Re Niagara Mining Ltd

[2002] FCA 165

FEDERAL COURT OF AUSTRALIA

Mezbur v Minister for Immigration & Multicultural Affairs [2002] FCA 165

ASIM MEZBUR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 1527 of 2001

WHITLAM J
20 FEBRUARY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1527 of 2001

BETWEEN:	ASIM MEZBUR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	20 FEBRUARY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant 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 1527 of 2001

BETWEEN:	ASIM MEZBUR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	20 FEBRUARY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This proceeding relates to a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of a delegate of the respondent (“the Minister”) made on 15 December 1999 to order the deportation of Asim Mezbur (“the applicant”).  The decision of the Tribunal was given on 26 October 2001.  Section 483 of the Migration Act1958 (Cth) (“the Act”) provides that s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) has no application to this decision of the Tribunal and, therefore, an appeal from the Tribunal is not available. The applicant lodged in the New South Wales District Registry an application on 15 November 2001 described as an application for an order of review. The application is completed in handwriting and notifies no grounds that could be readily identified as grounds of review available under the former Pt 8 of the Act. In terms of describing why the applicant is aggrieved by the decision, the applicant says that he is aggrieved “because the judge was bias towards me when making his decision he didn’t take into account my son, health or hardship that I would face [if] deported".

2. The reasons for decision of the Tribunal comprise some 26 pages and 83 paragraphs and set out comprehensively the background to the matter and the evidence given by the applicant before the Tribunal.  Evidence was also given by Nevzeta Akeljic, a former de facto wife of the applicant.  The Tribunal’s statement summarizes the submissions made on behalf of the Minister and what the applicant said to the Tribunal in support of his own case.  Although strictly speaking it is not an appeal, the papers prepared for the hearing of this matter have been described as “appeal papers” and include the s 37 documents before the Tribunal and the documentary tender made by the applicant in the Tribunal.  The appeal papers also include some material that was evidently sought by the Tribunal from the Minister relating to the current situation in Bosnia Herzegovina. 

3. Leaving aside for the moment the effect of the amendments made to the Act which came into force in October 2001, the applicant engages with the terms of the decision primarily to criticise the weight attributed by the Tribunal to certain factors. Those are his relationship to his son, his health and the situation in Bosnia Herzegovina. The applicant frankly acknowledges his disappointment with the Tribunal decision. There is one other matter which the applicant relies on and that is that the evidence of his former de facto was given by telephone, a matter referred to by the Tribunal in paragraph 2 of its decision. Although not disclosed by the appeal papers, the applicant says that he objected to evidence being given by telephone. That is accepted by the Minister for the purpose of this hearing. Presumably this was one of the matters that the applicant had in mind in his allegation in the application that the Tribunal, to whom he refers as “the judge”, was biased against him.

4. There is no doubt that the Tribunal has power to permit evidence to be taken by telephone. The taking of the evidence in that way does not by itself constitute any legal error on the part of the Tribunal. Nor is it possible from the material before the Court to discern any basis on which it can be said that, notwithstanding the applicant's objection to that course, some procedural unfairness was involved. In all the circumstances and ignoring for the moment the effect of the privative clause contained in s 474 of the Act, nothing that the applicant said indicated any legal error on the part of the Tribunal such as would otherwise have been available to the applicant under s 44 of the Administrative Appeals Tribunal Act1975 or under the former Pt 8 of the Act.

5. The insurmountable hurdle that confronts the applicant was one that he frankly acknowledged, having read the outline of the submissions on behalf of the Minister, that he did not understand, and that is the effect of the amendments made to the Act last year. As noted above, the decision of the Tribunal was given on 26 October 2001 and there is no room for dispute that that decision is a privative clause decision. Whatever scope there might be for jurisdiction to be exercised by this Court pursuant to s 39B of the Judiciary Act1903 (Cth), plainly it is governed by what Deane and Gaudron JJ described in Deputy Commissioner of Taxation v Richard Walter Pty Limited (1995) 183 CLR 168 at 210-211 as the “classical statement of the prima facie approach to the construction of such a clause” contained in the following extract from the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615:

   “Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.”

6. That statement is paraphrased in the submissions prepared by counsel for the Minister and summarized in paragraph 4.6 of those submissions.  The attention of the applicant was drawn to that particular paragraph because the applicant was acting for himself and, not unnaturally for a layman, had some difficulty in grasping the principles in play.  Nonetheless the applicant has not been able to press a case within the scope of those terms, and on the material before me I do not consider that it would be possible to do so.  Accordingly the application will be dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             

The applicant appeared in person
Counsel for the respondent:	John Basten QC with G R Kennett
Solicitors for the respondent:	Blake Dawson Waldron
Date of hearing:	20 February 2002
Date of judgment:	20 February 2002