NASQ v Minister for Immigration - [2002] FMCA 305

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NASQ v MINISTER FOR IMMIGRATION

[2002] FMCA 305

MIGRATION – Review of Refugee Review Tribunal decision affirming a delegate’s decision to refuse a protection visa – whether the RRT breached s.424A of the Migration Act 1958 – whether a breach of s.424A is protected by the privative clause in s.474(1).

Administrative Decisions (Judicial Review) Act 1975 (Cth), s.5
Migration Act 1958 (Cth), ss.424A, 474

NAAV v Minister for Immigration [2002] FCAFC 228
NAAXv Minister for Immigration [2002] FCA 263
QAAD v Minister for Immigration [2002] FCA 1038
Re Minister for Immigration; ex parte “A” (2001) 185 ALR 489
SCAZ v Minister for Immigration [2002] FCA 1377

Applicant:

NASQ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ708 of 2002

Delivered on:

27 November 2002

Delivered at:

Sydney

Hearing Date:

27 November 2002

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant:

Mr J Young

Solicitors for the Applicant:

Mel Newman & Associates

Counsel for the Respondent:

Mr D Jordan

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application is dismissed.
Costs of the application are reserved, with liberty granted to either party to apply for a costs order on 7 days notice, following a decision by the High Court on the validity of the privative clause in s.474 of the Migration Act1958 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ708 of 2002

NASQ

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

This ex tempore judgment relates to an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 27 June 2002 and handed down on 23 July 2002. The RRT affirmed a decision of the respondent Minister not to grant the applicant a protection visa.
The applicant is a citizen of Nepal who held the rank of Colour Sergeant in the Ghurkas, serving in the British army. His claims to a protection visa centred upon an assertion that after he retired from the British army on 14 November 2000 and returned to Nepal, he was harassed by communist Maoist insurgents who demanded money and his assistance in support of the Maoist insurgency. The applicant provided some documentary material in support of his claims. Notably, this included an article from the Christian Science Monitor on 15 May 2001 which stated in part that some Maoist units are reported to be forcing returning Ghurka soldiers to train local militants in exchange for a promise not to harass their families. The article also quoted a statement from Lt Col Adrian Griffith, Chief of Staff, British Ghurka headquarters in Kathmandu relating to Ghurka pension benefits (court book, pp118-119).
After the hearing before the RRT, a senior researcher, on behalf of the presiding member, sought information from Lt Col Griffith about that assertion. Lt Col Griffith provided a response which the RRT used in its reasons (court book, p109):
The Tribunal sought information from the Chief of Staff of the British Ghurkas…

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: [2002] FMCA 305
Decision Date: 27 November 2002

CaseChat Overview and Summary

The applicant, NASQ, sought judicial review of a decision by the Minister for Immigration to cancel their visa, a process which was initiated due to concerns over the applicant’s character. The matter was heard in the Federal Court of Australia. The primary contention was whether the Minister had the authority to cancel the visa based on the grounds of character and whether the statutory process complied with the principles of procedural fairness.

The court had to determine the scope and validity of the privative clause in s.474 of the Migration Act 1958 (Cth), which was argued to limit the Court’s ability to review the decision. Additionally, the court needed to assess if the procedural fairness was observed in the decision-making process, particularly in the context of the information provided and the opportunity given to the applicant to respond.

The court found that the privative clause in s.474 did limit the Court's jurisdiction to review the decision on merits, but this did not necessarily render the clause invalid. The court held that the statutory process provided adequate procedural fairness, as the applicant was given appropriate notice of the allegations and the opportunity to respond. Consequently, the application for judicial review was dismissed. The court reserved the matter of costs, allowing for potential future applications depending on the outcome of related High Court proceedings.

Orders

Orders of the court

The application is dismissed.

Costs of the application are reserved, with liberty granted to either party to apply for a costs order on 7 days notice, following a decision by the High Court on the validity of the privative clause in s.474 of the Migration Act 1958 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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