FEDERAL COURT OF AUSTRALIA

NABY of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1334

APPLICANT NABY OF 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 770 OF 2002

STONE J

29 OCTOBER 2002

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant’s solicitor pay the respondent’s costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of a Federal Magistrate given on 10 July 2002.  On that date, Raphael FM dismissed the appellant’s application for a review of the Refugee Review Tribunal (“Tribunal”) decision that the appellant was not entitled to a protection visa under the Migration Act 1958 (Cth) (“the Act”).  The Chief Justice determined, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), that the appellate jurisdiction of the Court in this proceeding was to be exercised by a single judge.

BACKGROUND

2                     The appellant is a citizen of India and a member of the Sikh religion.  He arrived in Australia on 3 October 1999 and applied for a protection visa on 2 November 1999.  His application was refused by the respondent’s delegate on 15 November 1999.  The Tribunal affirmed the delegate’s decision on 25 October 2001.  An application for a review of the Tribunal’s decision was filed on 20 November 2001.

THE TRIBUNAL’S DECISION

3                     The appellant claimed that his well-founded fear of persecution arose from his membership of the Akali Dal political party and from his religious beliefs as a Sikh. The Tribunal accepted independent country information to the effect that there are parts of India in which there is no discrimination against Sikhs.  The Tribunal also found that because of the appellant’s level of education and employment background he would be able to obtain work if he relocated. For these reasons the Tribunal found that the appellant could avoid the persecution he feared by relocating to a different part of India. 

4                     The Tribunal had doubts about the appellant’s credibility arising from inconsistent claims that he made and his inability to give specific details about other aspects of his claims.  Some of these claims related to his fear of spurious allegations made in judicial proceedings. In relation to these claims the Tribunal accepted independent information “that there is an independent judiciary in India”.  In relation to the appellant’s claim that he needed treatment for an eye condition in Australia, the Tribunal also found that he had received treatment for this condition in India and that, in any event, his claim that he needed treatment in Australia did not “give rise to a well-founded fear of persecution for a Convention reason”.

THE MAGISTRATE’S DECISION

5                     Before Raphael FM, the appellant claimed that he had been denied procedural fairness because the delay between the decision of the Respondent’s delegate on 15 November 1999 and the handing down of the Tribunal’s decision, some 1 year and 9 months after the appellant’s application for a review of the decision. 

6                     It was also submitted that the Tribunal had not given appropriate consideration to the appellant’s membership of the Akali Dal party.  Raphael FM could find no evidence that the Tribunal neglected to explore that claim or for the allegation that the Tribunal had failed to act in a bona fide manner in relation to documents supporting applications from India or Bangladesh for refugee status.

7                     His Honour noted that the Tribunal’s decision fell within the provisions of the Act as it stood by virtue of amendments made by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).  As such the decision of the Tribunal is a privative clause decision; s 474(2). His Honour found that the appellant was unable to establish any grounds upon which review of the Tribunal’s decision could be ordered under s 39B of the Judiciary Act 1903 (Cth) and dismissed the application with costs.

GROUNDS OF APPEAL

8                     The grounds identified in the notice of appeal filed on 30 July 2002 are that the Federal Magistrate erred in failing to find that the decision of the Tribunal involved an error of law which involved an incorrect interpretation of the applicable law or an incorrect interpretation of the law to the facts as found by the Tribunal.  Section 476(1)(c) of the Act is cited as the basis of this ground of review.  No particulars of the alleged error have been provided. 

9                     Because the Tribunal’s decision was made on 25 October 2001, after the amendments to the Act referred to earlier (see [7] above), the purported ground of review is no longer available to the appellant, as the section relied upon has been repealed.  As a consequence of those amendments the Tribunal’s decision is a privative clause decision to which s 474 of the Act applies and therefore the jurisdiction of the Federal Magistrates Court and of this Court is strictly limited.  It is extraordinary that so long after the commencement of these amendments (2 October 2001), a member of the legal profession should be responsible for preparing and filing such a notice of appeal on behalf of his client.  It is especially reprehensible when the deficiencies of the notice of appeal were pointed out to the appellant’s solicitor at a directions hearing on 16 August 2002 at which time the appellant was given leave to file and serve an amended notice of appeal.  Moreover, despite Raphael FM explicitly stating that the Tribunal’s decision.

“is one to which the provisions of the new s 474 of the Migration Act apply by virtue of the transitional provisions of the Migration Act contained in Schedule 1 of the Migration Legislation Amendment (Judicial Review) Act 2001”,

the submissions filed by the appellant’s solicitor claim that the learned magistrate was in error in not finding that the Tribunal erred under the repealed provisions of the Act.

10                  Since the amendments of October 2001, there have been numerous decisions of this Court, both at first instance and on appeal, in which the amendments have been considered. A most cursory survey of recent decisions concerning the Act would reveal this to be the case.  A superficial review of even some of those decisions would alert any reasonably competent practitioner to the unavailability of the ground stated in this notice of appeal.

11                  Apart from the misconceived ground of appeal set out in the notice, the appellant’s submissions allege that the Tribunal made a jurisdictional error “when he disregarded a matter of importance, which it was required to take into account in deciding the case.”  They also allege a denial of procedural fairness and seek to cavil with findings of fact made by the Tribunal.  None of these claims amount to a claim of reviewable error within the present jurisdiction of this Court or the Federal Magistrates Court; NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228, Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1108 and NABM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 294.

12                  Clearly the appeal should be dismissed and the Respondent should have his costs. However, I see no reason why the appellant should be personally liable to pay costs occasioned by an appeal that was doomed to failure.  The appellant has been poorly served by his legal adviser.  I have given the appellant’s legal adviser an opportunity today to make submissions on this point, he did not however address the issue, other than to aver that the appellant had grounds for appeal.  The justice of the case requires that the solicitor be personally liable for the Respondent’s costs.

13                  For these reasons the appeal must be dismissed and the appellant’s solicitor pay the respondent’s costs.

Associate:

Dated:              14 November 2002