NAXA v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 167

FEDERAL COURT OF AUSTRALIA

NAXA v Minister For Immigration & Multicultural & Indigenous Affairs
[2004] FCA 167

NAXA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1587 of 2003

WHITLAM J
10 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1587 of 2003

BETWEEN:	NAXA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	10 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant is to pay the respondent’s 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 1587 of 2003

BETWEEN:	NAXA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	10 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for prerogative relief in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 2 September 2003.  The Tribunal affirmed a decision of a delegate of the respondent made on 22 July 2002 not to grant the applicant a protection visa.  The proceeding before this Court was commenced by way of an application that was entirely opaque in terms of any possible grounds of jurisdictional error.  Pursuant to directions given on 14 November 2003, the matter was fixed for hearing and, subsequently, on 18 December 2003 an amended application was filed. Although the amended application was evidently settled by a solicitor who signed the process, the solicitor did not go on the record as acting for the applicant. 

2. The applicant is a Chinese national who does not speak English.  He has presented his case today with the assistance of an interpreter.  The applicant said nothing at all of substance in support of the application and I was left to guess at the basis for the ground, hinted at in paragraph 6 of the amended application, said to involve jurisdictional error by reason of a denial of natural justice.  I found it impossible to see from the particulars of that ground how it could be argued that there was any information specifically about the applicant, which had come to the attention of the Tribunal and which it had failed to draw to the applicant’s attention. 

3. Mr Smith, who appears for the respondent has prepared his usual very helpful submissions in which, at paragraph 7, it was stated:

   ‘The obligation under s 424A(1) applies only to “information”. That word, in the context of the Act, refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal rather than the Tribunal’s subjective assessment of material before it: Win Win Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [53]-[54]. Here, the material referred to in the application is simply the Tribunal’s assessment of the sufficiency of the applicant’s written claims. That is not “information” within the meaning of s 424A(1). For that reason, no obligation arose under s 424A(1) and the application must fail’.

4. I think that, so far as the requirements of s 424A(1) of the Migration Act 1958 (Cth) are concerned, the propositions set out in those submissions may be accepted. However, that is really to accept propositions of law that have no application to this case because I cannot see that there was any information about the applicant that should have been drawn to his attention.

5. No ground of jurisdictional error has been made out.  The decision of the Tribunal was a privative clause decision, and the application must be dismissed with costs. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:            2 March 2004

The applicant appeared in person

Counsel for the respondent:	J D Smith
Solicitors for the respondent:	Clayton Utz
Date of hearing:	10 February 2004
Date of judgment:	10 February 2004