FEDERAL COURT OF AUSTRALIA

NATC v Minister for Immigration & Multicultural & Indigenous Affairs [ 2003] FCA 558

MIGRATION – appeal from decision of Federal Magistrate – application for protection visa – whether Federal Magistrate made a jurisdictional error

Migration Act 1958 (Cth) s 426A

Judiciary Act 1903 (Cth) s 39B

Federal Court of Australia Act 1976 (Cth) s 25(1A)

Muin v Refugee Review Tribunal (2002) 190 ALR 601 referred to

NATC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 116 OF 2003

HELY J

29 MAY 2003

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal is dismissed with 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                     The appellant is a citizen of Bangladesh who arrived in Australia on 8 November 1999.  He applied for a protection visa on 10 December 1999, on the ground that he has a well-founded fear of persecution by reason of his political opinion.  The application was refused by the Minister's delegate on 19 January 2000.  On 15 February 2000 the appellant applied to the Refugee Review Tribunal (“the RRT”) for a review of the delegate’s decision.  On 17 May 2002 the RRT invited the appellant to attend a hearing on 11 July 2002.  The appellant was advised by the RRT in the letter that it was unable to make a favourable decision on the information before it.  Receipt of that invitation was acknowledged by the appellant’s adviser.  However, the appellant neither attended the hearing nor did he contact the RRT to explain his failure to attend.  On 11 July 2002 the RRT affirmed the decision of the delegate.

2                     The RRT proceeded to make a decision on the review, that being a step which the RRT was entitled to take under s 426A of the Migration Act 1958 (Cth) (“the Act”).  On the hearing of this appeal the appellant told me that he was sick at the time the hearing was scheduled to be held and for that reason he did not attend.  Nothing was placed before the RRT to establish that inability and even if it be assumed that the appellant was in truth sick at the time, that does not establish any error on the part of the RRT in proceeding in the way in which it did. 

3                     The appellant claimed to fear persecution at the hands of the Awami League by reason of his membership of the Freedom Party and in particular by reason of his active involvement in the June 1996 election campaign which drew on to him the wrath of Awami League activists in subsequent years.  The appellant provided a statement in support of his claims.  There were obvious discrepancies in the dates of events included in the appellant's statement which in the view of the RRT required explanation, but which the appellant had failed to explain.  The appellant's failure to attend the hearing contributed to that failure.  Besides this the RRT took the view that country information available to it was at odds with the appellant's claims.  For these reasons the RRT was not satisfied that any of the claims had been made out. 

4                     The appellant then sought relief from this Court under s 39B of the Judiciary Act 1903 (Cth).  The application was heard by Federal Magistrate Raphael who ordered that the application be dismissed.  The appellant now appeals to this Court.  By direction of the Chief Justice that the appeal is to be heard by a single judge under s 25(1A) of the Federal Court of Australia Act 1976 (Cth).  The grounds contained in the Notice of Appeal are:

“2.       the single judge of the Federal Magistrate Court in his Honour’s judgment delivered on 31 January 2003 failed to find error of law, jurisdictional error or procedural fairness and relief under s 39B of the Judiciary Act (1903);

3.         the grounds and relief is very much similar with a recent High Court judgment in Muin v Refugee Review Tribunal;  Lie v Refugee Review Tribunal (2002) HCA 30 (8 August 2002).  Catchwords Immigration - Refugee - Protection Visa - decision by Minister to refuse application for visa - review of decision by Refugee Review Tribunal - obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Register of Tribunal for purpose of review -  nature and extent of obligation - Migration Act (1958) (Cth), ss 148(3), 424(1).”

5                     The Notice of Appeal does not particularise any specific error in the judgment of Federal Magistrate Raphael.  I have read the judgment and no error in it is apparent to me.   The reliance in the Notice of Appeal on the decision of Muin v Refugee Review Tribunal (2002) 190 ALR 601 is misplaced as there has been no attempt to establish that any document referred to in the delegate's decision was not before the RRT, or that the appellant was misled in any way by the letters sent to him from the RRT, which appear at pages 59 and 69 of the relevant documents.

6                     The appellant has lodged written submissions in support of his appeal.  I have read those submissions and they will be placed with the papers so that there will be a record of them.  Those submissions go beyond the Notice of Appeal but I have nonetheless taken them into account.  The submissions assert actual bias on the part of the RRT Member.  The particulars of bias indicate that the bias claim is founded only on the fact that the RRT did not accept the appellant's claims.

7                     The RRT was entitled to come to the conclusions which it did and to reject the appellant's claims.  The fact that it did so provides no basis for a claim of bias.  I accept as the balance of the appellant's written submissions endeavour to make out, that notwithstanding the privative clause in s 474 of the Act this Court has jurisdiction under s 39B of the Judiciary Act to grant relief in cases where the RRT has committed jurisdictional error.  The appellant's written submissions do not disclose any such error.  Nor do those written submissions disclose any error on the part of the Federal Magistrate. 

8                     The appellant appeared for himself on the hearing of this appeal without the benefit of legal representation but with the assistance of an interpreter.  He told me that there are a lot of problems in his country, that he left his parents and family behind and he is afraid to go back because lots of people are being killed.  He asked me to send the case back to the RRT for consideration.  I endeavoured to explain to the appellant that I cannot do this absent some demonstration of appealable error.  As there has been no such demonstration the appeal must be dismissed.

9                     The appeal is dismissed with costs.  That is the ordinary consequence of a dismissal of an appeal of this type.  There is no reason to depart from the usual practice in that respect. 

Associate:

Dated:              6 June 2003