NBIZ v Minister for Immigration
[2004] FMCA 1070
•8 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBIZ v MINISTER FOR IMMIGRATION | [2004] FMCA 1070 |
| MIGRATION – Refugee – objection to competency. |
Ngu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 21
Plaintiff S157 vMinister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 2
Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1
| Applicant: | NBIZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ3009 of 2004 |
| Delivered on: | 8 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 8 December 2004 |
| Judgment of: | Nicholls FM |
REPRESENTATION
| Counsel for the Applicant: | NIL |
| Solicitors for the Applicant: | NIL |
| Counsel for the Respondent: | Mr. L. Leerdam |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the respondent's costs set in the amount of $4000 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 3009 of 2004
| NBIZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application filed in the Federal Court of Australia on 13 September 2004 seeking a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 9 August 2002 and handed down on 29 August 2002 to affirm the decision of a delegate of the respondent Minister made on 7 March 2001 to refuse a protection visa to the applicant.
This matter was transferred to this Court by order made on 6 October 2004 by his Honour Justice Allsop.
The applicant is a citizen of India and arrived in Australia on 28 July 2000. His claims before the Tribunal centered around his activities as an active member of the Left Communist Party (Marxist), his close relations with Sri Lanka’s insurgent [Tamil based LTTE, police targeting of him, and a problem with the relatives of a businessman who was killed in 1997, who believed that the applicant was involved in his death.
In the application to this Court the applicant recites some of the claims before the Tribunal. There are no grounds for review advanced, let alone any particulars. They are:
“ * I can’t live freely & happily in my own Village
* Deadman’s family is looking for me and I feel that it will be dangerous to my life if I go back to India
* When I lived in my village between 99-2000 I faced severe problems. I visited my family once in month.
* Even in CHENNAI capital of Tamil Nadu also I can’t live. There, when I spend 3-3 1/2 months in Chennai which I never been outside and I hide inside house, which is so terrifying.”
At the first court date in this matter, on 29 September 2004, the applicant appeared in person with the assistance of an interpreter in the Tamil language. He signed Short Minutes of Order that subsequently became orders of the Federal Court, that he file and serve an amended application by 1 November 2004. No such amended application has been filed.
This matter had been listed for hearing before me on 10 November 2004. The applicant appeared in person assisted by an interpreter in the Tamil language. At that hearing it became apparent that the applicant had previously indicated that he wanted to participate in the Court’s Legal Advice Scheme and had been prevented from doing so due to a number of unexplained mishaps in the court registry. In this event I adjourned the matter for hearing until today [8 December 2004] to enable the applicant to obtain legal advice, which he has now received. On that date I also made an order, amongst others, that the applicant was to file and serve an amended application and any written submissions by 30 November 2004. He consulted a lawyer on the Legal Advice Scheme panel on 13 November 2004. There is still no amended application before me. I note that at the hearing before me today the applicant said that the lawyer was going to send a letter to him. I note that the panel lawyer in question provided a report to the court that advice was given on 15 November 2004.
The applicant is currently detained at the Villawood Immigration Detention Centre. On 25 November 2004 he sent, by facsimile to the Court, a letter which I take to be by way of submissions in this matter. The applicant was unrepresented before me today. He was assisted by an interpreter in the Tamil language. Being mindful of the fact that the applicant was unrepresented, I gave him every opportunity to address the Court on matters relevant to his claim before the court.
I also have before me today a Notice of Objection to Competency filed by the respondent on 29 September 2004 and supported by an affidavit sworn on 23 September 2004 by a solicitor in the employ of the respondent's solicitors, and I also have the respondent's written submissions filed on 5 November 2004.
In the notice and supporting affidavit the respondent says, amongst other things, that the Tribunal decision was made on 9 August 2002 and handed down on 29 August 2002, and that the application to this Court was made on 13 September 2004, nearly two years later. The respondent relies on the case of Ngu v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 21, a full Federal Court decision on 4 November 2004, which upheld the judgment of Justice Nicholson who at first instance held that an appeal against a privative clause decision lodged outside the time limits in section 477 of the Migration Act, is incompetent if a ground of review cannot be made out, pursuant to the High Court judgment in Plaintiff S157 v MIMIA [2003] HCA 2.
If the Tribunal's decision in the case before me is a privative clause decision pursuant to section 474 of the Act, then the time limit under section 477(1A) would apply. Following section 477(2) of the Act the Court cannot make orders which have the effect of allowing the lodging of an application outside the time limit.
On the issue, therefore, of whether the respondent's Notice of Objection to Competency should be upheld, I am required to determine whether the decision complained of is a privative clause decision or not, and this, of course, would require an examination of the application and any substantive issues raised in the proceedings to determine whether the Tribunal decision is affected by jurisdictional error. If so affected it would not be a privative clause decision and section 477(1A) of the Act could not be relied upon by the respondent.
The application to this Court filed by the applicant does no more than recite some of the applicant's claims to refugee protection which were before the Tribunal. The submission sent on 25 November 2004 speaks of the applicant's complaints against presumably his migration adviser, and in particular the applicant's feelings of shock and feeling “cheated” when he realised that the advice provided by his adviser that making an application to the Federal Court would provide another two years for the applicant to "live happily" in Australia, was wrong. Of course, none of these matters, while of concern in other ways, are relevant to the application before me today.
The applicant’s submission then makes reference to five paragraphs from the Tribunal's decision record and quotes these five paragraphs. There is no indication in the submission as to what the applicant was hoping to establish or even argue by doing this. The best that can be inferred is that these were findings by the Tribunal with which the applicant disagreed. At the hearing before me today the applicant told me that this submission had been prepared by another person and asked that the interpreter translate each of the paragraphs for him. The interpreter did so. As a result, the applicant raised with me that in relation to the issue of the businessman who had been shot dead in Patukoti in 1997, the applicant said that he had told the [respondent’s] Department earlier of this event and yet the Tribunal did “not look at that”. By that I understand the applicant to be taking issue with the Tribunal’s reference that this incident “which was now at the heart of his claims had not been mentioned previously.”
At Court Book 63.2 the Tribunal records that in response to asking the applicant if there was anything else that he wished to put to it, the applicant made reference to this event. The Tribunal clarified with the applicant that his fear was in relation to family members of the deceased. The Tribunal also records that it asked the applicant why this incident “had not been mentioned at all in his earlier application and statement” and records the applicant's response that he only realised the seriousness of this problem after threats had been made against him in Australia. The applicant's application to the respondent Minister's Department is at CB 1. In particular, at CB page 29 through to CB page 31 the applicant sets out his claims in the form of a statutory declaration. I note that there is no reference to the claimed events of 1997 in that declaration.
The applicant's claims before the respondent Minister's delegate in particular are summarised at CB 37 and 38. Again, there is no mention of the claimed event in 1997. The applicant before me today claimed at first that this matter had been put earlier. He then appeared to claim that he had not said that he had put it earlier. In any event there is no evidence before me to contradict the Tribunal’s finding and the record as contained in the Court Book and to which I have referred.
At the hearing before me the applicant also raised two other matters which in essence were statements about his fears if he were to go back to India, with references to problems in India, and past disturbances continuing in India and a statement the Tribunal refused to accept his fear. This was nothing more than an attempt to agitate before me some of the facts before the Tribunal and clearly a statement of discontent with the Tribunal's finding.
It is clear from a plain reading of the Tribunal's decision that while it did “not attach importance to minor inconsistencies of detail” [CB 64.9], it had “serious difficulties with the Applicant’s evidence.” The Tribunal rejected a number of the applicant's claims as being highly implausible and found the applicant to be “misleading or less than frank”. [see CB 65] The Tribunal found that the applicant would not be targeted and persecuted for a Convention reason and to the extent that there may still be police interest in the applicant in relation to the murder of a businessman by the LTTE, the Tribunal was satisfied that the essential reason for such interest would not be for a Convention reason but rather because the police believed that the applicant had some connection with a serious crime. [see CB 66.1]
The Tribunal was also not satisfied that the applicant would have been singled out in 1997, 2000 or even May 1991 as a likely collaborator with LTTE terrorists. The Tribunal was also satisfied that to the extent that the applicant had problems with the family of the man murdered in 1997 this feared harm was also not for any Convention reason and in this regard the applicant could reasonably relocate to another part of his state. These findings were all open to the Tribunal to make on the material before it. It is well settled that the making of findings of fact, including findings on credibility, is a proper function of the primary decision maker “par excellence”. [Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1 per McHugh J].
The applicant's claims as variously put by the applicant were discussed with him at the Tribunal hearing and the applicant has brought no evidence to the contrary before this Court, nor can I see anything to the contrary in the material before me. The applicant has been unable to show any error on the part of the Tribunal, let alone any jurisdictional error. On this basis, the Tribunal's decision is a privative clause decision and as the application to the Court was lodged well outside the time limit contained in section 477 of the Act, this Court has no jurisdiction to try the application. Accordingly, the respondent's objection to competency must be upheld and the substantive application to this Court is dismissed.
RECORDED : NOT TRANSCRIBED
ORDERS DELIVERED
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Wagma Aziza
Date:
0