Nasr v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1320

FEDERAL COURT OF AUSTRALIA

NASR v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1320

Judiciary Act 1903 (Cth) s 39B
Migration Act1958 (Cth) s 91R(3), 477(1)

Convention relating to the Status of Refugees (1951)

NASR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 773 OF 2003

HELY J
13 NOVEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 773 OF 2003

BETWEEN:	NASR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	13 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is 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 773 OF 2003

BETWEEN:	NASR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	13 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Burma who arrived in Australia on 2 May 1995 travelling on a student visa.  That visa was renewed from time to time until it was cancelled on 15 April 1998 for failure to comply with course requirements.  On 28 April 1998 the applicant applied for a protection visa.  The ground on which she sought such a visa was that she feared harm by the Burmese military authorities because she was an active supporter of Aung San Suu Kyi.  The applicant claimed to fear persecution because of her political activities in Burma and because of her political activities here in Australia. 

2. On 4 May 1998 the application for a protection visa was refused by the Minister’s delegate.  On 13 May 1998 an application was made to the Refugee Review Tribunal (‘the RRT’) for a review of that decision.  The applicant attended a hearing before the RRT on 28 February 2001.  It is apparent from the RRT’s reasons that during the course of that hearing it put to the applicant difficulties which the RRT experienced in accepting the applicant’s claims and provided the applicant with an opportunity of commenting on those matters.  On 17 July 2002 the RRT handed down a decision dated 24 June 2002, which affirmed the decision of the Minister’s delegate not to grant a protection visa.

3. On 30 June 2003 an application was lodged with this Court under s 39B of the Judiciary Act 1903 (Cth). That application was lodged well outside the 28 day period fixed by s 477(1) of the Migration Act1958 (Cth) (‘the Act’). If the RRT’s decision is infected by a jurisdictional error, the failure to lodge the application within the time prescribed by s 477(1) would not be fatal because, in those circumstances, the RRT’s decision would not be a privative clause decision, and s 477(1) would not have any relevant operation.

4. The application made to this Court specifies the grounds on which the application is made.  The application asserts that the applicant is a genuine applicant for a protection visa, that the decision of the RRT involved an error of law, an incorrect application of the law to the facts as found by the person who made the decision, and an incorrect interpretation of the law.  The application also asserts that the RRT failed properly to address the application and failed to take relevant considerations into account.

5. The applicant appeared before me this morning in person.  The applicant did not have legal assistance and was only able to address the Court through an interpreter.  I appreciate the difficulties which a person in the position of the applicant confronts but I have no authority to interfere with the decision of the RRT unless it is established that the decision was attended by jurisdictional error.

6. It is clear on the face of the RRT’s decision that the RRT addressed the applicant’s claims.  Nothing which was put to me by the applicant this morning demonstrates any legal error on the part of the RRT, or any failure on the part of the RRT to address matters which it was required to address.  Nor is any such error or failure apparent on the face of the RRT’s reasons.  The applicant failed in her claim before the RRT because the RRT did not find the applicant to be a credible witness.

7. The RRT considered that the applicant’s claims to have been politically active in Burma were fabricated. It reached this view because it found her evidence vague and unconvincing and because she had not had any difficulty obtaining a passport and leaving Burma. The RRT also considered that the applicant’s involvement in politics since coming to Australia was less extensive than she claimed, but appeared to accept that she had some involvement in political activities directed at Burma. However, the RRT noted that these activities had not begun until after her protection visa application, some 16 months after she came to Australia. The RRT was not satisfied that these activities had any purpose other than in strengthening her protection visa claim. That meant that they had to be disregarded pursuant to s 91R(3) of the Act. The RRT was therefore not satisfied that the applicant had a well-founded fear of persecution in Burma. It followed that the RRT was not satisfied that she was a person to whom Australia had protection obligations under the Convention relating to the Status of Refugees (1951) and that the claim to a protection visa had to be refused.

8. It is for the RRT to decide whether or not it accepts the applicant’s claims.  In oral submissions this morning the applicant criticised various findings made by the RRT in the course of assessing her application, but these criticisms did not rise above an attack on the merits of the RRT’s decision.  The case which was put to me was that the RRT should have come to a different decision on the facts than the decision to which it came.  These submissions even if established would not involve any jurisdictional error on the part of the RRT nor do they provide any foundation on which I could make orders effectively setting aside the RRT’s decision.

9. The result is that the decision of the RRT is a privative clause decision and the application for review must be dismissed if only because it was not made within the time prescribed by s 477(1). Apart from that consideration the application would have to be dismissed in any event because the applicant has not established any ground for interfering with the RRT’s decision.

10. The application is dismissed with costs.  

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             18 November 2003

The applicant appeared in person
Counsel for the Respondent:	Mr G Kennett
Solicitor for the Respondent:	Blake Dawson Waldron Solicitors
Date of Hearing:	13 November 2003
Date of Judgment:	13 November 2003