Sharif v Minister for Immigration and Multicultural Affairs

[1999] FCA 278

FEDERAL COURT OF AUSTRALIA

Sharif v Minister for Immigration & Multicultural Affairs [1999] FCA 278

MOHAMMED SHARIF v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1304 of 1998

HILL J
18 MARCH 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1304 OF 1998

BETWEEN:	MOHAMMED SHARIF Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	HILL J
DATE OF ORDER:	18 MARCH 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Application be dismissed.

2.The Applicant pay the Minister’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	NG 1304 OF 1998

BETWEEN:	MOHAMMED SHARIF Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	HILL J
DATE:	18 MARCH 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. Mr Sharif applies to the Court for judicial review of a decision of the Refugee Review Tribunal given on 8 October 1998 affirming the decision of the respondent Minister not to grant to him a protection visa.

2. The application filed on 1 December 1998 in essence claims that the Tribunal's decision should be set aside.  The precise grounds upon which that should happen are not detailed in that application or for that matter in a document which Mr Sharif says was lodged with this Court on 29 October 1998.

3. It seems that the Tribunal's reasons for decision dated 8 October 1998 were received by Mr Sharif not long after the date which they bear.  Mr Sharif was then in detention at the Villawood Detention Centre.  At that Centre detainees are responsible for filing their own applications and apparently  for filling out those applications.

4. Not surprisingly, the document which Mr Sharif completed is not filled out in the ordinary way.  I say not surprisingly because it is probable that his English is not adequate to permit that to be done by himself.

5. According to an affidavit of Ms Warner dated 16 March 1999 and read the in proceedings, officers working at Villawood were told by the Federal Court that no fax forwarding the application and reasons for the decision of the Tribunal had in fact been sent by the Villawood Detention staff to the Federal Court.  More recent inquiries, however, have disclosed that a 27-page facsimile was sent from the Detention Centre on 29 October 1998 at 11.03 am from Villawood.

6. It is true that the application is defective in form in a number of respects, eg. it does not name the Minister as a party: cf s 480 of the Migration Act 1958 (“the Act”) and it does not comply with the Rules of Court for applications in that it does not stipulate the grounds upon which the application is to be made (see s 478(1)).  However, both those matters can be cured by appropriate order.

7. A full court of this Court in Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155 held that it was not essential to comply with the Migration Act, that the application name the Minister and that the Court had power to permit an amendment to that effect. If that is so the Court would likewise have power to permit an amendment to the application to state the grounds upon which the application is made if the case be an appropriate one for amendment.

8. It has also been held in Hong Ye v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 327 that a Notice of Review will be treated as being lodged as distinct from filed in the Court when it is in fact received. This being the case, I would find that the Court has jurisdiction to deal with the appeal notwithstanding the lack of compliance with s 480 and perhaps 478(1) and of course the time gap that otherwise would have existed between the receipt of the Tribunal's decision and the date the second application was filed on 1 December 1998.

9. Unfortunately that is not the end of the matter for the Applicant. The Applicant in a case such as the present must base the review he or she seeks on one or other of the grounds set forth in s 476 of the Migration Act having regard to the provisions of subsection (2) which exclude as grounds for review a breach of natural justice and unreasonability.

1. Without endeavouring to expound compendiously upon the grounds of review, it is sufficient to say that to succeed an applicant must show some error of the kind set out in s 476. Such an error will usually, although perhaps not invariably, involve a question of law.

2. Mr Sharif, like many people who appeal from the Tribunal, is unrepresented.  Not surprisingly he has no idea at all what is involved in demonstrating that there is some error of law.  I understand from the interpreter that he has even difficulty in understanding what the interpreter is translating.  He is unable to articulate any basis for his appeal.  That makes my task very difficult.  Nevertheless I have read carefully the Tribunal’s reasons to see whether legal error is apparent.

3. When one looks at those reasons, it is clear that the Tribunal did not believe Mr Sharif.  Indeed the Tribunal member went so far as to say that there is very little about what Mr Sharif had claimed which she could accept, and that she was unable to be satisfied even about his name.  She found that the evidence was strongly against his claim to be a national of Afghanistan, upon which the matter of refugee status rested.  Being unable to be sure whether he was a national of Afghanistan or perhaps of Malaysia or perhaps of Pakistan, it is hardly surprising that the Tribunal member concluded that she could not be satisfied that he was entitled to the protection of the 1951 United Nations Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”).

4. I asked Mr Sharif to say in which respects he thought the Tribunal's reasons were wrong.  Mr Sharif said that the Tribunal believed that he had come to Australia on a genuine passport when in fact he had purchased that passport from someone else.  He said that  the Tribunal did not accept that he came from Afghanistan, notwithstanding that he himself was illiterate but had brought before the Tribunal a witness whose evidence was that he had known Mr Sharif in Afghanistan, and which the Tribunal did not believe.  Mr Sharif said the Tribunal found that he was from Malaysia and that this was not so.  I should interpolate that the Tribunal did not in fact make that finding.  It said it was unable to find whether he was from Malaysia or Afghanistan.

5. Finally Mr Sharif said that the Tribunal's decision was unjust and that he believed that his life was in danger if he were to be returned to Afghanistan.

6. I can understand Mr Sharif’s difficulty. If he is from Afghanistan I can imagine his frustration at the finding of the Tribunal that it was not sure where he came from or, for that matter, what his name was.  But Parliament has entrusted to the Tribunal matters of fact.  It has expressly excluded this Court from jurisdiction to consider the merits of cases such as the present.  The Court has only a very limited jurisdiction to interfere, that jurisdiction being, as I have already indicated, what may generally be referred to as legal error.

7. I have, as already noted, read carefully the decision which Mr Sharif seeks to attack.  It is perhaps fair to say that the Tribunal member evinced a deal of scepticism about the evidence Mr Sharif gave.  Whether I would have done so in the same position is not relevant.  Ultimately, as I have already said, the Tribunal took the view that it did not believe Mr Sharif.  The fact that he says that he was telling the truth and the Tribunal was wrong does not involve any legal error and, on its face, I can detect none in the reasons which the Tribunal gave.

8. In these circumstances I have no alternative but to dismiss the application.

9. I will order the Applicant pay the Minister's costs of the application  though not of the objection to competency.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill

Associate:

Dated:             18 March 1999

The Applicant appeared in person
Counsel for the Respondent:	T. Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 March 1999
Date of Judgment:	18 March 1999