S1426 of 2003 v Minister for Immigration
[2006] FMCA 611
•24 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1426 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 611 |
| MIGRATION – Visa - protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of Bangladesh claiming well-founded fear of persecution on the ground of political opinion – claim of breach of Migration Act 1958 (Cth) s.424A misconceived – no breach of Migration Act 1958 (Cth) s.424 – no requirement on RRT to exercise its power to carry out its own investigation. PRACTICE & PROCEDURE – Delay – where decision handed down on |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424, 424A
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992
Re Minister for Immigration & Multicultural Affairs; ex parte Miah (2001) 206 CLR 57
SLGB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 262
R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598
Mollah v Minister for Immigration & Multicultural Affairs [1999] FCA 770
| Applicant: | APPLICANT S1426 of 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 680 of 2004 |
| Delivered on: | 24 April 2006 |
| Delivered at: | Sydney |
| Hearing date: | 19 April 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms Francois |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Leave to join the Refugee Review Tribunal as Second Respondent to the application.
The title of the First Respondent is changed to the Minister for Immigration and Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 680 of 2004
| APPLICANT S1426 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal made its decision on 12th November 1998.
The decision of the Tribunal was to affirm a decision of a delegate of the Minister not to grant a protection visa to the Applicant.
Background
The Applicant is a citizen of Bangladesh who arrived in Australia on 6th December 1997. After his application for a protection visa was refused on 9th February 1998 the Applicant sought a review of that decision from the Refugee Review Tribunal.
The Applicant gave oral evidence to a hearing of the Tribunal on 22nd October 1998. He also provided written submissions. He claimed to fear persecution because of his political opinions as a member of the Bangladesh Nationalist Party (BNP). He claimed to have been attacked by supporters of the Awami League and to have been the victim of false charges brought by his political opponents.
The Tribunal accepted that the Applicant was a citizen of Bangladesh and had been a member of the BNP. The Tribunal was not satisfied that he had been a leading activist of the party or that there was a real chance that either the local members of the Awami league or the authorities wished to persecute him. In addition, the Tribunal expressed “serious doubts”[1] about the genuineness of the documents that the Applicant had submitted.
[1] Court book page 117
The Applicant had invited the Tribunal to contact the Magistrates Court in Dhaka and Tongibari in Bangladesh to confirm that the copies of the court documents that the Applicant provided were genuine. The Tribunal, relying on the decision in Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284 took the view that this action was not necessary or warranted.
The Tribunal was not satisfied that the Applicant had a fear of persecution for a Convention reason and affirmed the decision not to grant a protection visa.
The application for review
The Applicant filed an application in this Court on 11th March 2004 and an Amended Application on 29th September 2004. In his Amended Application, upon which he relies, the Applicant seeks a declaration that the Tribunal decision was made in excess of jurisdiction and is therefore null and void. He also seeks orders in the nature of certiorari and mandamus.
The Applicant relies on two grounds of review:
a)The Tribunal denied the Applicant procedural fairness by:
i)Finding that court documents were either fraudulently produced or written to assist the Applicant’s claims;
ii)Relying on independent evidence as to the availability of false documentation in Bangladesh;
iii)Failing to afford the Applicant an opportunity to deal with adverse information contained in the independent country information; and
iv)Relying on independent country information about a high level of document fraud in Bangladesh.
b)The Tribunal failed to comply with the mandatory requirements of the Migration Act 1958, including s.424A, by:
i)Ignoring procedures required by the Act or the regulations;
ii)Ignoring the merits of the applicant’s claim;
iii)Failing to take a relevant consideration into account in exercising its power to determine the applicant as a refugee;
iv)Incorrectly interpreting the applicable law to the facts;
v)Making an unjust decision taking into account the gravity of the applicant’s circumstances and consequences of the applicant’s claim;
vi)Making a decision not justified on the evidence; and
vii)Making an improper exercise of power and denying the applicant of natural justice.
The Applicant made a brief oral submission directed mainly to factual issues and relied on his Amended Application.
Counsel for the Respondent Minister relied mainly on her written outline of submissions. The statements of the law contained in those submissions are correct.
Conclusions
I will deal with the Applicant’s grounds in order, beginning with the claim of denial of procedural fairness relating to the Tribunal’s use of independent country information about the prevalence of document fraud in Bangladesh. As counsel for the Minister submitted, the facts necessary to establish the kind of error set out in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 do not apply in this case. First, the country information about document fraud was only one of the reasons why the Tribunal expressed serious doubts about the documents provided by the Applicant. Again, the Tribunal put all the adverse country information to the Applicant for his comments during and after the hearing.[2] Third, even though the Tribunal did make an adverse finding about the false charges against the Applicant, it also considered that if there were such false charges the applicant could expect a fair hearing in court.
[2] See pages 78 to 102 and 111 of the Court Book.
The Respondent submits, correctly in my view, that even if the Tribunal had erred in respect of the false charges it would not be appropriate to grant relief (see SLGB v Minister for immigration & Multicultural & Indigenous Affairs [2004] FCA 262).
The Applicant’s claim that the Tribunal failed to comply with the provisions of s.424A cannot be sustained, as that section did not come into operation until well after the Tribunal had handed down its decision.
There is no evidence of any failure by the Tribunal to observe any procedures laid down by the Migration Act or the Regulations.
There is no evidence that the Tribunal ignored the merits of the Applicant’s claim. This ground appears to seek a merits review of the Tribunal’s decision, which the court has no power to do. The Tribunal has no obligation to exercise its powers under s.424 of the Migration Act to investigate any aspect of an applicant’s claim (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992).
There is no evidence that the Tribunal failed to take any relevant consideration into account.
There is no evidence that the Tribunal incorrectly applied the law to the facts of the Applicant’s case.
Whilst the Applicant claims that the Tribunal made an “unjust” decision, this ground is no more than an attempt to obtain a merits review, which is impermissible.
The Applicant claims that the decision was not justified on the evidence. I am satisfied that there was evidence sufficient to allow the Tribunal to make the findings that it did, and the court has no jurisdiction to interfere in the Tribunal’s fact-finding function.
There is no evidence of any improper exercise of power by the Tribunal, nor of any denial of natural justice. The Applicant attended a hearing and gave evidence. After the hearing, the Tribunal wrote to the Applicant to give him the opportunity to comment on adverse material.
As the Respondent submitted, the Applicant has not shown that the Tribunal failed to exercise its jurisdiction, exceeded its jurisdiction of breached any of the provisos set out in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598.
As the Applicant is not legally represented, I have read through the decision to ascertain whether any jurisdictional error appears not mentioned by the Applicant. I am unable to discern any, and I am satisfied that the decision is a privative clause decision as defined in s.474 of the Migration Act.
In any event, the Tribunal’s decision has already been reviewed by Hely J in the Federal Court under the provisions of the old s.476 of the Migration Act (see Mollah v Minister for Immigration & Multicultural Affairs [1999] FCA 770. That application was also dismissed.
This application will be dismissed with costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 26 April 2006
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