NADD v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The decision of the Refugee Review Tribunal ("the Tribunal"), refusing the Applicant a protection visa, was handed down on 5 November 2001, pursuant to the hearing which had taken place on 27 November 2000. Apart from one intervening event to which I will shortly refer, the Applicant does not claim to have been prejudiced by that delay. 2 In determining whether the Applicant had a well-founded fear of persecution for a Convention reason, the reasons for decision of the Tribunal reviewed at some length the claims and circumstances put forward by the Applicant, and correctly set out applicable legal principles, which I need not repeat. The Tribunal observed in particular at par 52 as follows: "As already foreshadowed, the Applicant has made no claims and produced no evidence that he, personally, has suffered any harm, mistreatment, discrimination, oppression, or serious violations of human rights in India from any Indian authorities or because of his Sikh ethnicity. The Applicant was not, himself, a member of any political party. The evidence of the applicant was that he, himself, was not a member of the Sikh Student Federation. The Applicant has never been arrested and or questioned and detained by the police. He obtained his passport in his own name in 1995 without difficulty. He left India without difficulty. There is no evidence to suggest that the Applicant personally has ever been of interest to the authorities." 3 The Tribunal also recorded that it could not accept that if the Applicant had genuinely feared that he faced persecution at the hands of the Indian authorities because of his Sikh ethnicity, he would have stayed in India for so long after the arrest of the person he identified as Mr Harjinder, and further that there was no evidence that the Applicant was at any time sought by the police in India. Moreover the Applicant had been away from India since the end of September 1996, having lived in Kenya until January 1999 when he came to Australia. 4 The Tribunal decision made reference to relevant country information pertaining to the currently improved climate in India with respect to people with an association with the Sikh Student Federation, and provided a careful consideration of applicable case law. The conclusion reached by the Tribunal member, as set out in paragraph 68 of the decision stated: "Having considered the evidence as a whole, and for the reasons set forth above, I am not satisfied the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." 5 The Applicant's solicitor has made submissions in support of the contention that there has occurred a breach of duty on the part of the Tribunal to afford the Applicant procedural fairness, by reason of the delay of nearly one year between the Tribunal hearing and the handing down of the Tribunal decision on 5 November 2001. That was said to be because the privative clause provisions came into operation on 2 October 2001, by virtue of Schedule 1, Clause 8(2) of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), with the consequence that the new subs 474(2) of the Migration Act 1958 (Cth) ("the Act") thereafter radically restricted the previously available grounds for review of the Tribunal decision once delivered. The Applicant claimed to have been prejudiced by the delay in the handing down of the decision of the Tribunal, insofar as the period of that delay has produced the consequence of subjecting him to the operation of the privative clause provisions of subs 474(2), to the exclusion of the grounds for review of Tribunal decisions provided by the former s 476 of the Act. 6 I made the preliminary observation that I have been unable to perceive from the material in the Court Book any basis for setting aside the Tribunal decision upon any one or more of the grounds for review provided by s 476 of the Act, as in force prior to the amendments effected on 2 October 2001, referred to in [5] above. Of course that observation is ultimately hypothetical, in the events which have happened in terms of legislative change, but it constitutes an arguable factor potentially relevant to the exercise of the Court's discretion in any consideration to be given for the grant of relief upon the ground of denial of natural justice, by reason of delay in the Tribunal publishing its decision on the original application for review. 7 I think that it is reasonable for me to assume that the decision of the Tribunal, and its process of reasoning, would have been no different at least in substance, had the same been handed down prior to 2 October 2001, rather than on 5 November 2001. In those circumstances, I would conclude that the Applicant cannot have suffered a denial of natural justice by reason of the delay in handing down the decision, even assuming that the Tribunal was subject to an actionable and enforceable duty to have handed down its decision upon the Applicant's application for review prior to 2 October 2001. Unless and until such decision was to be handed down, the prior decision of the Minister's delegate adverse to the Applicant represented the status quo relevantly to any entitlement of the Applicant to remain in Australia. In any event, I am unable to identify any basis for imputing to the Tribunal any duty in favour of the Applicant to have handed down a decision upon the application for review prior to the radical legislative change effected on 2 October 2001 in the form of s 474 of the Act. 8 Since the commencement of operation of the privative clause regime of s 474 of the Act, the grounds of review of this Court of a Tribunal decision appear to have been confined to no more than three in number, in line with the High Court decision in R v Hickman; Ex Parte Fox & Clinton (1945) 70 CLR 598, namely where the decision: (1) has not been made in bona fide exercise of power under applicable legislation; or (2) is not related to the subject matter of applicable legislation; or (3) is not reasonably capable of reference to the power given to the decision maker under applicable legislation. 9 In the result, neither of those grounds being obviously here available, the Applicant has no viable basis to seek review of the Tribunal decision made on 5 November 2001 adversely to his claimed status as a refugee, and none was suggested. I refer to in that regard, and rely upon, four decisions of this Court and the extensive reasoning therein contained, namely those of Gyles J in NAAX v The Minister for Immigration and Multicultural Affairs [2002] FCA 263, Tamberlin J in NABE v The Minister for Immigration and Multicultural Affairs [2002] FCA 281, Hill J in Ratumaiwai v The Minister for Immigration and Multicultural Affairs [2002] FCA 311 and most recently Beaumont J in NABM v The Minister for Immigration and Multicultural Affairs [2002] FCA 335. Even if the time taken by the Tribunal to provide a decision on NADD's application raised a viable issue of procedural fairness in the traditional sense, which I do not think to be the case, it is difficult to see how s 474 would permit recourse to this Court for redress in circumstances such as the present: see in that regard NAAX at [35], which was referred to by Hely J in Park v The Minister for Immigration and Multicultural Affairs [2002] FCA 346 at [16-17]. 10 The application for review must therefore be dismissed. With some hesitation because of the novelty of the circumstances placed before the Court, and because of the Applicant's recent injury, I think that the costs of the proceeding should nevertheless follow the event. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.