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MIGRATION - Application for review of decision of Refugee Review Tribunal - privative clause decision - application dismissed.

NAMD v Minister for Immigration [2002] FMCA 333 (23 December 2002)

NAMD v Minister for Immigration [2002] FMCA 333 (23 December 2002)
Last Updated: 17 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAMD & NAME v MINISTER FOR IMMIGRATION
[2002] FMCA 333



MIGRATION - Application for review of decision of Refugee Review Tribunal - privative clause decision - application dismissed.



Judiciary Act 1903

Migration Legislation Amendment (Judicial Review) Act 2001

Migration Act 1958

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 498

NAAV v MIMIA [2002] FCAFC 228

WABY v MIMIA [2002] FCA 1091

NACL of 2002 v MIMIA [2002] FCAFC 387

SAAP of 2001 v MIMIA [2002] FCAFC 411

NAHT of 2002 v MIMIA [2002] FCA 1049

SBBS v MIMIA [2002] FCAFC 361

NAAG v MIMIA [2002] FCA 713

Muin v RRT [2002] HCA 30

WABZ v MIMIA [2002] FCA 1345

Applicant:
NAMD & NAME



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ637 of 2002



Delivered on:


23 December 2002



Delivered at:


Sydney



Hearing Date:


21 November 2002



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Mr J. Smith



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) That the application be dismissed.

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

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ637 of 2002

NAMD and NAME


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
The application

1. This is an application for relief under section 39B of the Judiciary Act 1903 in respect of a decision of the Refugee Review Tribunal (the Tribunal) which was handed down on 30 May 2002 affirming a decision of a delegate of the respondent to refuse to grant the protection visas to the applicants. The applicants are husband and wife. Only the applicant husband made specific claims under the Refugees Convention.

2. The applicants applied to the Federal Court on 24 June 2002 and the matter was transferred to this Court on 22 July 2002 by Hill J.

Background

3. The applicants are citizens of the Russian Federation. They claimed to be members of the Church of Scientology. The applicant husband complained that he and his wife had been harassed and insulted and received threatening letters after their neighbours became aware that they were Scientologists; that a local policeman had warned them that they were criminals spreading anti-Russian propaganda and that they could be charged with a criminal offence; that they were assaulted while affixing fliers advertising Scientology texts in public; that they continued to receive threatening phone calls and a further warning from the local police that there would be trouble if they did not stop their `sectarian activities'. After moving to the home of the applicant wife's parents, their flat was vandalised. The applicants claimed that the police failed to pursue an investigation because they were sectarians. The couple then moved. They continued to, as they put it, introduce their religion to people. Their home was burnt down. They then went into hiding at a friend's place and then left Russia. In a statement accompanying the original application the applicants indicated that they feared more suffering, persecution, unlawfulness and genocide if they returned to Russia.

The Tribunal decision

4. The delegate's decision to refuse protection visas was made on

23 March 1999. The applicants sought review by the Refugee Review Tribunal on 29 March 1999. They provided written submissions in support of the application for review and the applicant husband gave oral evidence to the Tribunal at a hearing held on 25 October 2000. The Tribunal decision was not made until 7 May 2002. It handed down on 30 May 2002. There is no explanation for this regrettable delay. It does not appear from the evidence before the Court that the Tribunal sought, or the applicants provided, additional submissions after the hearing on 25 October 2000.

5. Before the Tribunal it was submitted that the applicants were persecuted in the Russian Federation due to their religious beliefs. It was submitted that they were persecuted by ordinary people who, because of Russian official propaganda, believed that Scientologists and other religious minorities were enemies of the Russian people. The applicants were said to be deprived of protection and their house burnt down.

6. The Tribunal accepted that the first applicant was a member of the Church of Scientology and that it was plausible that he was targeted by people who had been led, through Orthodox Church-inspired propaganda, to regard Scientology as an aberrant sect. However the Tribunal also indicated that there was nothing which would suggest that the applicant husband would not be able to seek the protection of the State if he were to be threatened by such people in future. Nor was there evidence that the warning of the policeman (which the applicants took as official condemnation of the activities of the Church of Scientology) was allowed or encouraged within the authorities. The Tribunal accepted the applicant husband's claim that his house was ransacked and grafitti scrawled on the walls, but concluded that it could not find that this would amount to persecution as the applicant would have had recourse to the authorities.

7. The Tribunal had regard to independent evidence including an October 2001 annual report on international religious freedom from the US Department of State which came into existence after the Tribunal hearing. On the basis of this evidence it accepted that the Church of Scientology had, and continued to have, difficulties with the government in obtaining official registration in some cities. Vladivostok (the home of applicants) had not been mentioned in this context in the material before the Tribunal. Nor was the Tribunal satisfied that there was any evidence of persecution of Scientologists in Vladivostok. They had been forbidden to distribute certain medicines but this was said to be apparently because such medicines were regarded as dangerous by the health authorities. The Tribunal found that this did not imply that the Russian authorities would not offer the applicants protection against zealots in the future. The Tribunal continued:

The US report of October 2001 refers to the activity of such zealots who have specifically targeted Scientologists, and records that the authorities have successfully limited their activities in several regions. In addition, the evidence is that Scientology is a fast-growing and influential organisation in the new Russia, and has been accepted widely in government and business circles. I therefore find that the applicant would be able to practice his religion upon return, and in cases of harassment could obtain adequate State protection. Moreover, the chance that he would be persecuted again for reason of his religious belief is remote.

8. The Tribunal was not satisfied that the applicant husband was a person to whom Australia has protection obligations under the Refugees Convention. The fate of the applicant wife's claim depended on the outcome of her husband's claim as she made no specific Convention claims.

Contentions

9. In the application for review and accompanying affidavit sworn by the applicant husband it was claimed that the Tribunal's decision "contradicted" the principles of the UN Convention. It was submitted that the independent country report information relied on by the Tribunal in fact confirmed that oppression was suffered by members of the Church of Scientology. It was submitted that the Tribunal "purposely" ignored relevant facts and issues, and intentionally made its decision more than one year after the hearing took place and after the legislative changes in October 2001 to deprive the applicant of a `legal possibility' to challenge the decision. It was claimed that this established that the decision maker was not acting in good faith in making the decision.

10. It was also submitted that the decision was controversial and illogical. In written submissions the applicant claimed that he should have been given an opportunity to comment on the 2001 US Department of State Annual Report on International Religious Freedom relied on by the Tribunal. The 2001 report referred to problems the Church was experiencing with registration and with harassment from authorities. It was submitted that it was not reasonable to suggest that as the authorities were harassing members of the Church, he as a member of the Church would get protection from the authorities. Yet the Tribunal had said that there was nothing before the Tribunal which would suggest that the applicant would not be able to seek the protection of the State. The decision was also said to be illogical in claiming that the applicant would be able to practice his religion upon return and in case of harassment obtain adequate protection. It was submitted that the issue was not whether he would be able to practice his religion upon return but whether he would be persecuted for practising his religion upon return. Furthermore, it was suggested that the 2001 report did not support the Tribunal's conclusion that the applicant could obtain adequate State protection in case of harassment.

11. In oral submissions the applicant husband claimed that the failure to invite him to comment on the independent country information relied on by the Tribunal was in breach of section 424A of the Migration Act 1958 ("the Act"). It was also suggested that the decision was unlawful and illogical in finding that he could have recourse to the authorities if harassed because of the evidence from the country information report that the authorities had harassed the Church and also because the Tribunal seemed to have accepted in its reasons for decision that the applicants would be harassed on return to Russia.

12. In written submissions the respondent submitted that it could not be said that the Tribunal had failed to make a bona fide attempt to exercise its power or that an absence of good faith had been established. It was submitted that there was no evidence to support the applicant's contention that the Tribunal had deliberately delayed making its decision in order to take advantage of the privative clause. On the basis that independent country information relied on by the Tribunal did not all point in favour of the applicants it was submitted that the findings drawn from it by the Tribunal were reasonably open and not perverse, illogical or wrong. Hence it was submitted that there was an honest attempt by the Tribunal to exercise its powers. In oral submissions Counsel for the respondent submitted that while there was a delay in the making of the decision by the Tribunal and there was apparently no reason given by the Tribunal for such delay, such absence of an explanation and/or the delay could not of themselves give rise to a finding that there was something deliberate involved in the failure to make a decision for that time. It was also submitted that the circumstances of the introduction of the October 2001 legislation were such that it could not be said that the Tribunal had deliberately refrained from exercising its power for, at that time, some 12 months, to take advantage of the possibility of the introduction of the privative clause.

13. As to the claim that the Tribunal had failed to give the applicant an opportunity to address adverse material, it was submitted that there was no evidence to support the claim that the Tribunal had not given him an opportunity to address any material but that in any event the privative clause in section 474(1) of the Act would validate the decision. Similarly insofar as the claim was based on section 424A of the Migration Act, it was submitted that the exception within section 424A(3) applied. Further section 474 was said to expand the jurisdiction of the Tribunal and would validate the decision even if it had been established that the rules of procedural fairness were not followed. As to the claimed "illogicality" of the Tribunal decision it was submitted that, while the material relied upon by the Tribunal did state that the Church had experienced many problems with registration and harassment from the authorities, it also went on to say that Russian authorities had successfully limited the activities of zealots who had specifically targeted Scientologists and that there was no evidence of any harassment of the Church in Vladivostok. Indeed Scientology was said to be a fast-growing influential and widely accepted organisation in the new Russia. It was conceded that the material relied on by the Tribunal could have meant that it could have decided the matter differently but this was not the only logical inference or finding available on the material. The material was said to support the Tribunal finding that Scientology was fast growing, influential and widely accepted in government and business circles. Hence it was submitted that the findings were open to the Tribunal. In relation to the argument that it was illogical for the Tribunal to have found that the applicant would have recourse to authorities in light of the fact that it seemed to accept that he would be harassed on return, it was submitted that this argument misunderstood the nature of the definition of refugee which requires at least some element of State involvement or lack of involvement and it is to that level of State involvement that the Tribunal was addressing itself in accordance with the authorities. Furthermore it was claimed that any illogicality would not amount to a lack of a bona fide exercise of power. Nor could it be said that there were any inviolable conditions which had been contravened in this case.

The applicable law

14. The Tribunal's decision is a privative clause decision within the meaning of section 474(2) of the Migration Act 1958. It is subject to the limitations on judicial review prescribed by section 474(1) which were introduced by the Migration Legislation Amendment (Judicial Review) Act 2001 as applicable to all applications made to the Court as and from 2 October 2001. The effect of section 474 has been considered by the Full Court of the Federal Court in NAAV v MIMIA [2002] FCAFC 228. The five judges constituting the Full Court agreed that section 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 and Clinton (1945) 70 CLR 498. 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.

15. 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 pre-condition for a valid decision. Furthermore, NAAV has established that the effect of the privative clause 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.

The present case

16. The applicants are self-represented. I have considered the claims made by them and whether the material before the Court reveals any reviewable error.

17. The main arguments raised by the applicant husband are that there has been a breach of section 424A in relation to the 2001 report and more generally bad faith constituting a lack of a bona fide attempt by the Tribunal to exercise its power. This claim is based on the delay in the making of the Tribunal decision, the failure to invite comment on the 2001 country information report, and the allegation that the decision maker made an illogical decision and ignored relevant facts and issues.

18. The Tribunal hearing was in October 2000. In its decision of 7 May 2002 the Tribunal relied on the 2001 US Department of State Annual Report on International Religious Freedom issued on 26 October 2001. It did not bring this information to the attention of the applicants or invite their comments prior to making its decision. The applicants allege a breach of section 424A(1) which requires the Tribunal to give applicants particulars of any information that would be the reason or part of the reason for affirming a decision and to invite comment on it. However, subsection 424A(3) provides:

This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application; or

(c) that is non-disclosable information.

19. The information in the 2001 Report (which is reproduced in the bundle of relevant documents provided to the Court) is not specifically about the applicant or any other person. It is about religious freedom for organisations such as the Church of Scientology and about a class of persons (Scientologists) of which the applicant is a member. No information specifically about the applicants or their case has been shown to exist. The information in the 2001 report is within the exception in section 424A(3)(a) by reason of its generality (see WABY v MIMIA [2002] FCA 1091 and NACL of 2002 v MIMIA [2002] FCAFC 387). No breach of section 424A is established. In any event a decision involving a breach of section 424A would be protected by the privative clause in section 474(1) (see von Doussa J in NAAV at [635] and [672] with whom Beaumont J agreed and Black CJ at [4] and [37] and also NACL of 2002 v MIMIA [2002] FCAFC 387 in which the Full Court of the Federal Court confirmed that the effect of section 474(1) is to protect a Tribunal's decision from invalidity on account of breach of the requirements of section 424A(1)). Further, in SAAP of 2001 v MIMIA [2002] FCAFC 411 a Full Court held that compliance with section 424A was not an essential precondition to a valid exercise of power by the Tribunal and that section 474 will operate to render effective a decision despite a breach of section 424A.

20. It is claimed that the absence of an opportunity to comment on the material constituted a lack of procedural fairness (either alone or in combination with the delay in the making of the Tribunal decision). While the October 2001 report was not drawn to the applicant's attention and while the unexplained delay is regrettable, NAAV establishes that the effect of the privative clause is to exclude the rules of procedural fairness (see Beaumont J at [113] - [114], von Doussa J at [637] - [639] and [648] - [649] and Black CJ at [4] and also see NAHT of 2002 v MIMIA [2002] FCA at [35]). This makes it unnecessary, strictly speaking, to determine whether there was a lack of procedural fairness. I note however that I would not be satisfied that the delay in decision-making constituted a lack of procedural fairness and that there is no evidence of any material which the applicant would have put to the Tribunal had the 2001 report been drawn to his attention (cf Muin v RRT [2002] HCA 30).

21. The applicants also claim that the circumstances of the decision and the decision-making process are such as to amount to bad faith and hence an absence of a bona fide attempt by the Tribunal to exercise its power. In SBBS v MIMIA [2002] FCAFC 361 at [42] - [48] the Full Court of the Federal Court summarised the principles applicable in relation to such a claim.

22. It is clear that the fact of a delay in decision making does not, of itself, establish bad faith or an absence of an honest and genuine attempt by the decision-maker to undertake the task required by the Migration Act (see NAHT at [36] and NAAG v MIMIA [2002] FCA 713 at [24] and see to the same effect, WABZ v MIMIA [2002] FCA 1345). No breach of any statutory requirement of the Act has been established. This is not a case where there has been a "blatant" or "reckless" disregard for procedural requirements. In WABZ v MIMIA at [40] Carr J suggested that "failure to accord procedural fairness when added to blatant disregard of statutory requirements might, in an appropriate case, justify an inference that the decision-maker has not honestly attempted to exercise the relevant statutory power". I agree that this may be so but in this case, given my conclusion in relation to section 424A, there is no evidence of disregard of statutory requirements. Nor, despite the failure to draw the 2001 report to the attention of the applicant, has it been established that the Tribunal "recklessly disregarded" its obligations to provide procedural fairness (SBBS at [58]). As the Full Court of the Federal Court noted at [56] in SBBS it is a "large step" from a finding of denial of procedural fairness "to a personal criticism of the decision-maker which would result from a finding of bad faith". The evidence before me does not warrant the taking of such a step.

23. Further, mere error of fact or law or irrationality (as was argued by the applicants) in a decision does not of itself demonstrate lack of good faith. Bad faith "is not to be found simply because of poor decision making". The circumstances do not show capriciousness. While the material before the Tribunal (in particular the 2001 report) could have meant that a differently constituted Tribunal may have decided the matter differently, this does not establish bad faith where, as here, the Tribunal considered material before it which did not all support the applicant's case, gave reasons for its decision based on that material and made an attempt to deal with the matter before it. There is no clear evidence sufficient to give rise to an inference that the Tribunal member acted dishonestly or arbitrarily or capriciously.

24. Taking all the circumstances into account it has not been established that the Tribunal failed to make a bona fide attempt to exercise its power. Nor is there anything to suggest that the decision did not relate to the subject matter of the legislation, that it was not reasonably capable of reference to the power given to the decision maker or that there was a breach of any inviolable limitation or structural element in the operation of the Migration Act. It follows that the applicant's claim for relief pursuant to section 39B of the Judiciary Act 1903 must be dismissed.

25. I therefore dismiss the application and order that the applicants pay the respondent's costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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