NBIP v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 584

FEDERAL COURT OF AUSTRALIA

NBIP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 584

CORRIGENDUM

NBIP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 448 OF 2005

CONTI J
10 MAY 2005 (CORRIGENDUM ISSUED 25 MAY 2005)
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 448 OF 2005

BETWEEN:	NBIP APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	10 MAY 2005
WHERE MADE:	SYDNEY

CORRIGENDUM

In the orders contained prior to the reasons for judgment of Justice Conti delivered 10 May 2005 please make the following amendment:

On the orders page

In the first order please replace the word ‘refused’ with the word ‘dismissed’. 

Also, please add the words ‘fixed in the sum of $900’ to the second order and also in the second order replace the word ‘Appellant’ with the word ‘Applicant’ so that the orders now read:

‘1.       Application for leave to appeal dismissed.

2.        Applicant to pay the Minister’s costs fixed in the sum of $900.’

I certify that the preceding is a true copy of the Corrigendum to the Reasons for Judgment of the Honourable Justice Conti.

Associate:
Date:              25 May 2005

FEDERAL COURT OF AUSTRALIA

NBIP v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 584

MIGRATION – application for leave to appeal from Federal Magistrate – no issue of principle arising

NBIP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 448 OF 2005

CONTI J
10 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 448 OF 2005

BETWEEN:	NBIP APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	10 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        Application for leave to appeal refused.

2.        Appellant to pay the Minister’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	NSD 448 OF 2005

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

JUDGE:	CONTI J
DATE:	10 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The background circumstances of this application for leave to appeal are most unusual.  The appellant arrived in Australia from Indonesia during December 1994, having the benefit of 19 years of education, inclusive of a Master’s Degree, and training in journalism, obtained in Indonesia.  As recorded in the reasons for judgment of the Federal Magistrates Court below, published on 29 October 2004, the appellant engaged in a lengthy process eventuating in the exhaustion of his rights to administrative review and appeal therefrom.

2. His initial application for a protection visa was lodged and declined in February 1996, and his subsequent application to the Refugee Review Tribunal for review of the decision of the Minister’s delegate was declined on 4 August 1999.  For reasons not readily apparent from the Court file, it was not until 14 July 2004 that he commenced proceedings for review of the Tribunal’s decision in the Federal Magistrates Court, which coincided with his immigration detention at that time.  That review application was dismissed on 11 November 2004 by the Federal Magistrates Court on the ground of incompetency. 

3. The appellant was thereafter taken into custody at Villawood, which appears to have prompted his lodgment of an appeal or an application for leave to appeal to the Federal Court on 23 March 2005.  Notwithstanding that the lodgment of the appeal occurred out of time, I adopted the course of reading the reasons for judgment of the Federal Magistrate, as well as the reasons provided by the appellant in support of his appeal. 

4. The grounds of appeal were framed in those unspecific terms frequently presented to this Court in refugee review and appellate proceedings, as follows:

   (i)the Tribunal failed to consider and properly exercise its discretionary power under s 427 of the Migration Act 1958 (Cth).

   (ii)the [Federal Magistrate] failed to consider the Tribunal decision for making such statement;

   (iii)procedures that were required by law to be observed in connection with the making of the decision were not observed.

5. Moreover in support of his foreshadowed appeal from the Federal Magistrate’s decision, the appellant made a number of submissions, more accurately to be described as pleas, that he should remain in Australia.  These are largely to the following effect:

   (i)        his mother has been resident in Australia for many years;

   (ii)she is widowed and she has no other children, or at least no other children resident in Australia;

   (iii)he has skills as a person long experienced in journalism or journalistic activities;

   (iv)he has resided in Australia for more than ten years, and has been employed and paid income tax to the Australian Government;

   (v)he is a member of a community RSL Club; and

   (vi)he has the ambition to be a journalist in Australia, and has studied TAFE courses in Sydney to that end.

6. Pre-eminently the appellant stated that his application was essentially motivated by an understandable desire to remain with his mother in Australia, and to care for her in her presently attained old age.  Apparently his mother has a right to permanent residence in this country, and would be compelled to live alone, if the appellant is to return to Indonesia.  To cite the reality of his predicament in the following ‘nutshell’ of his submission:

   ‘I am not applied (sic) as a refugee, just forget it.  May I have… a visa on humanitarian ground (sic)’.

   As held by the Federal Magistrate, I have no jurisdiction under the Migration Act 1958 (Cth) to accede to such a request.

7. The appellant tendered character references.  One was by the President of the ‘Aliansi Journalist Independent’ (AJI), apparently also known as ‘Alliance of Independent Journalists’, bearing date 14 October 2004.  That reference, recorded to have been translated in Jakarta, reads as follows:

   ‘INDRA MARDOYO of K.S. Tubun Gg M No.35, Jakarta Pusat 10260, is a member of Alliance Independent Journalist (AJI) Group since the year 1994.

   In the year 1994-95, member of AJI were detained and put in prison because they published the Bulletin Independent containing articles, which criticised the Indonesian Government and the fight for freedom of press in Indonesia.

   In 1995, I Achmad Taufik, President of AJI was detained and put in prison, because I was accused spreading hatred of inciting the enemy to fight against the Indonesian Government, writing articles in the Bulletin Independent and fight for freedom of speech and freedom of inspiration.

   In the year 1994, Indra Mardoyo was fearful of becoming involved with members of AJI who were detained and put in prison, as mentioned above, so Indra Mardoyo left Indonesia.’

8. Another reference was provided by Mr Darren Saul of Techniche Recruitment Pty Ltd, bearing date 1 May 2005, which reads as follows:

   ‘To the Court and Minister of Immigration.

   I, Darren Saul, am writing to you to give support and sympathy to Indra Mardoyo’s case to reside in Australia and be reunited with his mother Juliati Mardoyo, under humanitarian and compassionate grounds.

   We ask the Court and Minister of Immigration to please reconsider his application as he was included on his mothers application in 1989, where Juliati was approved residency without the approval for residency for her son Indra.

   Indra has been university educated as a journalist in Indonesia, and has also been certified by Tafe and NIRTC in a number of other courses in Australia.

   We hope that you can look favourably on Indra’s case.’

9. Tendered to the Court by the appellant was a large bundle of journalistic articles, for which the appellant asserted authorship, and an Article published in ‘The Australian’ newspaper of 26 August 2004 bearing the hearing ‘Indonesian journalists face jail term’, and which relates to the freedom of the press in Indonesia.  Further tendered was an internet report of Laksamana.net of 10 March 2005 headed ‘US Slams Indonesia’s Human Rights Record’, a topic which speaks for itself.

10. It is apparent from my recitation of the history of the proceedings in which the appellant has engaged, and the reasons for judgment of the Federal Magistrate below, that even if the appellant had been able to provide a satisfactory basis in law for his application for leave to appeal, which is clearly not the case, the reasons for judgment of the Federal Magistrate have not been shown to be demonstrative of legal error.  As is emphasised in the reasons for judgment of the Federal Magistrate, the Tribunal carefully and thoroughly reviewed the reasons for decision of the Tribunal and found that the appellant did not have a well-founded fear of persecution in Indonesia as a professed Christian and journalism critical of the former Suharto regime.  Moreover as the Federal Magistrate rightly emphasised, the appellant had not exposed any misinterpretation or misapplication of the law relevantly applicable in Australia, and moreover the Federal Magistrate could not perform the task of looking at claims for refugee status afresh. 

11. I should also record that the Federal Magistrate made the following finding and effectively gave the following timely judicial advice:

    ‘Another theme in the material presented was a humanitarian case, which the applicant wanted considered, concerning the support he is giving to his mother in Australia who was granted resident status in 1989.  Included in the material were medical reports concerning her health, and a confused but groundless suggestion that the applicant may have been included in the grant of resident status given to her.  Unfortunately, none of that part of his submissions is relevant to what I have to decide.  Whether he has grounds for persuading the Department or the Minister to grant residence based on humanitarian considerations is not a matter which I can address or comment upon.  The applicant has been misadvised if he thought otherwise, and the people that are helping him should address this material to the Minister or his Department or to other helpers of migration applicants.’

12. In the result, the appellant’s application for leave to appeal from the Federal Magistrate’s Court was inevitably doomed to failure in common with so many appeals in this area of the Court’s jurisdiction, and must necessarily, in the events which have happened, be dismissed with costs.

13. Nevertheless I hope that I will not be thought to be presumptuous in providing certain observations to the Minister in relation to the appellant. 

14. The appellant’s mother accompanied the appellant to the hearing of the present appeal.  From my limited perspective in the present curial environment, I would nevertheless venture to observe that she appeared to me to be a very decent and pleasant woman, who would be bereft of any close relative in Australia in the event that her son be returned to Indonesia.  She has been a permanent resident in Australia apparently for at least 10 years.  For his part the appellant, despite his understandable personal anxiety at the prospect of being returned to Indonesia and thereby leaving his mother alone in Australia, struck me as a frank and straightforward, as well as a competent and confident person having journalistic qualifications.  He proffered no pretence as to the lack of viability of his case, in terms of legal principle, presented to the Court.  His primary motivation for pursuing the present appeal has been apparently pursued in the hope that by some form of executive/administrative decision, he may be allowed to remain in order to care for his aged mother, and hopefully advance his journalistic career.  In the latter regard, it is readily apparent that he has both read widely and published extensively, whether formally or informally.

15. I would therefore respectively request that his personal circumstances be brought to the attention of the Minister.  It seems to me that he may well have a worthy case for administrative intervention. 

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:            11 May 2005

The applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	10 May 2005
Date of Judgment:	10 May 2005