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MIGRATION - Review of a decision of the Refugee Review Tribunal affirming a decision of a ministerial delegate not to grant a protection visa - operation of the privative clause in the Migration Act - whether any reviewable error disclosed - whether the RRT decision shows pre-judgement - whether the decision was made bona fide - whether an essential requirement of the Migration Act was breached.

WAAK v Minister for Immigration [2002] FMCA 86 (26 June 2002)

WAAK v Minister for Immigration [2002] FMCA 86 (26 June 2002)
Last Updated: 27 June 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAAK v MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
[2002] FMCA 86



MIGRATION - Review of a decision of the Refugee Review Tribunal affirming a decision of a ministerial delegate not to grant a protection visa - operation of the privative clause in the Migration Act - whether any reviewable error disclosed - whether the RRT decision shows pre-judgement - whether the decision was made bona fide - whether an essential requirement of the Migration Act was breached.



Federal Court of Australia Act 1976 (Cth), s.32AB

Federal Court Rules

Judiciary Act 1903 (Cth), ss.39B or 44

Migration Act 1958 (Cth), ss.420, 427, 474(2), 476

Alamdar v MIMA [2000] FCA 1244

Lachmi v MIMA [2002] FMCA 19

MIMA v Eshetu (1999) 197 CLR 611

Moradgholi v MIMA [2000] FCA 13

NAAG of 2002 v MIMIA [2002] 713

NAAX of 2002 v MIMIA [2002] FCA 263

NABM of 2002 v MIMIA [2002] FCA 335

R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598

R v Murray; ex parte Proctor (1949) 77 CLR 387

SAAG v MIMIA [2002] FCA 547

SBAN v MIMIA [2002] FCA 591

SCAA v MIMIA [2002] FCA 668

Sun Zhan Qui v MIEA (1997) 81 FCR 71

W133/1A v MIMA [2002] FCA 395

W195/01A v MIMA [2002] FCA 396

Applicant:
WAAK



Respondent:


MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS



File No:


WZ63 of 2002



Delivered on:


26 June 2002



Delivered at:


Perth, via videolink from Sydney



Hearing Date:


14 May 2002



Judgment of:


Driver FM



REPRESENTATION

Applicant appeared in person






Counsel for the Respondent:


Mr P R Macliver



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

THE COURT DECLARES THAT:

1. The decision of the Refugee Review Tribunal given on 24 September 2001 is invalid and of no effect.


FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ63 of 2002

WAAK


Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction

2. The applicant is an Iranian national who seeks an Australian protection visa. He is an admitted pornographer and his case is founded on the proposition that he may be stoned to death if he returns to Iran. The delegate of the Minister was not persuaded that the applicant is a person to whom Australia has any obligation to give protection and refused his application. The Refugee Review Tribunal ("the RRT") agreed.

3. There is a steady stream of applicants coming before the RRT, and now this Court, in similar circumstances. Applicants like the present are persons who have arrived in Australia unlawfully, typically from Iran. Many are patently economic migrants who are simply seeking a better life in Australia. Frequently, applicants will make this clear in their initial arrivals interview and belatedly advance another story in order to fit the template of a refugee. Other applicants will be more consistent but Commonwealth officials investigating their claims have proved adept at finding inconsistencies in order to support a conclusion that an applicant is untruthful. The same propositions advanced by applicants tend to recur frequently. No doubt asylum seekers, while kept in detention for extended periods, discuss their cases among one another. Faced with a procession of such cases it is easy for decision makers, including judges, to become cynical. That is a risk to be guarded against because decision makers who become cynical tend to pre-judge applications. The issue in this case is whether the RRT pre-judged the application of this applicant.

4. I note at this point that his Honour Lee J of the Federal Court issued a certificate under Order 80 of the Federal Court Rules for the applicant to be legally represented in these proceedings. Despite attempts being made by the joint registry in Perth no legal representation has been found for the applicant. That is particularly unfortunate in this case as important issues were raised. The need to guard against cynicism concerning such applications extends also to the legal profession. The legal profession has a proud record of offering pro bono assistance to deserving applicants. A means needs to be found to ensure that deserving applicants in migration proceedings receive that assistance.

Background

5. I have been assisted by written submissions filed by the solicitors for the Minister on 10 May 2002. I adopt as accurate the background information provided by the solicitors in paragraphs 1 to 7 of those submissions. Further written submissions have been filed by both parties concerning issues dealt with at trial, although the applicant's further submissions did not add materially to his original written and oral submissions.

Consideration and findings

6. The applicant seeks to review the RRT's decision made on 24 September 2001 affirming the delegate's decision to refuse to grant a protection visa. The application before me was lodged with the Federal Court of Australia on 5 October 2001. It is therefore caught by amendments made to the Migration Act 1958 (Cth) ("the Migration Act") with effect from 2 October 2001. Those amendments both confer jurisdiction on this Court concurrently with the Federal Court and fundamentally alter the nature of that jurisdiction. The key change takes the form of a privative clause which, on its face, precludes any judicial review of a privative clause decision. However, the respondent Minister has conceded, and I have previously found, that the privative clause must be read subject to authority on the interpretation of such clauses. The Minister has submitted, and I have previously found, that the net effect is to narrow substantially the available grounds of review.

7. Pursuant to s.474(2) of the Migration Act the RRT's decision is a privative clause decision. Where an application is made to the Federal Court on or after 2 October 2001 to review a privative clause decision and the proceeding is transferred to this Court under s.32AB of the Federal Court Act 1976 (Cth), this Court only has jurisdiction if the Federal Court had jurisdiction pursuant to ss.39B or 44 of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). The application did not seek relief under s.39B of the Judiciary Act and s.44 is not presently relevant. However, noting that the applicant is self represented I have treated his application as if it were an application for prerogative relief pursuant to s.39B.

8. In previous cases I have taken the approach of deciding how the privative clause operates before considering whether any grounds of review could be made out by the applicant. At the present time the Full Federal Court has reserved judgment in five cases for the purpose of resolving conflicting single judge decisions of that Court on the interpretation of the privative clause. I have considered whether I should await the outcome of those cases. The interpretation which I have to date placed upon the privative clause is very close to that submitted on behalf of the Minister. Whatever else may come out of the cases before the Full Federal Court it will not be an interpretation of the privative clause which narrows the available grounds of review more than is argued for by the Minister. In the circumstances I have decided that I should consider whether this present application can be granted on the basis of the interpretation of the privative clause that I have followed to date.

9. In the case of Lachmi v MIMA [2002] FMCA 19 I set out my understanding of the operation of the privative clause. In that case I found that this Court, like the Federal Court, is only able to review a decision of the RRT on three bases. Those bases are first, that the decision was not a bona fide or genuine attempt to exercise the decision-maker's power; secondly, that the decision displayed a constitutional or statutory jurisdictional error on its face; or thirdly that the decision did not relate to the subject matter of the legislation or was not reasonably capable of reference to the power given to the RRT.

10. The solicitors for the Minister have submitted that the only available grounds of review are those that can be drawn from the seminal decision of the High Court in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 are: first, that the constitutional authority of the Parliament to define the powers of a decision maker has been exceeded; secondly, that the exercise of power was unrelated to the subject matter of the legislation; or, thirdly, that the decision was, on its face, not a bona fide attempt to act in the course of the decision maker's authority. However, the solicitors acknowledge that the relevant authorities on the interpretation of privative clauses do not end there. In particular, in R v Murray; ex parte Proctor (1949) 77 CLR 387 at 399-400 Dixon J described what I accept is the correct approach to the interpretation of a privative clause. That approach requires me to construe the privative clause in order to resolve any apparent inconsistency between the privative clause and other provisions in the Migration Act. Consistently with the Minister's solicitors' submissions, and the authorities referred to at paragraph 24 of those submissions, the grounds of review set out in Hickman must be refined by reference to the concept of narrow jurisdictional error. That error must be apparent on the face of the record of the decision subject to review and must indicate that the decision maker misconceived his role, or misunderstood the nature of his jurisdiction, or misconceived his duty, or failed to apply himself to the question which the legislation prescribes or misunderstood the opinion which he had to form. Moreover, accepting (as I do) paragraph 25 of the Minister's solicitors' submissions, the jurisdictional error identified must involve a breach of an essential precondition to the exercise of power contained in the relevant legislation. That is, in shorthand form, the interpretation which I adopted in Lachmi.

11. Since then there have been a significant number of decisions of single judges of the Federal Court on the interpretation of the privative clause. Those decisions are set out in the list of authorities filed by the respondent. There are also some others. The view that I took in Lachmi is broadly consistent with some of those single judge decisions: NAAX of 2002 v MIMIA [2002] FCA 263 and NABM of 2002 v MIMIA [2002] FCA 335.

12. On 5 June 2002 in the matter of NAAG of 2002 v MIMIA [2002] FCA 713 his Honour Allsop J expressed support for the approach taken in NAAX. His Honour explained that the privative clause does not narrow the jurisdiction of the Federal Court, or this Court, under s.39B of the Judiciary Act. What the privative clause does is to substantially broaden the executive authority to act under the Migration Act. The privative clause bears on the exercise of executive power, not the exercise of judicial power. I respectfully agree with his Honour's analysis. The practical effect of the privative clause is to narrow the available grounds of attack upon the executive decision. Where the privative clause applies the executive decision will be within lawful authority if it was reached bona fide, if it fell within the limit of the subject matter provided for in the statute conferring the power and was reasonably capable of reference to the power conferred on the decision maker. As a matter of statutory construction, that analysis requires consideration of any essential requirements of the Migration Act that can be taken to confine or regulate the decision-making power. These elements are conveniently summarised by Allsop J at paragraph 31 of NAAG.

13. I adopt the same approach to the interpretation of the privative clause in this case. I have approached this matter on the basis that the only grounds of review that could potentially be made out by the applicant are either that the decision of the RRT was not a bona fide attempt to exercise its decision-making power or that the RRT had committed a jurisdictional error by breaching an essential requirement of the Migration Act.

14. In this matter the applicant has filed an outline of submissions which he expanded upon at the trial of this matter on 14 May 2002. The applicant makes the following complaints about the RRT decision. First, he says that the RRT rejected a request to postpone his hearing before the RRT so that he could change his lawyer: court book, page 87 and paragraphs 51 and 52 of the RRT decision. The applicant was not represented when he gave evidence to the RRT on 7 September 2001. He advised the RRT that he had not changed his migration agent and that he wanted a postponement as he did not feel well. The applicant was offered a short break but informed the RRT that he was okay. I am satisfied that the applicant elected to proceed with his hearing before the RRT at that stage and that no legal error was committed by the RRT in proceeding as it did.

15. Secondly, the applicant says that the RRT's reasons for rejecting his account of events at and following a children's birthday party in 1999 were incorrect: paragraphs 79-82 of the RRT decision. The applicant claimed that he was commissioned to film the birthday party. He claimed that he and others at the party consumed alcohol and that women danced in Western clothes. He claimed that the authorities raided the party, and that he was detained, mistreated, charged, tried, convicted and sentenced by a revolutionary court to 75 lashes in public, a heavy fine and the cancellation of his business licence, which he used to conduct a video production business. At paragraph 80 the presiding member said:

I am reluctant to accept the credibility of the applicant's evidence in this matter. The applicant claimed to have been lashed, but there were no marks or scars attributable to lashing on his back or neck. He had no explanation as to why there were no marks. He claimed to have been lashed in 1999. It would be expected that if the applicant had been lashed as he claimed, there would be scars or marks visible.

16. At paragraph 82 the presiding member found that the incident alleged by the applicant did not happen. The presiding member said:

The applicant's evidence about the incident was generalised, lacked detail and was implausible. The incident described did not sound like a children's birthday party, with dancing and alcohol. The sudden appearance of the Sepah Pasdaran was also implausible, considering the applicant's evidence that the family was wealthy and had influence. As to being detained, charged, tried, convicted and sentenced, the applicant had no scars or marks on his back indicating that he had not been lashed. This undermines the credibility of his evidence in regard to what was done to him by the authorities. I am of the view that the incident was fabricated to enhance the applicant's claims of persecution.

17. At trial I expressed concern about this finding to Mr Macliver, for the Minister, noting that the RRT had no medical evidence before it to support its conclusion that there should have been scarring or marks on the applicant's back two years after the event and that the applicant had offered to me a plausible explanation as to why scarring would not have been apparent. That explanation is that the lashing employed was intended to humiliate rather than harm. Mr Macliver and the applicant took up my invitation to put in further written submissions on the point. In the respondent's submissions filed on 3 June 2002 the solicitors for the respondent annexed an extract from the transcript of the hearing conducted by the RRT on 7 September 2001. The extract from the transcript is verified by a solicitor's affidavit and I accept that the extract is accurate and relevantly complete. The respondent's solicitors submit that the transcript demonstrates that:

a) the RRT was aware of an earlier examination of the applicant's back by the Department when no marks or scarring were noted;

b) the applicant was invited to comment on the apparent absence of marks or scarring and offered no explanation; and

c) the presiding member inspected the applicant's back and was entitled to conclude, in the absence of any explanation, that the lashing never occurred.

18. The transcript establishes that the applicant informed the RRT in some detail of the manner in which he was allegedly lashed. The applicant volunteered that no marks or scarring remained from the lashing and offered no explanation but invited the presiding member to see for himself. The applicant removed his shirt and the presiding member asked the hearing attendant:

Am I correct in saying that there are no marks or scars on his back?

The hearing attendant responded:

There are some marks up here which are quite fine lines... [the transcript notes a pause] I really don't know what lash marks look like, but there are some fine lines in those areas.

19. The presiding member then thanked the applicant and took the matter no further. In the circumstances I find the discussion of these events at paragraph 58 of the RRT decision and reasons very surprising. The presiding member said this:

It was put to the applicant that the immigration officer during the initial interview had inspected the applicant's back and detected no marks or scars. The applicant was asked how that could be if he had been lashed as claimed. The applicant agreed there were no scars or marks, and he did not know why that was so. The applicant was requested to remove his shirt, and the hearing officer inspected the applicant's back and neck. She reported that there were no apparent scars or marks that would be consistent with being lashed visible on the applicant's back and neck. There were, however, several fine and recent marks on the applicant's neck, and lower back. It was apparent that the applicant had no marks or scars on his back and neck that would be consistent with being lashed.

20. It was an unusual, but understandable, procedure for the presiding member to ask the court attendant to verify his own observation. She was presumably closer to the applicant. It would have been highly irregular for the presiding member to ask the hearing attendant to give an expert opinion on marks that she observed. She was not qualified to give such an opinion. That much is clear from what she said. What is truly remarkable is that the presiding member, in paragraph 58 of the reasons for the RRT decision, attributed to the court attendant an opinion that the court attendant did not give. Further, the presiding member makes the observation that the marks that were observed on the applicant's back were "recent". There is no explanation of how that conclusion was reached.

21. It was open to the RRT to obtain a medical opinion: s.427(1)(d) of the Migration Act. I accept that the RRT was under no obligation to use that power but there is nothing to indicate whether the exercise of that power was even considered. It is apparent from the RRT decision that the finding that there were no marks on the applicant's back was the foundation for the finding that the applicant had not been lashed, which in turn supported the finding that the applicant had been untruthful. In the circumstances, the attribution of views by the RRT to the court attendant in its reasons that do not reflect what the court attendant said on transcript is disturbing. The court attendant made no assessment that the marks were not consistent with lashing. She said nothing about the marks being recent. The presiding member appears to have assumed that the marks on the applicant's back only appeared after the inspection of his back by the departmental officer.

22. The next complaint of the applicant is that the RRT found that because the birthday party incident was fabricated it refused to accept that the applicant was motivated to invest in pornographic films: paragraph 85 of the RRT decision. The applicant asserts that he became involved in pornographic film making as a result of the birthday party incident and the anger and humiliation he felt following his conviction and lashing. The presiding member said this:

I am reluctant to accept the credibility of the applicant's evidence in this matter. The applicant claimed that he did not become involved in the production of pornographic films for financial gain but was motivated by revenge on the clergy for destroying his life. As I was unable to accept that the birthday party incident happened, I am unable to accept that it was the motivation for investing in pornographic films. It is my view that, if the applicant in fact invested in pornographic films at all, it was not for any political reason, anti-regime sentiments or revenge upon the clergy.

23. I expressed concern about this finding to Mr Macliver at trial as it seemed to me illogical to reason that a finding of falsehood in one respect must lead to a finding of falsehood in other respects. I was concerned that the presiding member had allowed his reasoning on this aspect of the applicant's case to be infected by his earlier adverse assessment of the applicant's account of the children's birthday party and his subsequent lashing. I invited and received further written submissions on behalf of the Minister and the applicant on this issue. The respondent's submissions acknowledge that the RRT's reasoning might be regarded as illogical but dispute that any error of law arises. The submissions stress that the RRT went on to consider in more detail the applicant's account of his involvement in pornographic film making and reached a reasonably based conclusion that the applicant's account lacked credibility.

24. I remain concerned that the RRT approached this aspect of the applicant's case with a jaundiced eye, based upon its assessment of the applicant's account of the birthday party incident. In addition, the applicant complains about the RRT's assessment of this aspect of his claim: paragraph 86 of the RRT's reasons. The RRT found that the applicant's account concerning the production of the films was generalised, lacked detail and understanding of the processes and was implausible. The applicant says that he was an investor in the films and had limited knowledge of particular production issues. The applicant further says that he came up with the idea of dressing actors as clergymen in order to show his contempt for the religious authorities. The applicant further says that because of the popularity of a particular film in which actors appeared as clergymen he would be singled out for punishment by the authorities if he returned to Iran. The applicant explained this to the RRT but his account was not accepted. At paragraph 89 of the RRT's reasons the presiding member said:

I am unable to accept that the incidents as claimed by the applicant happened at all. The applicant's evidence was generalised, lacked detail and knowledge of the production of making pornographic films and his claimed motivation was implausible. I am of the view that the whole incident was fabricated to give the applicant the patina of being a refugee.

25. The Minister submits that the RRT gave independent consideration to the question of whether the applicant had been involved in the making of pornographic movies and thereby had a well founded fear of persecution for a Convention reason. I accept that the RRT's reasoning went beyond a simple rejection based upon its earlier rejection of the account of the birthday party incident. However, I remain concerned that the reasoning process adopted by the RRT was coloured by the conclusion reached about the birthday party incident, which was in turn founded upon the dubious conclusion that the applicant had not been lashed as he had claimed.

26. The RRT went on to find that even if the applicant had been involved in pornographic film making as alleged he would simply be subject to a law of general application and that there was no reason to believe that the applicant would be punished more harshly than anyone else for the same offence. It is correct that a simple assertion of involvement in pornographic activities will not support a claim of a well founded fear of persecution, even though a conviction for such activities carries the death penalty in Iran: Moradgholi v MIMA [2000] FCA 13, Alamdar v MIMA [2000] FCA 1244. Available country information indicates in addition that the death penalty would not be routinely applied to such an offence. The RRT found that it is unlikely that anyone would be stoned to death in Iran for a pornographic offence unless they become a public cause celebre for being a Bahai or an Israeli spy, an NKO agent, or some other perceived security or religious risk: paragraph 90 of the RRT reasons. The RRT noted at paragraph 93 of its reasons that Iran is an Islamic state and certain of its laws reflect Islamic morality but added that that did not of itself mean that enforcement of such laws amounts to persecution by reason of political opinion or religion. In my view, that conclusion misses the point. If the applicant is telling the truth about his involvement in pornographic film making then his action in putting clerical figures into a film is a direct challenge to the authority of the Islamic state. It is entirely reasonable to conclude that he would be regarded as a religious risk and singled out for special punishment. It is the assessment of the applicant's credibility by the RRT which is the critical issue. The question is whether that assessment was made bona fide.

27. In NAAG Allsop J, at paragraph 24, considered what was meant by the words "bona fide". His Honour noted that a lack of bona fides constitutes bad faith, which in turn constitutes a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the decision-maker. His Honour noted that such a matter must be clearly identified and proved, and expressed agreement with statements of principle on the subject made by Mansfield J in SAAG v MIMIA [2002] FCA 547 at paragraphs 34-36. In that case, Mansfield J found a lack of good faith in the RRT decision by inference from the decision as a whole, on the basis that the RRT set about its task in order to find evidence to reject the applicant's claims, rather than to objectively assess whether the applicant had a well founded fear of persecution. His Honour made no finding of actual bias.

28. In SBAN v MIMIA [2002] FCA 591 Mansfield J did find actual bias. That was because the RRT's decision on its face disclosed that it had adopted views that were incapable of alteration. That decision may be compared with the decision of von Doussa J in SCAA v MIMIA [2002] FCA 668 in which his Honour rejected an assertion that the RRT had adopted a pre-determined view about the group to which the applicant belonged. His Honour held, at paragraphs 36 and 37, that actual bias requires proof of a closed mind, although it does not have to be the conscious adoption of an irreversible view, and may be established by inference from the decision itself and the surrounding circumstances.

29. I have come to the view in this case that the decision of the RRT discloses pre-judgement of the credibility of the applicant, stemming from the conclusion of the presiding member that the applicant had not been lashed as he claimed. Before examining the applicant's back the presiding member knew that a previous examination by a departmental officer had revealed no marks and that the applicant had volunteered that no marks remained. The presiding member took into account the observation of marks on the applicant's back by the court attendant. The presiding member found that these marks were recent and not consistent with the alleged lashing. Critically, however, the presiding member attributed to the court attendant an assessment of the marks that the court attendant did not make. In all probability, the view attributed to the court attendant was the presiding member's own view. In my view the presiding member expected to see no marks and had already formed the view that the applicant had not been lashed as he claimed. There was a distant possibility that what the court attendant observed was the remnant of the marks of a lashing but the presiding member ignored or discounted that observation, not considering it worthy of further enquiry. I find that the presiding member had formed an unalterable view that the applicant had lied about the lashing. He closed his mind to any contrary view. This amounts to a finding of actual bias.

30. In the circumstances I am bound to conclude that the RRT decision was not a bona fide exercise of the RRT's powers, because the decision was infected by pre-judgement on a fundamental issue of credibility.

31. I have also considered whether the RRT decision discloses a breach of an essential requirement of the Migration Act. At trial Mr Macliver invited me to identify which provisions of the Migration Act had been breached. At that time I referred to s.65, and I suggested that Mr Macliver look at the decision of his Honour Lee J in W133/01A v MIMA [2002] FCA 395. I was in fact intending to refer to W195/01A v MIMA [2002] FCA 396. Both were cases arising under former s.476 of the Migration Act and so they must be treated with some caution. Both of these cases can be easily distinguished from the present case. The further written submissions on behalf of the Minister do not take that issue further other than to maintain that the RRT's reasons do not disclose any reviewable error. I disagree for the following reasons.

32. Section 420 of the Migration Act provides as follows:

(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2) The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case.

33. The section was considered by the High Court in MIMA v Eshetu (1999) 197 CLR 611. The Court divided on another issue but it was held by the whole Court that s.420(1) did not prescribe a procedure to be observed by the RRT in making a decision so as to found a right to review under s.476(1)(a). The whole Court held that the clear language and purpose of s.476(2)(b) (which excluded review on the ground of Wednesbury unreasonableness) could not be avoided by treating s.420 as conferring rights not limited by s.476(2)(b). The following points can be made about that decision. First, s.476 which formerly exhaustively set out the available grounds for judicial review has been repealed. Hence, the question whether s.420 establishes a "procedure" to be observed by the RRT is no longer relevant.

34. Secondly, it was stated by Gaudron and Kirby JJ at page 635 that s.420 is in two parts which describe the general nature of review proceedings. As was pointed out by Gleeson CJ and McHugh J at page 628 the particular procedures to be adopted by the RRT are set out in later provisions. At page 642 Gummow J said that a provision such as s.420(2) does not exclude consideration of the question (on an application for prohibition addressed to the RRT) whether or not there was evidence upon which the Minister attained the state of satisfaction referred to in s.65 of the Migration Act. His Honour expressed approval for the description of s.420 adopted by Lindgren J in Sun Zhan Qui v MIEA (1997) 81 FCR 71. That description was that s.420 contains "general exhortatory provisions, the terms of which do not conform to the common understanding of a `procedure'". At page 667 Callinan J accepted that s.420(2)(b) is a command requiring the RRT to act according to substantial justice and the merits of the case. At page 668 his Honour also accepted that, if it did establish a "procedure", s.420(2)(b) could be taken to lay down a requirement of procedural fairness, although he noted that judicial review would be excluded by reason of s.476(2)(a) of the Migration Act (which excluded review on the ground of a breach of the rules of procedural fairness). Of course, s.476(2)(a) has been repealed.

35. Thirdly, it is apparent from the words of s.420(2)(b) that the legislative command given to the RRT, while general in nature and not establishing any particular procedure to be followed, establishes an over arching principle to guide the RRT in all cases.

36. In my view, the over arching principle thereby established imports the fundamental requirement that the RRT deal with cases individually on their merits and not on the basis of any pre-judgement about the merits of application, nor on the basis of any immutable general rule or policy. In my view, this fundamental requirement is an essential requirement of the Migration Act and a breach of it will vitiate a decision notwithstanding the privative clause. Accordingly, as I have found that the decision of the RRT discloses pre-judgement the applicant is entitled to prerogative relief on the basis of a breach of an essential requirement of the Migration Act, in addition to the principal ground of actual bias establishing a lack of bona fides in the decision.

37. The applicant has not sought any particular prerogative relief. In the circumstances I will simply make a declaration of invalidity.


I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 26 June 2002
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