NBIZ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 757

FEDERAL COURT OF AUSTRALIA

NBIZ v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 757

CORRIGENDUM

NBIZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 80 OF 2005

HILL J
3 JUNE 2005 (CORRIGENDUM 20 JUNE 2005)
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 80 of 2005

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

JUDGE:	HILL J
DATE:	3 JUNE 2005 (CORRIGENDUM 20 JUNE 2005)
PLACE:	SYDNEY

CORRIGENDUM

1. In paragraph 9, line 2 of the Reasons for Judgment of Justice Hill handed down on 3 June 2005, replace the word “primitive” with “privative”.

I certify that the preceding numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment of Justice Hill.

Associate:

Dated:            20 June 2005

FEDERAL COURT OF AUSTRALIA

NBIZ v Minister for Immigration & Multicultural & Indigenous Affairs      [2005] FCA 757

NBIZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 80 OF 2005

HILL J
3 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 80 OF 2005

BETWEEN:	NBIZ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	3 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the respondent’s costs of the application.

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 80 OF 2005

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

JUDGE:	HILL J
DATE:	3 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex tempore – revised)

HILL J:

1. The applicant seeks leave to appeal against a decision of a Federal Magistrate upholding the respondent’s objection to competency of the Federal Magistrates Court and dismissing his application for judicial review.

2. The applicant is a citizen of India of Tamil ethnicity.  He came to Australia in July 2000 and applied for a protection visa.  His application was rejected by a delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”).  He then sought review of the Minister's decision by the Refugee Review Tribunal.  The Tribunal affirmed the Minister's decision not to grant to him a protection visa.  The Tribunal's decision was given on 29 August 2002.

3. From what the applicant said from the Bar Table, it seems he was advised by a migration agent that if he appealed to this Court he would be able to stay in Australia for at least two years.  So far as I understand it, the applicant believed that the agent would lodge an application to this Court for judicial review.  For whatever reason, the agent did not file an application in this Court back in 2002.  The application for judicial review was only filed in this Court on 13 September 2004.  Justice Allsop then transferred the matter to the Federal Magistrates Court.

4. Because the application was filed considerably out of time, the application for judicial review is not competent, unless the decision of the Tribunal is not a privative clause decision.  Speaking generally, a decision of the Tribunal will only not be a privative clause decision if the Tribunal made a jurisdictional error in reaching its conclusion or otherwise acted in bad faith.  A “decision”, made by the Tribunal without jurisdiction, is not a decision at all and therefore is not a privative clause decision as that expression is used in the Migration Act1958 (Cth) (“the Act”): Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. Accordingly, the application to the Federal Magistrates Court would only be competent if the applicant were able to show jurisdictional error or bad faith.

5. It is unnecessary to canvass here the case which the applicant sought to make in the Tribunal.  The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (hereafter, the “Convention”).  The Tribunal regarded some of the claims made by the applicant to be highly implausible.  It was of the view that the applicant had been less than frank in his dealings with the Tribunal.  It noted that the core matter relied upon by the applicant in the Tribunal related to the murder of a businessman in 1997.  This matter had apparently not been raised by the applicant in the original interview with the Minister's delegate.

6. In this respect, the Tribunal was of the view that the applicant was withholding something significant.  It was further satisfied that any hostile intent towards the applicant by the murdered man's family was not by reason of any political opinion or any other Convention reason.  It suggested that any such adverse or hostile intent was directed towards revenge for the death of the family member.

7. The applicant was not represented before the Federal Magistrate.  The application for judicial review did no more than recite some of the original claims made to the Tribunal.  As the learned Magistrate says, some of the matters which the applicant raised before the Magistrate were findings of the Tribunal with which the applicant disagreed.

8. The applicant also raised his fears, if he were to go back to India, and as the learned Magistrate saw it, attempted to agitate before the Magistrate, factual matters.  The learned Magistrate was unable to discern any jurisdictional error on the part of the Tribunal.  Like the learned Magistrate, I too cannot find any jurisdictional error in the Tribunal's decision. 

9. With respect, there does not seem to be any error on the part of the learned Magistrate in concluding that the Tribunal's decision was a primitive clause decision.

10. Before me, the applicant pointed out that the failure to lodge the appeal in time was the result of a mistake.  He said he couldn't himself lodge the appeal because papers were in English and he did not understand English.  He said that if there was nothing wrong with what is happening in India he would still be there.  He said that he had scars on his body and face from the treatment he had suffered in India.  He pointed out that the agent who had advised him had cheated him, that he was locked up in detention and in the result, psychologically affected.  He said he was suicidal and suffered from body shakes.  He asked the Court to help him on humanitarian grounds to obtain a bridging visa and thus stay outside the detention facilities.

11. He pointed out that he had been unable to bring relevant documentary material from India in support of his case and that since he had been placed in detention, he had been unable to do anything concerning the appeal. 

12. It is evident from the matters raised by the applicant that he is unable to suggest any error on the part of the Magistrate or any jurisdictional error on the part of the Tribunal.  I appreciate that the applicant is not a lawyer, that he is unable to understand the legal system which proceeds in a different language and that without legal assistance, he is unable to deal properly with the appeal. 

13. These, however, are not matters with which I am able to deal.  There is no suggestion that given further time, the application would be able to obtain legal assistance or otherwise put before the Court any real submissions going to the question whether the Tribunal made a jurisdictional error.

14. Since I am of the view that the Tribunal reasons disclose no jurisdictional error (or bad faith) and, further, that there is no error in the learned Magistrate's decision, it follows that I would refuse leave to the applicant to appeal against the decision of the learned Magistrate.  In so doing I note that if leave had been granted, I would have had no option but to dismiss the appeal.

15. I would order the applicant to pay the respondent Minister's costs of the application for leave to appeal.

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

Associate:

Dated:            8 June 2005

Counsel for the Applicant:	The applicant appeared self-represented
Counsel for the Respondent:	G T Johnson
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	3 June 2005
Date of Judgment:	3 June 2005