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MIGRATION - Appeal from a decision of the Refugee Review Tribunal - whether any reviewable error disclosed by the decision of the RRT - whether interpreter adequate.

WADJ v Minister for Immigration [2002] FMCA 118 (20 June 2002)

WADJ v Minister for Immigration [2002] FMCA 118 (20 June 2002)
Last Updated: 3 July 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WADJ v MINISTER FOR IMMIGRATION
[2002] FMCA 118



MIGRATION - Appeal from a decision of the Refugee Review Tribunal - whether any reviewable error disclosed by the decision of the RRT - whether interpreter adequate.



Judiciary Act 1903(Cth) s.39B

Migration Act 1958(Cth) ss 359, 379A, 474

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

R v Coldham: Ex parte Australian Workers' Union (1983) 153 CLR 415

O'Toole v Charles David Pty Ltd (1991) 171 CLR 232

Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168

Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602

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

Walton v Philip Ruddock, The Minister for Immigration & Multicultural Affairs [2001] FCA 1839

Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 16

NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263

NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281

Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438

SBAE v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 479

Turkan v Minister for Immigration & Multicultural Affairs [2002] FCA 397

SAAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 101

Perera and Minister for Immigration & Multicultural Affairs (1999) FCA 507

Soltanyzand v Minister for Immigration & Multicultural Affairs [2001] FCA 1168

Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759

W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788

Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311

Applicant:
WADJ



Respondent:


MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS



File No:


WZ 62 of 2002



Delivered on:


20 June 2002



Delivered at:


Parramatta



Hearing Date:


1 May 2002



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Mr Jenshel



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) That the application be dismissed.

(2) That the applicant pay the respondent's costs pursuant to Rule 21.10 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


WZ62 of 2002

WADJ


Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction and background

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal). The applicant lodged an application for a protection visa on 8 March 2001. It was refused by a delegate of the Minister for Immigration and Multicultural Affairs on 28 March 2001. On 29 March 2001 the applicant applied to the Tribunal for review of the delegate's decision. On 13 December 2001 the Tribunal affirmed the delegate's decision refusing to grant a protection visa to the applicant.

2. The application for review was filed in the Perth Registry of the Federal Court on 28 December 2001. On 10 April 2002 Nicholson J ordered that the proceedings be transferred to this court. At a directions hearing on 29 January 2002 the applicant was ordered to file and serve particulars of grounds on which he relied under section 39B of the Judiciary Act 1903 (C'th) and a written statement setting out reasons why he considered the Tribunal to be wrong by 19 February 2002. No such particulars were filed.

3. The application was heard in Sydney on 1 May 2002 by video-links to the applicant in the Port Hedland Detention Centre, Western Australia and to the legal representative for the respondent and an interpreter in the Arabic language in Perth.

4. At the hearing the applicant told the Court that he had unsuccessfully sought legal representation. A certificate had been issued by the Federal Court under Order 80 of the Federal Court Rules for the applicant to be legally represented. Despite several attempts, the joint registry in Perth had been unable to arrange for a legal practitioner on the Western Australia Pro Bono panel to provide the applicant with legal assistance. However the applicant stated that he had an appointment with a lawyer on 8 May 2002. This meeting had been postponed from 24 April 2002 because of unrest in the detention centre. He would find out on 8 May 2002 whether the lawyer would take his case. In these circumstances I ordered that the matter should proceed, but that should solicitors for the applicant be appointed, they should have until 31 May 2002 to file written submissions or to apply to the Court for a further hearing in order to make oral submissions. No further submissions or other communications on behalf of the applicant have been received by the Court. Accordingly I have taken into account the oral submissions made by the applicant at the hearing as well as the oral and written submissions of the respondent.

5. The applicant was born in Damascus, Syria of parents who had left Palestine in 1948. He was a resident of Syria. He arrived in Australia on 23 August 2000. The grounds specified in the application for review were that the applicant, who was of Palestinian origin, was persecuted in Syria because he was from the Muslim Sunni religion and would be in danger if he returned to Syria as he was under investigation by Syrian intelligence.

6. In essence the claims on which he based his application for a protection visa were that he feared persecution in Syria because of political opinions which he said would be imputed to him, because while attending prayers at a mosque in mid-June 2000 he participated in critical discussions about the then current political regime in Syria and because he failed to act as an informer for the Syrian intelligence organisation (the mukhabarat) after he had undertaken to do so.

7. The Tribunal found that the claims of the applicant to have a well-founded fear of persecution for a reason within the 1951 Convention Relating to the Status of Refugees were not credible. The applicant's description of his participation in a conversation with strangers in a mosque was found implausible, given his knowledge of the attendance of mukhabarat informers at mosque services and his awareness that participation in a conversation critical of the regime had the potential to bring him to the adverse notice of the authorities. Further, based on numerous detailed inconsistencies in the various accounts by the applicant and by his wife as to his alleged detention and as to the preparation and wording of a claimed undertaking by him to act as an informer for the mukhabarat, the Tribunal was not satisfied that the applicant was ever detained as claimed by him or that he ever undertook to act as an informer. Hence, his claims of mistreatment or harassment were rejected.

8. The Tribunal also found that the claimed circumstances of the arrangements by the applicant and his family to depart Syria were implausible, particularly his claim that having found himself in difficulties for allegedly making critical comments about the regime, he then told a complete stranger sitting in a travel agency that he had to leave the country urgently because he was required to act as an informer. The Tribunal rejected his claims that he found it necessary to involve a smuggler in obtaining a visa to visit Indonesia and did not accept that he and his family left Syria illegally. It did not accept that the applicant was of adverse interest to the Syrian mukhabarat or that he and his family were at risk of persecution should they return to Syria. Rather they should quickly be permitted to re-enter the country.

9. The applicant identified a number of areas of complaint about the Tribunal decision. He claimed that there was an error in translation by the interpreter; that he had not fully understood the interpreter at the tribunal hearing; that his state of health and the hardship he and his family were experiencing in the detention centre should have been taken into account by the Tribunal in its assessment of discrepancies in statements by him and by his wife at various times; that his adviser did not inform the Tribunal of a number of his submissions; that he could not return to Syria as he had no documents entitling him to re-entry; and that he would be punished in Syria because of his illegal departure. His main complaint, as indicated in the application for review and at the hearing, concerned the merits of the Tribunal decision.

The law

10. This application was lodged after the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (C'th). It was transferred to the Federal Magistrates Court pursuant to section 31AB of the Federal Court of Australia Act 1976 (C'th). Under section 483A of the Migration Act 1958 (C'th) the Federal Magistrates Court has the same jurisdiction as the Federal Court in relation to a matter arising under the Migration Act. The Federal Court has jurisdiction in relation to matters arising under the Migration Act pursuant to sections 39B and 44 of the Judiciary Act 1903 (C'th) (see sections 475A and 477 of the Migration Act and Item 8(i) of the Migration Legislation Amendment (Judicial Review) Act 2001). Section 39B of the Judiciary Act confers jurisdiction on the Federal Court (and hence by section 483A of the Migration Act on the Federal Magistrates Court) with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

11. However pursuant to section 474(2) of the Migration Act the Tribunal's decision is a `privative clause decision'. Section 474(1) provides that a privative clause decision is final and conclusive and must not be challenged, appealed against, reviewed, quashed or called into question in any Court. It is not subject to prohibition, mandamus, injunction, declaration, or certiorari in any court on any account.

12. The effect of these provisions is complex. Despite the literal breadth of section 474 and its formulation as a clause ousting the jurisdiction of courts, review may nevertheless take place, albeit in limited circumstances, as was acknowledged by the respondent. It was submitted that the scope of review is limited by principles derived from the judgement of Dixon J in R v Hickman; ex parte Fox v Clinton (1945) 70 CLR 598 at 616:

It is, of course, quite impossible for the Parliament to give power to any judicial or other authority which goes beyond the subject matter of the legislative power conferred by the Constitution. ...It is equally impossible for the legislature to impose limits upon the quasi judicial authority of a body which it sets up with the intention that any excess of that authority means invalidity, and yet, at the same time, to deprive this Court of authority to restrain the invalid action of the court or body by prohibition. But where the legislature confers authority subject to limitations, and at the same time enacts [a privative clause] it becomes a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity. In my opinion, the application of these principles [in this case] means that any decision given by a Local Reference Board which upon its face appears to be within power and is in fact a bona fide attempt to act in the course of its authority, shall not be regarded as invalid.

13. His Honour stated three pre-conditions to the valid exercise of decision-making powers to which such a clause applies:

a) the decision-maker is required to have made "a bona fide attempt to exercise its power";

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

c) the decision "is reasonably capable of reference to the power given to" the decision-maker.

14. These three conditions, the "Hickman conditions" or "Hickman grounds of review", have been restated on many occasions in the High Court: R v Coldham: Ex parte Australian Workers' Union (1983) 153 CLR 415; O'Toole v Charles David Pty Ltd (1991) 171 CLR 232; Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168; and Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602. As succinctly summarised by Hill J in Wang v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 477 these and other High Court cases support the propositions that a privative clause will be strictly construed, that such a clause cannot operate to circumscribe the jurisdiction of the High Court under section 75(v) of the Constitution and that resolution of the tension between detailed legislative prescriptions for decision-making and a privative clause involves a question of interpretation.

15. The respondent contended first that the Tribunal's reasons in this case do not demonstrate a reviewable error pursuant to section 39B of the Judiciary Act if unrestricted review under that provision were available. It was further contended that the scope of review is limited by the principles from Hickman and that the correct approach to a privative clause is as described by Dixon J in R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 399 - 400:

"The first step in such a process of interpretation is to apply to [the privative clause] the traditional or established interpretation which makes the protection it purports to afford inapplicable unless there has been an honest attempt to deal with a subject matter confided to the tribunal and to act in pursuance of the powers of the tribunal in relation to something that might reasonably be regarded as falling within its province............A second step in interpreting the whole legislative instrument must be to consider whether particular limitations on power and specific requirements as to the manner in which the tribunal shall be constituted or shall exercise its power are so expressed that they must be taken to mean that observance of the limitations and compliance with the requirements are essential to valid action. For a clearly expressed specific intention of this kind can hardly give way to the general intention indicated by [a privative clause]."

16. It was submitted that in order to impugn a decision covered by a privative clause an applicant must establish that the constitutional authority of Parliament to define the powers of the decision-maker has been exceeded, that the exercise of power was unrelated to the subject matter of the legislation or that the decision made was, on its face, beyond power or was not a bona fide attempt to act in the course of the tribunal's authority and that none of these alternatives was met.

17. The `second step' referred to by Dixon J in Ex parte Proctor raises an issue of validity. It reflects the terminology often associated with the establishment of a `jurisdictional error' on the part of an administrative decision-maker. The respondent submitted that in dealing with the effect of a privative clause the question is not simply whether there is a jurisdictional error in the broad sense but whether, despite the general terms of the clause, compliance with the obligation in question must have been intended to be an essential precondition to the exercise of power. As was indicated by Mason CJ and Brennan J in R v Coldham, a privative clause could not restrict review of provisions which impose `inviolable limitations and restraints'.

14. The operation of section 474 has been the subject of detailed consideration in several recent Federal Court decisions (see for example Walton v Philip Ruddock, The Minister for Immigration & Multicultural Affairs [2001] FCA 1839 (Merkel J), Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 167 (Mansfield J), NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 (Gyles J), NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281 (Tamberlin J) and Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438 (Wilcox J)).

15. Some differences in approach have emerged, in particular as to whether the correct approach is to consider first whether there is an error on the part of the tribunal of the kind which would enliven a court's powers under section 39B of the Judiciary Act and only address the effect of section 474 Migration Act if there is such an error (SBAE v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 479 (Mansfield J)), or whether the correct approach is to consider first whether section 474 applies and if it does to go no further (Turkan v Minister for Immigration & Multicultural Affairs[2002] FCA 397 (Heerey J)). At the time of writing such differences (and determination of the scope for judicial review in light of section 474) await resolution by the Full Bench of the Federal Court. In the meantime, faced with an unrepresented applicant whose review application is based largely on assertions of factual error by the Tribunal and who was not able to articulate grounds for review in the terms required by section 39B of the Judiciary Act or, indeed, in terms of the `Hickman conditions', I propose to follow the broader approach adopted by Mansfield J.

16. Accordingly it is necessary first to identify in what respects the Tribunal's decision indicates some reviewable or potentially reviewable error which may be amenable to an order under section 39B of the Judiciary Act and, if such a potentially reviewable error is revealed, then to consider whether, in light of section 474, the Court has power to grant relief and should do so.

Grounds of review

17. The applicant complained of the unsuitability of the interpreter provided by the Tribunal. He said that the interpreter at the Tribunal hearing was from Yemen and that he could not understand him well. He told the court that he had drawn this to the attention of his migration agent and had also raised his hands in the Tribunal hearing indicating that he could not understand what was said and had stated that he was `too tired for this'.

18. One specific example of an interpreting error was referred to by the applicant. This is in relation to dates in July 2000. The applicant claims that instead of saying 22 July 2000 (the date when the applicant said that he had to submit his first report to the mukhabarat) the interpreter wrongly told the Tribunal member 27 July 2000.

19. This instance was raised with and considered by the Tribunal. After the hearing the Tribunal sent the applicant a letter under section 424A of the Migration Act drawing to his attention certain inconsistencies in his evidence and inviting him to comment upon them. On 26 October 2001 the Tribunal received a detailed response to its letter. While there is not a copy of this response as such in the material before the Court, it is clear from the applicant's description of the written submissions that he provided to his migration agent and from the extensive extract from the response in the reasons for decision of the Tribunal, that this response incorporates the comments of the applicant. It was made after the tapes of the hearing had been provided to the applicant's migration agent. The response drew the Tribunal's attention to the alleged mistake in interpretation regarding the July 2000 dates as set out above. The applicant indicated that he had departed Syria on 21 July 2000 and that his `sayings' were not correctly interpreted to the Tribunal.

20. In the reasons for decision the Tribunal acknowledged that in the response to the section 424A letter the applicant had noted an error by the interpreter in connection with the date given by the applicant. Nowhere in the decision does the Tribunal rely on the applicant saying that he had to submit the alleged report on 27 July 2000 (rather than

22 July 2000).

21. Having considered the Tribunal reasons it is clear that this particular matter was considered. I am satisfied that the incorrect translation was drawn to the attention of the Tribunal and that the correct dates were taken into account in the decision of the Tribunal.

22. As to the wider issue of whether the Tribunal erred in failing to provide an adequate interpreting service, the applicant in effect argues that he could not understand the particular interpreter and so the Tribunal did not give him an effective opportunity to give evidence (see sections 425 and 427(7) of the Migration Act). The Migration Act specifies legislative directions to the Tribunal as to how it should exercise its powers in Divisions 3 and 4 of Part VII of the Act. Of particular relevance in this instance is section 425 which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The issue of the inter-relationship of section 474 (the privative clause provision) and the specific legislative prescriptions such as those in Divisions 3, 4 and 5 of Part VII of the Act is a matter of construction. In the case of a breach of any of those express provisions a question of statutory construction would arise as to reconciliation of that particular provision with section 474. (see Walton v Ruddock, SAAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 101 and NAAX v Minister for Immigration & Multicultural Affairs. The respondent contends that the question would be whether despite the general terms of the privative clause, compliance with the obligation in question must have been intended to be an essential precondition to the exercise of power (see SAAA v Minister for Immigration & Multicultural & Indigenous Affairs).

23. On the broad approach that I have adopted in the face of the present conflicting views of Federal Court judges, it is first necessary to consider whether a breach has been established. The standard of interpretation required in this context has been discussed by the Federal Court in a line of cases, in particular Perera and Minister for Immigration & Multicultural Affairs (1999) FCA 507 in which Kenny J stated that:

"Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the ideal concept as it has been expressed in the other language."

24. The question in this case is whether the applicant established that the use of the particular Arabic interpreter in the Tribunal hearing was such that he was prevented from giving his evidence effectively. The Tribunal reasons for decision indicate that both the applicant and his wife had confirmed to the Tribunal member that they had no difficulty understanding the interpreter. There is no evidence before the court that either the applicant or his migration agent (who was present in the hearing) complained to the Tribunal member about the applicant's alleged inability to understand the interpreter or about the quality of the interpretation except that the applicant told the court that in the Tribunal hearing he threw his hands in the air and said that he did not understand what was said and that he was too tired for this. I am not satisfied that such a complaint, in the context of an assurance to the Tribunal that he had understood the interpreter, brought the matter to the attention of the Tribunal. Nor was there a subsequent complaint to the Tribunal by the applicant or his migration agent as to any inability of the applicant to fully understand the interpreter or about the quality of the interpretation other than in relation to the one point which I have discussed. There was ample opportunity for such matters to be drawn to the attention of the tribunal after the hearing at a time when the applicant had the benefit of professional assistance from his migration agent. No other errors in translation (or areas of difficulties in communication which might have supported the applicant's claim not to understand the interpreter properly) have been identified despite the fact that the tapes of the hearing were made available to the applicant's migration agent after the hearing. In such circumstances the applicant's present assertion that he could not properly understand the interpreter and the one instance of incorrect translation (which relates to the interpreter's understanding of the applicant rather than vice versa) does not establish a breach of the Tribunal's obligations under s 425 or under any other applicable provision of the Migration Act.

25. If the applicant sought to show that the interpreter provided was incompetent in significant respects or that errors in translation or understanding had occurred it was necessary for him to place evidence before the Court capable of persuading it that material errors occurred in the interpretation of his statements or in his understanding of what was said to him and therefore that a miscarriage in the decision-making process had occurred (Soltanyzand v Minister for Immigration & Multicultural Affairs [2001] FCA 1168) He did not do so. In Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 Goldberg J identified a number of departures from the requisite standard of interpretation in a Tribunal decision but found that they were not critical to the presentation of the Applicant's case and did not influence the Tribunal in its reasoning and the findings which it made. In this case the only specific error referred to by the applicant was corrected before the decision was made by the Tribunal and I am not satisfied that it influenced the Tribunal in its reasoning and the findings which it made (also see W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788).

26. Having considered the evidence before me I am not satisfied that the difficulties raised by the applicant in relation to the interpretation at the Tribunal hearing are such as to constitute a failure on the part of the Tribunal to comply with the requirements of section 425 or with any other provision in the Migration Act. Accordingly it is not necessary to determine whether a failure to comply with any particular provision in Part VII of the Migration Act would constitute error on the part of the Tribunal open to review by the court.

27. Nor has it been established that there was a lack of procedural fairness or a denial of natural justice in this case. The applicant was provided with an Arabic interpreter as requested, was asked if he understood the interpreter and replied in the affirmative, was provided with tapes of the hearing and was given an opportunity to make further submissions (which could have raised any concerns) before the decision was made. Such submissions as he made were taken into account in the reasons for decision. In this respect I note that differing views have been expressed by individual judges of the Federal Court as to whether a denial of natural justice would amount to the Tribunal acting in excess of jurisdiction so that the Court could exercise its powers under section 39B of the Judiciary Act notwithstanding the provisions of section 474 (see SAAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 101, Walton v Philip Ruddock, NAAX v Minister for Immigration & Multicultural Affairs, NABE v Minister for Immigration & Multicultural Affairs, Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311 and Boakye - Danquah v Minister for Immigration & Multicultural Affairs. Gyles J in NAAX and Hill J in Ratumaiwai have suggested that section 474 would preclude the Court from making an order for prohibition absolute where there had been a denial of natural justice on the basis that section 474 is inconsistent with the Tribunal having an implied duty to observe procedural fairness going beyond the requirements of the relevant divisions of Part VII of the Act.

28. As to the other grounds for review raised by the applicant in the hearing, I am not satisfied that his state of health at the time of the Tribunal hearing or at any other time was such as to constitute a ground for review of the decision. I note in this respect that the applicant's migration agent drew the applicant's state of health to the attention of the Tribunal in a letter of 30 November 2001 and also drew attention to the hardships of life in the detention centre. Such matters were also drawn to the Tribunal's attention in the response to the section 424A letter. The applicant suggested that these conditions, the effect of detention on his family and his frail health provided some explanation for discrepancies noted by the Tribunal (particularly because of an impact on his ability to concentrate). I am not satisfied that these matters establish grounds for review of the Tribunal decision. It is clear that the medical reports provided to the Tribunal and the applicant's description of his condition were considered and dealt with by the Tribunal. The Tribunal was entitled to reject the applicant's explanation on that basis and it is clear that the Tribunal was not satisfied that these factors provided an explanation for the discrepancies in the various accounts given by the applicant and his wife.

29. There was also a complaint that the applicant's adviser did not pass on to the Tribunal a number of points that the applicant had made in writing. In the hearing the applicant was asked to read from these documents and it was apparent that what was read out corresponded to the applicant's translated response to the section 424A letter from the Tribunal, which is set out at length in the Tribunal's reasons for decision. It is clear from this and from the applicant's description of the submissions that he gave to his migration agent, that the response to the section 424A letter incorporates the comments of the applicant. To this extent the applicant's points were drawn to the Tribunal's attention. Further, even if the applicant sent other documentation to the Tribunal via an adviser which was not passed on, this does not establish a ground for review of the Tribunal decision.

30. The applicant also complained that he could not return to Syria because he had no documents entitling him to re-entry. Again this does not of itself establish an error on the part of the Tribunal. The Tribunal in fact seemed satisfied that the applicant could return. As to his complaint that he would be punished because of an alleged illegal departure from Syria, the Tribunal was not satisfied that he would be punished. However, even if he were to be punished because of an illegal departure this would be a breach of law of general application to all people in Syria and not, without more, such as to amount to persecution. I am not satisfied that the Tribunal's reasons for decision reveal any reviewable error in relation to the findings in this regard.

31. Much of what the applicant had to say in his application for review and in oral submissions amounted to a complaint about the merits of the Tribunal decision. It is not for the Court to review the merits of a Tribunal decision.

32. Having considered the Tribunal's reasons I am satisfied that they do not demonstrate error reviewable pursuant to section 39B of the Judiciary Act. The Tribunal correctly set out and interpreted the law applicable to its task and correctly applied that law to its findings and conclusions. Its reason show that the Tribunal clearly considered on their merits the applicant's claims as to his involvement in particular activities or as to his detention and mistreatment for such activities. The Tribunal reached its decision based upon its findings and conclusions made after considering the applicant's evidence and other material that was available to it.

33. As I have concluded that the Tribunal did not commit a potentially reviewable error and as it has not been established that there was any denial of natural justice or lack of procedural fairness, it is unnecessary to determine whether, in light of section 474, the court has power to grant relief in respect of the grounds relied upon by the applicant. Because of the unsettled state of the law in this area, I note for the sake of completeness that the applicant has not established any of the Hickman grounds for review on the approach suggested by the respondent. The first of these is that the Constitutional authority of the Parliament to define the powers of the decision-maker has been exceeded. That has not been suggested in this matter. The second alternative is that it must be shown that the exercise of power was unrelated to the subject matter of the legislation. Again that has not been suggested in this case. The Tribunal was reviewing a decision by a delegate of the respondent refusing to grant a protection visa to the applicant. It is clear that the Tribunal was reviewing a decision by a delegate of the respondent refusing to grant a protection visa to the applicant. It is clear that the Tribunal was empowered and obliged by the Act to do so. The decision of the delegate was reviewable by the Tribunal under section 411 of the Act and section 414 obliged the Tribunal to review that decision. The third alternative is to establish that the decision made was, on its face, beyond power or that it was not a bona fide attempt to act in the course of the Tribunal's authority. There is nothing in the material before the Court which establishes that the Tribunal's exercise of its function was not a bona fide attempt to act in the course of its authority or that it involved a jurisdictional error or breach of a provision imposing an `inviolable' limit or restraint.

34. Accordingly the application should be dismissed.

35. The applicant should pay the respondent's cost pursuant to Rule 21.10 of the Federal Magistrates Court Rules. Pursuant to Rule 21.15 I certify that it was reasonable for the respondent to employ an advocate to appear in these proceedings.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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