NAFK v Minister for Immigration & Multicultural & Indigenous

REASONS FOR JUDGMENT 1 This is an application for review of the decision of the Migration Review Tribunal ("the Tribunal") handed down on 15 March 2002, which affirmed the refusal of the Minister's delegate of 5 March 2002 to grant to the Applicant a Bridging E (Class WE) visa. The factual background to today's application was summarised by the presiding member and for relevant purposes, may be summarised as follows: (a) The Applicant is a national of Indonesia who was born on 23 August 1968. (b) The Applicant arrived in Australia on 7 April 1996 on a subclass 676 visa that was due to expire on 2 July 1996. (c) On 25 September 1996 the Applicant applied for a protection visa and while that visa was being considered, he was granted a Bridging visa, which was valid until 6 April 2000. The protection visa application was refused on 10 October 1997, being a decision which was affirmed by the Refugee Review Tribunal on 2 March 2000. (d) On 27 March 2000, the Applicant made a request for Ministerial intervention under s 417 of the Migration Act 1958 (Cth) ("the Act"), and on 14 July 2000, he made an application for a Bridging E Visa on the basis of his pending request for Ministerial intervention. The application for Ministerial intervention was refused on 3 October 2000, and on 5 October 2000, the Minister's department refused to grant to the Applicant a Bridging E Visa, apparently because the ground on which the Applicant had applied for this Bridging Visa was no longer available. (e) On 22 February 2002, the Applicant was placed in Villawood Detention Centre, having been designated as an unlawful citizen, as a result of working in Australia without permission, and without any form of current Bridging Visa. (f) Thereafter on 1 March 2002 the Applicant applied for the subject Bridging Visa E - subclass 050 visa. In response to that application, the Minister's delegate on 5 March 2002 refused the same, on the ground that the Applicant had failed to satisfy any of the relevant criteria contained in sub-clause 050.212 of Schedule 2 of the Migration Regulations 1994 (Cth). (g) Subsequently, as a result of the refusal of the delegate to grant that Bridging Visa, the Applicant applied for review of that decision to the Tribunal in the circumstances, and with the outcome, described above. 2 This application falls for review under Part 8 of the Act, which commenced in operation on 2 October 2001 pursuant to Schedule 1, Clause 8(2) of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). Therefore the scope of review of this Court is confined to the terms of the privative clause defined by s 474 of the Act, and in my opinion, is to be governed by the limiting principles described in the recent decisions in NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 (Gyles J), NABM v Minister for Immigration and Multicultural Affairs [2002] FCA 335 (Beaumont J), Wang v Minister for Immigration and Multicultural Affairs [2002] FCA 477 (Hill J), and by my own decision Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617. Accordingly in my opinion, the present Tribunal decision is only reviewable under the privative clause if it was not made as a bona fide exercise of power under the Act, or it does not relate to the subject matter of the legislation, or it is not reasonably capable of reference to the power given to the decision maker. These are principles which derive from the decision of the High Court in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. 3 In written and oral submissions the Applicant, who appeared in person without an interpreter, but who obviously has no legal training, has been unable to address the legal obstacles that lie in his path for review of the Tribunal's decision. He struck me as a very frank and decent person, and I am inclined to accept as truthful the historical matters which he related to me. 4 The Applicant applied unsuccessfully for legal assistance from the Legal Aid Commission, the Law Society of New South Wales, the New South Wales Bar Association, and the Community Legal Centre at Surry Hills. The respective telephone numbers of those entities were endorsed on the piece of paper identifying the same, which he handed to me at the hearing, thereby corroborating his claim to have communicated with those bodies. 5 As recorded by the Tribunal, the Applicant feared his return to Indonesia because of certain matters appertaining to previous activities in his home country. He produced to the Court the same documentation as he had tendered to the Tribunal below, which included the translation of an order of the Indonesian National Police addressed to him, bearing date 29 December 2001, which was to provide information concerning an investigation into a so-called criminal matter, and to attend "at Head of the Investigation Unit at Gambir Metropolitan Sector, Jl Gidang Barat Dlm 12, Central Jakarta on Monday 7 January 2002 at 10am, in Room No TEAM 111, to hear the person's explanation as witness in a robbery with violence matter as set out in Paragraph 365 of the Criminal Code". He also presented documentation indicative for instance of danger presently involved to his brother and father in Indonesia, in the form of a certified translation of a doctor's certificate issued in Jakarta on 20 March 2002; that certificate was indicative of very serious injuries said to have been caused "by hands and blunt objects", and of legal action being taken in Indonesia in relation to his brother and father. 6 The Applicant speaks English fluently, and he writes neatly in English. He is presently in detention, having been found in illegal employment in Australia, apparently pursuant to his acquisition of a tax file number. He pleaded for permission to remain in Australia, asserting that he was a genuine refugee and "not a dollar hunter who look (sic) upon Australia as a milking cow". 7 The Applicant was unable to distil error in the reasoning of the Tribunal below, much less to demonstrate an entitlement to relief in the light of the recent privative clause provisions of Part 8 of the Act(as amended). After I explained those matters to him, the Applicant asked whether he would be able to return to Indonesia from detention in Australia pursuant to arrangements which he personally undertook to make. His chief reason was that he greatly feared returning to Indonesia under guard. The Applicant explained that although his passport had expired, he wished to return to Indonesia "with good intentions". 8 Prior to the incident in the Court which I will lastly relate, I had already formed the opinion that the Applicant was being frank and sincere in his statements made to the Court, and that he had a genuine fear of Army/Policy mistreatment, if he was seen to have been an expelled person who had unsuccessfully sought refugee status in Australia. Counsel for the Minister, after consultation with her instructing Solicitor, indicated to the Court that consistent with her professional duties, she would cause to be relayed the Applicant's requests to the Department for sympathetic consideration. 9 It was at that concluding point of the hearing that with an evident sense of great embarrassment, the Applicant passed to me a note in his own handwriting (now Exhibit "A3") which read as follows: "July 94 Jailed without trial for subversive activities - removed to a cell with 4 criminals - they raped me." Such "subversive activities" had apparently occurred when the Applicant was a university student. 10 In dismissing the application which I am obviously bound to do because of the absence of the Applicant being able to establish error on the part of the Tribunal, it is my recommendation to the Minister that the Applicant's requests cited above be accommodated as far as may be possible within the limits of Departmental restraints and procedures. As best as I could form a judgment in the short time of the hearing, I thought that the Applicant was a decent and sincere person in relation to what he was seeking to convey to and request of the Court. 11 I therefore dismiss the proceedings for review and make the inevitable order that the Applicant pay the Minister's costs of the proceedings. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.