NAAB v Minister for Immigration & Multicultural Affairs

the applicant's claims 2 The applicant's claim for a protection visa arises from his alleged association with a Tamil family. The association is said to have led to the arrest of the applicant in December 1999 and to his detention and interrogation while in custody. Having been released through the intervention of his parents the applicant went to Colombo. He claimed that his family's concern for his safety led to his father organising a student visa that secured his entry to Australia. The applicant claimed that during his visits to Sri Lanka in November 1998 and December 1999 he learned that his Tamil friend was suspected of supporting the Liberation Tigers of Tamil Eelam ("LTTE"). He claimed that during the second visit his friend was arrested. 3 The applicant was advised in a letter from the Tribunal dated 20 August 2001 that he had not provided enough evidence for a favourable finding by the Tribunal in relation to his application and was asked to attend a hearing "to give oral evidence, and present arguments" in support of his claims. The applicant did not attend either the original hearing or a rescheduled hearing, nor did he submit any further evidence.

The Tribunal's Findings 4 It is not surprising that the Tribunal rejected the applicant's claim for protection holding that his fear of persecution was not well founded. On the evidence available, it was not satisfied that the applicant was "at any risk of arrest, detention, or mistreatment on arrival in Sri Lanka." In summary the Tribunal noted that: · the applicant claimed that his fears began in 1997, but he only applied for protection in Australia when his student visa ran out and he was placed in detention in July 2001; · the independent country information did not support the applicant's claim that he would be suspected of supporting the LTTE merely because of his friendship with a Tamil; · the applicant had been able to leave and return to Sri Lanka "on his own passport without any apparent difficulty"; and · the applicant could produce no evidence to support his claim that he had been arrested and detained for three days.

Review in this court 5 As indicated above, the application for an order of review of the Tribunal's decision was filed on 4 October 2001. It is therefore affected by the amendments to the Act that commenced on 1 October 2001. These amendments, which include a privative clause at s 474, would appear to impose very far-reaching restrictions on the Court's power to review decisions of the Tribunal. 6 The applicant appeared for himself at the hearing but was not able to identify any error on the part of the Tribunal. His comments were directed to the merits of his claim. This is an issue that the Court had no jurisdiction to review even before the recent amendments. The respondent submitted that, as the applicant has not identified any error in the decision of the Tribunal, the application should be dismissed with costs. 7 In the alternative, counsel for the respondent, in written submissions, also reviewed the law relating to privative clauses referring the Court to the analysis of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 and R v Murray; Ex parte Proctor (1949) 77 CLR 387. Counsel also referred to the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. 8 While the full extent of the recent amendments is not yet clear, in my opinion, it is neither necessary nor appropriate to explore the issue in this case. The applicant has made no claim of jurisdictional error and the Tribunal's decision does not suggest that any such error occurred. I agree with the primary submission of the respondent. The applicant not having identified any ground of review, the application should be dismissed with costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Counsel for the Applicant: The applicant appeared in person

Counsel for the Respondent: Mr S Gageler SC with Mr S Lloyd