FEDERAL COURT OF AUSTRALIA

NACV v Minister for Immigration and Multicultural Affairs [2002]

FCA 411

IMMIGRATION - Applicant seeking protection visa initially on the basis of fear of persecution on account of political beliefs and subsequently of his homosexuality - adverse finding as to Applicant’s credibility by Refugee Review Tribunal - whether that finding should be set aside in the circumstances of the case - whether decision reviewable under privative clause regime - no reviewable error identified.

Migration Act 1958 (Cth) ss 91R, 424A, 474(2)(4)(5)

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 approved

Case W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 approved

Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 approved

R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 referred to

Paul v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 289 referred to

NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 followed

NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281 followed

Ratumaiwai v Minister for Immigration and Multicultural Affairs [2002] FCA 311 followed

NABM v Minister for Immigration and Multicultural Affairs [2002] FCA 335 followed

NACV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 141 of 2002

CONTI J

SYDNEY

3 APRIL 2002

THE COURT ORDERS THAT:

1.                  The Application be dismissed.

2.                  The Applicant pay the Respondent’s costs in the proceedings.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an Application for Review of a decision of the Refugee Review Tribunal (“the Tribunal”) refusing the Applicant a protection visa. The Tribunal decision was handed down on 24 December 2001. An Application for Review was filed by the Applicant on 27 February 2002. There has been no amended application filed since the lodgment of the original Application for Review on that day. It is unnecessary for me to repeat the findings of fact which have been made by the Tribunal. These have been conveniently set out by Mr Reilly, Counsel for the Minister, in his written submissions.

2                     In short the Tribunal below found that the Applicant was not a credible witness. As to the Applicant’s claim of political persecution, the Tribunal found that such claim was vague, confused and inconsistent with the independent evidence which it ultimately referred to in its decision. Moreover the Tribunal characterised the Applicant’s claim that he would be persecuted on account of his homosexuality as unconvincing and appeared contrived. It is readily apparent that the Applicant was unsuccessful because of the view the Tribunal took of the facts and circumstances which he had put forward, and of his credibility. So long as credibility findings are open to be found on the evidence placed before the Tribunal, there is no reviewable error committed by the Tribunal: see the Full Court decisions in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (O’Connor, Branson and Marshall JJ), and Case W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 (Lee, Tamberlin and R D Nicholson JJ) and in particular what was said by Tamberlin and R D Nicholson JJ at [64] to [69].

3                     As to whether particular conduct, such as rejection or disinheritance by one’s family, or otherwise, is sufficiently serious to amount to persecution, this is also a factual issue over which the Tribunal is the final arbiter, and Mr Reilly has cited in that regard the judgment of Hill J in Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 at 268 and 271, which I find to be of assistance having regard to section 91R of the Migration Act 1958 (Cth) (“the Act”). I further find that there has been no other finding on the part of the Tribunal which could be characterised as erroneous.

4                     The Tribunal complied incidentally with section 424A in relation to the Applicant’s claim of persecution on the grounds of his homosexuality. Reference has also been made in that regard in the submissions of Mr Reilly to Paul v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 289, especially at [94].

5                     In any event the decision of the Tribunal below was in the nature of a privative clause as defined by subsection 474(2) of the Act. It was not a decision excluded by subsections 4 and 5 of section 474 of the Act. In those circumstances this Court has held that unless it can be shown by an Applicant that a Tribunal decision was not made in bona fide exercise of its powers under the Act, or else that the decision did not relate to the subject matter of the Act, or else that the decision is not reasonably capable of reference to the power given to the decision maker, then in accordance with the Act, the decision of the Tribunal has been rendered by the legislature to be final and conclusive.

6                     The above principles, which prescribe the ambit of review under s 474 of the Act derive from the High Court judgment in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598, and have been recently applied by the Court in the decisions of Gyles J in NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263, Tamberlin J in NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281, Hill J in Ratumaiwai v Minister for Immigration and Multicultural Affairs [2002] FCA 311 and Beaumont J in NABM v Minister for Immigration and Multicultural Affairs [2002] FCA 335. In my opinion the Applicant has not established a case within any one of the long established three principles restated in the authorities of this Court and summarised in [5] above, in the context of the present legislation.

7                      I therefore order that the Application be dismissed and that the Applicant pay the Respondent’s costs in the proceedings.

Associate:

Dated: 8 April 2002