NABS v Minister for Immigration & Multicultural & Indigenous Affairs

EX TEMPORE REASONS FOR JUDGMENT 1 The applicant, who was a citizen of India and a Sikh from the Punjab area, arrived in Australia as a student on 12 July 1999. On 25 January 2000 the applicant lodged an application for a Protection (Class XA) Visa with the Department of Immigration and Multicultural Affairs. On 13 March 2000 a delegate of the Minister refused to grant a protection visa. On 10 April 2000 the applicant applied for a review of that decision. On 8 January 2002 the Refugee Review Tribunal ("the Tribunal") affirmed the decision not to grant a protection visa. 2 On 1 February 2002 the applicant filed in this Court an application for an order of review. He was then, and remains now, unrepresented. The grounds of the application which were stated were: "1. The applicant will be persecuted if he returns home. In relation to his claim he filed a number of documents, which were not considered by the Tribunal. 2. The Tribunal made a number of errors to decide the fate of the applicant's claim. 3. The applicant was deprived of natural justice. 4. The applicant is seeking review in accordance with the section 474 of the Migration Act 1958. 5. The Tribunal did not consider the applicant faced systematic persecution while he was in India." 3 Earlier in the application he had listed some matters of grievance, one of which was that the Tribunal did not act in good faith in regard to the applicant's claim. Pursuant to a direction of the Court, the applicant filed submissions which, although he is unrepresented, bear something of the hand of one who has some familiarity with the legal issues involved in cases such as this. I do not propose to set out in this judgment the substance of what was said in those submissions. They are available on the file. 4 Having read those submissions carefully, it appears to me that they are all criticisms in one way or another of the manner in which the Tribunal went about its task of fact finding and, indeed, it seems plain on the face of them that the complaint is that a number of errors were made by the Tribunal in making the decision. There is no further elucidation in any submissions of the claim in part of the application that the Tribunal did not act in good faith in regard to the applicant's claim, and there is no evidence directed to that issue. There is no particular emphasis placed in the submissions upon the ground that the applicant was deprived of natural justice. It is not apparent to me upon what basis that argument would be put (if available). 5 The difficulty which faces the applicant in the present case is that, following the Migration Legislation (Judicial Review) Act 2001 (Cth), s 474 of the Migration Act 1958(Cth) constitutes a very significant barrier to a successful challenge to the decision of the Tribunal. There have been a number of recent decisions which have considered the validity and operation of that section. I had occasion to consider that line of authority in a decision which I delivered on 30 April 2002, NABC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 539. For reasons that I endeavoured to explain, in my opinion, the proper approach in these cases now is to first consider whether s 474 applies so as to protect the decision under review. If it does, the Court need not and, indeed, should not go any further. In approaching that issue, I apply the decisions (which I identified in NABC) which have the effect that the operation of s 474 is complete save for what might be called the "Hickman exceptions". That expression incorporates some elucidation of those exceptions in cases later than Hickman. 6 Having read the decision of the Tribunal in this matter, and considered the submissions of the applicant, it seems to me that there is no basis upon which it can be said that the decision was not a bona fide attempt to exercise the statutory power vested in the Tribunal. The decision clearly relates to the subject matter of the legislation and is reasonably capable of reference to the power given to that body. I can see no reference in the submissions or the application itself which would indicate that there was a breach of any essential statutory condition which might be argued to constitute a proper ground of review notwithstanding s 474. In those circumstances, it appears to me that the only course which is appropriate is to dismiss the application. 7 I dismiss the application. I order that the applicant pay the cost of the respondent. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.