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MIGRATION: Application for review of decision of Refugee Review Tribunal - no jurisdictional error - privative clause decision - application dismissed.

NALT v Minister for Immigration [2002] FMCA 267 (20 November 2002)

NALT v Minister for Immigration [2002] FMCA 267 (20 November 2002)
Last Updated: 3 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NALT v MINISTER FOR IMMIGRATION
[2002] FMCA 267



MIGRATION: Application for review of decision of Refugee Review Tribunal - no jurisdictional error - privative clause decision - application dismissed.



Judiciary Act 1903

Migration Act 1958

Migration Legislation Amendment (Judicial Review) Act 2001

NAAV v MIMIA [2002] FCAFC 228

Muin v RRT [2002] HCA 30

R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598

NADR v MIMIA [2002] FCA 293

Craig v South Australia (1995) 184 CLR 163

SBBK v MIMIA [2002] FCA 565

NAAG v MIMIA [2002] FCA 713

Zahid v MIMIA [2002] FCA 1108

NANG v MIMIA [2002] FCA 1138

Applicant:
NALT



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ590 of 2002



Delivered on:


20 November 2002



Delivered at:


Sydney



Hearing Date:


10 October 2002



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Michael Jones



Counsel for the Respondent:


Mr R. Bromwich



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) That the application be dismissed.

(2) That the applicant pay the respondent's costs.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ590 of 2002

NALT


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
The application

1. This is an application for relief under s.39B of the Judiciary Act 1903 in respect of a decision of the Refugee Review Tribunal (the Tribunal) which was handed on 23 May 2002 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.

2. The applicant applied to the Federal Court on 20 June 2002 and the matter was transferred to this Court on 22 July 2002 by Moore J.

3. In his original application and accompanying affidavit the applicant argued that the Tribunal had failed to take into account relevant considerations or ignored relevant material and hence made its decision in breach of an indispensable condition for the exercise of its power under the Migration Act 1958 or failed to properly exercise its jurisdiction under that Act. By an amended application filed on

15 August 2002 the applicant included as a ground of review the ground that the Tribunal failed to comply with the "overriding duty to accord procedural fairness to the applicant, with the result that the decision was beyond the jurisdiction of the Tribunal to make".

Background

4. The applicant is an ethnic Indian citizen of Fiji. He arrived in Australia on 16 December 2000 and applied for a protection visa on 29 January 2001. In his application he claimed that he was forced to work (as a mechanic) for no payment for members of the Taukei movement in Fiji and that when he could not repair their vehicles as quickly as required they would start kicking him and punching him. He also claimed that his belongings were taken and properties damaged. He claimed that sometimes they "would put the gun on my back and force me to repair their vehicle fast or else they would shoot me". He claimed to fear that they would make him their slave and then they would kill him if he returned to Fiji. He identified the people who would harm him as supporters of the Taukei movement and rebels of the army who forced him to repair their vehicles. He claimed that the authorities in Fiji could not protect him because they were helpless due to the number of rebels in the department. He added that an Indian who complained would be chased away.

5. His application for a protection visa was refused by a delegate of the respondent on 19 February 2001. The delegate listed in Part B of her decision a number of documents used by her in making her decision. These documents consisted of US State Department Country Report on Human Rights 1999, a number of Country Information Service Reports and two media reports (the Part B documents).

6. The applicant sought review by the Refugee Review Tribunal on

14 March 2001. The Tribunal wrote to the applicant on 14 March 2001. The letter contained the following statements:

"We have asked the Department to send a copy of its documents about your case to the Tribunal. When we receive the Department's documents, the Tribunal will look at your papers and decide whether it has jurisdiction to consider your application. If so, it will then look at your papers along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour."

7. The letter asked the applicant to provide copies of any new documents or written evidence but not to send material already given to the Tribunal or Department. The applicant provided to the Tribunal a copy of a document from a "Crime Officer Police Station Tavua" dated

6 January 2002 as to numerous complaints by him about violent attacks and ongoing investigation during the year 2000. On 29 January 2002 the Tribunal wrote to the applicant requesting additional information in relation to his claims of threats and attack and also asking why he did not believe that he had effective protection. On 11 February 2002 the applicant's migration agent replied to this letter with a letter from the applicant indicating that he had been harassed, threatened and attacked and forced to repair vehicles for supporters of the Taukei movement and the Rebel Army. He claimed that due to fear of being killed and the threats from the native Fijians he did not have the courage to report the matter to the police.

8. On 11 March 2002 the Tribunal again wrote to the applicant stating that it had looked at all the material relating to his application but was not prepared to make a favourable decision on this information alone and inviting him to attend at Tribunal hearing. The applicant attended a hearing on 26 April 2002.

The Tribunal decision

9. The applicant failed before the Tribunal because, while it was accepted that he had been assaulted and robbed and had his tools taken, the Tribunal was not satisfied that he had suffered persecution. This was because the Tribunal was not satisfied that the harm that the applicant had suffered or feared was encouraged by the Fijian government or that the Fijian government was powerless to prevent it. The Tribunal was satisfied that the applicant, whilst a victim of low level theft and assault, had been able to access the police when he reported these crimes. It noted that his claims had been investigated and were the subject of an ongoing investigation. Reference was made to independent country information to support the conclusion in relation to the willingness and ability of the State to protect the applicant. The Tribunal concluded that the chance that harm, let alone harm amounting to persecution, would befall the applicant, an Indo-Fijian, in the reasonably foreseeable future for reasons relating to his race or religion was remote. The Tribunal was not satisfied that every Indo-Fijian in Fiji suffered from discrimination sufficiently serious to amount to persecution and on the basis of the evidence was not satisfied that all the harms complained of by the applicant gave rise to a real chance of persecution now or in the reasonably foreseeable future.

Contentions

10. The applicant claimed that the Tribunal erred in failing to take into account evidence that he was forced to carry out work for ethnic Fijians without payment because of his ethnicity and the claims that there was no effective recourse to the authorities to prevent this and that such treatment amounted to a form of slavery to which he would continue to be subject on his return to Fiji (even if other types of persecution such as physical assault and robbery did not occur). He argued that the issue as to whether he would be forced into a form of slavery on the basis of his ethnicity was relevant to his claim to be refugee within the meaning of the Convention. In oral argument his solicitor claimed that this argument did not seek merits review. The question was the Tribunal's understanding of the nature of the definition of refugee. It was suggested that the Tribunal had approached the question as if the applicant feared only physical violence because it did not see forced labour as a form of persecution. It was suggested that this was a jurisdictional error and that review was not prevented by the privative clause on the reasoning of Black CJ at paragraphs [14] and [15] of NAAV v MIMIA [2002] FCAFC 228 in relation to the concept of an inviolable limitation. It was submitted that the definition of refugee in the Convention is so central to the work of the Tribunal that the misunderstanding of the Tribunal in this case violated an essential structural element of the legislation.

11. It was also argued that the Tribunal had failed to accord procedural fairness to the applicant on the same basis as had been considered by the High Court in Muin v RRT [2002] HCA 30. However, the solicitor for the applicant conceded that if the privative clause was valid in its entirety and if the judgment of the majority in NAAV was correct then a decision which involved such a denial procedural fairness would be validated. He formally submitted that NAAV was incorrectly decided.

12. In response Counsel for the respondent submitted that the argument in relation to Muin fundamentally misconceived. In that case there was a particular factual matrix consisting of the agreed facts which was absent in this case. There was no evidence before the Court that the Tribunal had not considered the Part B material, that the material was relevant at the time of the Tribunal decision or that there was anything in the material that the applicant would have brought to the Tribunal's attention. It was also pointed out that the Part B material in question was country information and that the Tribunal in fact took into account more recent country information. Further it was submitted that in any event the privative clause dispenses with procedural fairness as a ground for review.

13. As to the argument in relation to the alleged fear of `slavery' it was said that the applicant's argument was a misunderstanding of what was said by the Chief Justice in NAAV and that there was no inviolable limitation contravened in this case. In any event it was suggested that the Tribunal did consider and analyse the applicant's claims. It had concluded that the chance of harm befalling the applicant in the reasonably foreseeable future was `remote'. Furthermore it had taken account of all the harms complained of by the applicant in concluding that this did not give rise to a real chance of persecution now or in the reasonably foreseeable future. The Tribunal specifically considered the question of whether the applicant was likely to be harmed if he returned to Fiji and properly concluded that, as it had found that the applicant had not been harassed or harmed for a Convention reason in Fiji, it was not satisfied that he had a well founded fear of Convention based persecution on his return to Fiji. It was submitted that the applicant must fail on its facts and that in any event the privative clause would mean that there was no remedy.

The applicable law

14. The Tribunal's decision is a privative clause decision within the meaning of s.474(2) of the Migration Act 1958 and is thus subject to the limitations on judicial review prescribed by s.474(1) which were introduced by the Migration Legislation Amendment (Judicial Review) Act 2001 as applicable to all applications made to the Court on and from 2 October 2001.

15. The effect of s474 has been considered by the Full Court of the Federal Court in NAAV v MIMIA. In that case the five Judges constituting the Full Court agreed that s.474(1) is not to be read literally but is to be construed in the same manner as the kind of privative clause considered in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598. In that case Dixon J identified three conditions which, if met, would ordinarily mean that a decision which is the subject of a privative clause would be valid, namely:

a) the decision is a bona fide attempt to exercise the power conferred on the decision maker;

b) the decision relates to the subject matter of the legislation; and

c) the decision is reasonably capable of reference to the power conferred on the decision maker.

16. There was also broad agreement in NAAV that the purported exercise of power by the decision maker must not be one that contravenes what is variously described as an `inviolable limitation or restraint' (Black CJ at [12]), a `final limitation upon the powers, duties and functions of the decision maker' (von Doussa J at [619]) or a `structural' element in the operation of the Act (Black CJ at [37]). As a matter of construction, the broad statement of legislative intention expressed in a privative clause may be displaced by a provision which makes clear Parliament's intention that the observance of some procedure or the proper consideration of some issue is to be a precondition for a valid decision.

The present case

17. The applicant submitted that the Tribunal denied him procedural fairness by not having regard to the Part B documents which it was said it had led him to believe had been taken into account. I note that in NADR v MIMIA [2002] FCA 293 the Full Court of the Federal Court held that Muin does not establish, as the submissions for the applicant imply, that the effect of sending a letter in the terms of the Tribunal's letter of 11 March 2002 will amount to a denial of procedural fairness in circumstances where the Tribunal has not referred to the Part B documents in its later decision (see Kiefel J at [24]). Rather, as was indicated in that case, it holds that `there is want of procedural fairness where an applicant before a Tribunal is misled into thinking that the Tribunal has considered particular relevant information and, as a result, did not ensure that such information was placed before it.' As in NADR at a factual level the present case differs from Muin. In particular it is not agreed that the documents referred to as the Part B documents were not physically provided to the Tribunal. While the Tribunal reasons for decision do not refer to the documents listed in Part B there is reference to a number of documents which it appears came into existence after the Departmental decision of 19 February 2001. The applicant has not established that he was misled into thinking that the Tribunal had considered particular relevant information and that as a result he did not ensure that such information was placed before it. There is no indication either in the applicant's written submissions, or in the oral submissions, of what particular steps he would have taken had he been told, if it was the case, that the Tribunal had not been provided with any or all of the Part B documents. In particular the applicant does not identify the particular information in the Part B documents which he believed the Tribunal had taken into account and which he would have ensured was placed before it had he been advised that this was not the case.

18. Accordingly, as in NADR, it has not been established that there was a denial of procedural fairness. Furthermore, as was conceded by the solicitor for the applicant, NAAV has established that the effect of the privative clause (which did not apply in Muin as the original application for judicial review was made prior to 2 October 2001) is, in effect, to validate jurisdictional errors including a breach of the rules of natural justice (see von Doussa J at [628]-[638], Black CJ concurring at [4] and Beaumont J at [91] and following and also at [114]-[116]). Thus the effect of the introduction of the privative clause is to exclude the rules of procedural fairness.

19. The second ground raised by the applicant is that the Tribunal failed to take into account his claim that he would be forced into a form of slavery on the basis of his ethnicity and that such failure meant that the Tribunal made its decision in breach of an inviolable limitation on the exercise of its power under the Act. However, while not using the expression `slavery' the Tribunal did expressly refer to the claims of the applicant that in the past he had been required to repair the vehicles of certain ethnic Fijians for free to avoid physical assault (page 57 of the Court Book) and it is this that he claims to fear if he has to return to Fiji. The Tribunal referred to his fears of harassment and retribution. It accepted that the applicant had had a number of incidents occur to him. He was robbed, had his tools taken, was the victim of extortion and had stones thrown at his house. The applicant was found not to have suffered to persecution because the harm that he suffered or feared was not encouraged by the Fijian government. Nor was the Tribunal satisfied that the Fijian government was powerless to prevent such harm. It noted that the applicant had in fact complained to the police about various incidents and that his complaint was under investigation. It also noted country information which suggested that some Indo-Fijians remained at risk of intimidation and harassment but not at risk of significant communal mistreatment. The Tribunal concluded that the chance of harm befalling the applicant in the reasonably foreseeable future for reasons relating to his race or religion was remote. It was not satisfied that "all the harms complained of" (which would include the forced repair of vehicles referred to as a claim of the applicant) gave rise to a real chance of persecution. Further, on the basis that the applicant had not been "harassed or harmed" for a Convention reason in Fiji the Tribunal was not satisfied that he wad a well-founded fear of Convention-based persecution on his return to Fiji. Despite the absence of an express reference to `slavery' I consider that the Tribunal directed its mind to the evidence and claims of the applicant in this respect. It has not been established that the Tribunal failed to take into account the claims of the applicant in relation to being forced into forced labour on his return to Fiji.

20. In any event, had the Tribunal failed to take into account a relevant consideration, the decision in NAAV would validate the decision. First, insofar as a failure to take into account a relevant consideration was a jurisdictional error in the sense identified in Craig v South Australia (1995) 184 CLR 163, it would be validated by the privative clause (see Black CJ in NAAV at [30], von Doussa J at [636]-[639] and Beaumont J at [277]). While Black CJ at [15] indicated that certain provisions in an Act may have the character of an `inviolable limitation' or essential structural element, he went to say at [30] that:

"I agree that the enactment of s474(1) has the consequence that an error of law on the part of the Minister or delegate in reaching the satisfaction that operates as a precondition to power to grant and cancel visas under the Act does not result in every case in the decision being invalid. I accept that s474(1) may be taken to provide the `contrary intent' which gives the administrative decision maker authority to make a decision otherwise than in accordance with law, referred to in Craig v South Australia (1995) 184 CLR 163 at 179. For this reason, I take s474(1) to express the Parliament's intention that the Minister's satisfaction is to be taken to exist even if the Minister (or a delegate) has identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material.

21. Such is the essence of the applicant's claim in this case. The applicant's argument that in this case there was a breach of an `inviolable limitation' in the Migration Act relies on the approach of Tamberlin J in SBBK v MIMIA [2002] FCA 565. In that case His Honour had found that the Tribunal had failed to address a central question (namely whether the applicant was a member of a particular social group). This was said to constitute a fundamental error of principle. Tamberlin J took the view that consideration of the matters set out in s.65(1)(a)(i)-(iv) of the Act was an essential precondition to the performance by the Minister of the duty under s.65 of the Migration Act and that a failure to consider such matters was not protected from the review by the privative clause. This approach was disapproved by von Doussa and Beaumont JJ in NAAV. Von Doussa J indicated that he shared the difficulty expressed by Allsop J in NAAG v The Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 at [59]-[60] about Tamberlin J's conclusion in SBBK that an error of law in failing to identify the right question to be addressed in the applicant's claim constitutes a failure to comply with a condition that is essential to the exercise of jurisdiction of the RRT. He indicated (at [639]):

"In my opinion the jurisdiction of the RRT was attracted by a valid application to the RRT made under section 414 to review an RRT reviewable decision. Once that jurisdiction was enlivened, the manner of exercise of the authority and powers of the RRT came within the expanded area of authority and powers brought about by section 474(1) that the consequence that the decision of the RRT was lawfully made. This consequence arises even if in the absence of section 474(1) the decision would have been infected with the jurisdictional error of the Craig type because the wrong question had been asked."

22. The issue is whether Black CJ agreed with this approach such that it represents the view of the majority of the Full Court. In Zahid

v MIMIA [2002] FCA 1108 Sackville J clearly and succinctly analysed the judgments of von Doussa J and Black CJ in relation to this issue.

I respectfully agree with his analysis in Zahid at [73] and following. As he suggests, it seems to be clear on von Doussa J's reasoning that s.474(1) protects a Tribunal decision against invalidity where the decision maker has failed to identify the right question to be addressed. Similarly it would protect a decision involving a failure to take into account a relevant consideration. Furthermore contrary to the submission of the applicant the reasoning of Black CJ does not leave it open to conclude that s.474(1) does not validate a decision where the Tribunal has ignored relevant material in the sense complained of by the applicant. This is specifically stated by Black CJ at paragraph [30] which is quoted above. While Black CJ did not agree with Beaumont and von Doussa JJ in Turkan and in Wang, such cases involved different issues (see Sackville J in Zahid at [82]). I accept that the effect of the majority NAAV is that SBBK should not be followed unless or until the High Court takes a different view. In this respect

I agree with and respectfully adopt the reasoning of Sackville J in Zahid v MIMIA and also note the decision to the same effect of the Full Court of the Federal Court in NABM v MIMIA [2002] FCAFC 294 at [25].

23. The applicant does not contend, and there is nothing to suggest, any lack of good faith or that the decision was not a bona fide attempt to exercise power by the Tribunal. I am satisfied that the decision related to the subject matter of the legislation and was reasonably referrable to the power conferred on the Tribunal. It was not suggested nor am I satisfied that any requirement of the Act that was necessary to attract the Tribunal's jurisdiction was not met. In these circumstances the applicant's claim for relief must be dismissed.

24. I therefore dismiss the application. As the applicant has been wholly unsuccessful in these proceedings it is appropriate that he meet the respondent's costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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