NBIY v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCAFC 184
•16 AUGUST 2005
FEDERAL COURT OF AUSTRALIA
NBIY v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCAFC 184MIGRATION – no issue of principle.
NBIY v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 447 of 2005
WILCOX, BRANSON AND MERKEL JJ
16 AUGUST 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 447 of 2005
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
NBIY
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGES:
WILCOX, BRANSON AND MERKEL JJ
DATE OF ORDER:
16 AUGUST 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 447 of 2005
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
NBIY
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGES:
WILCOX, BRANSON AND MERKEL JJ
DATE:
16 AUGUST 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
WILCOX J
I agree with Branson J’s reasons. At no stage has the appellant identified any jurisdictional error that is alleged to have been committed by the Tribunal. Neither the primary judge nor this Court has been able to identify any such error. It follows that the appeal must fail.
The appeal should be dismissed with costs.
I certify that the preceding (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate:
Dated: 2 September 2005
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 447 of 2005
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
NBIY
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGES:
WILCOX, BRANSON AND MERKEL JJ
DATE:
16 AUGUST 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BRANSON J
This is an appeal from the judgment of Madgwick J dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).
The appellant is a Pakistani national from the North West Frontier Province who came to Australia in 1999 on a student visa. He was previously a merchant seaman and he initially studied marine navigation at a TAFE college. Having successfully completed that course he engaged in further study in Australia until his student visa was cancelled because of the closure of the college that he was attending. He there upon applied for a protection visa.
He initially claimed to fear persecution in Pakistan for reason of political opinion. He said that he was a member of the Pakistan Muslim League Nawaz Sharif Group and that he had been a bodyguard to the former Prime Minister, Nawaz Sharif. He asserted that his family had told him that the Pakistani army authorities were looking for him.
A delegate of the Minister concluded that the appellant’s claims were spurious in nature. She was not satisfied that the appellant was a person in respect of whom Australia owes protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (‘the Convention’).
The Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa. The Tribunal found it difficult to accept that the former Prime Minister of Pakistan would require someone like the appellant, a seaman in the merchant navy, as a bodyguard when he visited the North West Frontier Province. Moreover, the Tribunal did not accept that the appellant would have a well‑founded fear of being persecuted for reason of his association with the former Prime Minister should he return to Pakistan. The Tribunal observed that Nawaz Sharif went into exile in December 2000 after his trial and that there was no information available to suggest that the Government of Pakistan is now pursuing his associates.
The Tribunal gave the appellant an opportunity to comment on problems that it believed made it difficult for it to place weight on certain letters produced by the appellant. Ultimately the Tribunal was not satisfied that the appellant has a well‑founded fear of persecution for a Convention reason if he returns to Pakistan.
The appellant applied to this Court for judicial review of the decision of the Tribunal. The grounds of review were said to be contained in an affidavit but this affidavit was not available to the primary judge when his Honour delivered an ex tempore judgment dismissing the application for judicial review. However, the affidavit came to the attention of his Honour before the edited version of his reasons for judgment were published. The affidavit is referred to in an addendum to his Honour’s reasons for judgment. The affidavit identified five purported grounds of review but did not relate them in any way to the decision of the Tribunal.
While it was not, strictly speaking, a matter before the primary judge, his Honour satisfied himself that the Tribunal had not inadvertently disadvantaged the appellant in his quest for a different class of visa, namely a visa in the skilled migration category. Had his Honour not been satisfied on this point, it appears that his Honour would have made a recommendation to the Minister concerning the exercise of the power vested in her by s 417 of the Migration Act 1958 (Cth) (‘the Act’).
His Honour noted that the appellant’s submissions to the Court might be understood to assert a claim of actual or ostensible bias against the Tribunal. His Honour concluded that if this submission was made, it could not be made out on the material before him. Indeed, his Honour was unable to identify any error of law let alone any error of jurisdiction affecting the decision of the Tribunal. His Honour dismissed the application for judicial review. It is from that application that the present appeal is brought.
The notice of appeal to this Court contends that his Honour failed to appreciate the judicial error in the appellant's case. It also contends that his Honour should have found the decision of the Tribunal to attach no weight to letters upon which he relied was an arbitrary decision.
The written submissions of the appellant to this Court deal in a large part with the issue of whether the appellant has at any time been entitled to a visa in the skilled migration category. This is a topic upon which the primary judge sought advice from the Minister’s legal representatives because of its possible relevance to an application that the appellant might make under s 417 of the Act. It is not a topic relevant to this appeal.
The appellant has argued today that his Honour failed to give consideration to the decision of the Tribunal affirming a decision that he was not entitled to a protection visa. This argument is not well founded. Although his Honour sought to ensure that the appellant was not disadvantaged by any erroneous advice that he might have been given, his Honour did not overlook the nature of the application before him. His Honour considered the decision of the Tribunal but was unable to identify any error affecting it. The remainder of the appellant’s written submissions canvassed the merits of the decision of the Tribunal. The merits of the appellant’s claim to be entitled to a protection visa are not open to be reconsidered by this Court.
I would dismiss this appeal with costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate:
Dated: 2 September 2005
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 447 of 2005
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
NBIY
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGES:
WILCOX, BRANSON AND MERKEL JJ
DATE:
16 AUGUST 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
MERKEL J
I also agree that no error on the part of the Tribunal or the primary judge has been demonstrated and agree that the appeal should be dismissed with costs.
I certify that the preceding (1) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate:
Dated: 2 September 2005
The Appellant appeared in person. Counsel for the Respondent: J A C Potts Solicitor for the Respondent: Clayton Utz Date of Hearing: 16 August 2005 Date of Judgment: 16 August 2005
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