceptions to this rule, allowing for certain types of review under specific circumstances. The court needed to determine if the RRT's decision fell within the exceptions outlined in section 475A or if it was subject to the general prohibition on review contained in section 476.

The court found that the RRT's decision was indeed a privative clause decision as defined by section 474 of the Act. The applicant argued that the RRT had not properly considered the documentary evidence, but the court noted that this argument did not change the nature of the RRT's decision as a privative clause decision. The court concluded that it did not have jurisdiction to review the RRT's decision under section 476 of the Act, as the decision was final and conclusive. The court further held that the exceptions provided in section 475A of the Act did not apply to the circumstances of this case.

The court dismissed the application and ordered the applicant to pay the respondent's costs of the application, amounting to $4,750.00. Additionally, the former solicitor of the applicant, Mr Jyoti Bharati, was ordered to pay $1,000.00 towards the costs incurred by the respondent due to the signing of consent orders dismissing the application without proper instructions. The court also granted the parties liberty to apply for further orders within three days' notice.

Orders

Orders of the court

The Application is dismissed.

The Applicant is to pay the Respondent’s costs of and incidental to the Application, fixed in the amount of $4,750.00.

Subject to any written submissions made by the applicant’s former solicitor, Mr Jyoti Bharati of 2/32 Beamish Street, Campsie, and any written submissions in response by the respondent or the applicant, Mr Bharati pay the sum of $1,000.00 towards the costs thrown away by the respondent as a result of Mr Bharati signing consent orders dismissing the application on 3 February 2003 without instructions.

Any written submissions of the solicitor pursuant to paragraph 2 of this order be filed and served on the respondent and the applicant 14 days after service of a sealed copy of these orders on them.

Any written submissions of the respondent or the applicant pursuant to paragraph 2 of this order are to be filed and served within seven (7) days of the service of the submissions Mr Bharati on that party.

I grant the parties liberty to apply on three (3) days’ notice.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Privative clause decisions are defined by section 474 of the Act:“(1) a privative clause decision:(a) is final and conclusive; and(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.(2) In this section:Privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).” Under the provisions of section 474(2) of the Act, the decision by the RRT is a “privative clause decision.” Where a person makes an application to review a privative clause decision on or after 2nd October 2001, the Federal court, and therefore the Federal Magistrates Court, only has jurisdiction in respect of the proceeding pursuant to subsection 39B or 44 of the Judiciary Act 1903. Section 475A of the Act provides:Section 476 does not affect the jurisdiction of the Federal Court under section 39B or 44 of the Judiciary Act 1903 or section 39 of the Federal Magistrates Act 1999, or the jurisdiction of the Federal Magistrates Court under section 483A of this Act, section 44 of the Judiciary Act 1903 or section 32AB of the Federal Court of Australia Act 1976, in relation to:(a) a privative clause decision that is a decision made on a review by a Tribunal under Part 5 or 7 or section 500; or(b) any other decision in respect of which the court’s jurisdiction is not excluded by section 476”. Section 476 of the Act provides that the Federal Court and the Federal Magistrates Court do not have any jurisdiction in relation to a primary decision. A primary decision is defined by subsection 476(6) as:“A privative clause decision:(a) that is reviewable, or has been reviewed, under Part 5 or 7 or section 500; or(b) that would have been so reviewable if an application for such review had been made within a specified period.” The Federal Magistrates Court has jurisdiction to grant prerogative relief pursuant to section 39B of the Judiciary Act 1903. That jurisdiction, similar to that conferred on the High Court by section 75(v) of the Constitution, permits the Court to grant prerogative relief by way of prohibition or mandamus, or by way of an injunction about a decision of an officer of the Commonwealth. The thrust of the applicant’s submissions is that the Tribunal fell into error for two reasons. First, it is submitted that the Tribunal did not consider the documentary evidence that the applicant had provided. On my asking the applicant why that was so, he indicated that it was proven by the fact that he did not get the right result. Because he did not get the right decision, therefore the RRT had not read the documents. Had the RRT read the documents, the RRT would not have come to the decision that it did.

Ratio Decidendi

Legal Principle Established

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