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MIGRATION - Review of decision of the Refugee Review Tribunal affirming a decision of a delegate not to grant a protection visa - whether RRT gave proper or adequate attention to fresh evidence submitted by the applicant - operation of the privative clause - whether any breach of an inviolable limitation on the decision making power apparent - whether s.420(2)(b) of the Migration Act is such an inviolable limitation.

WADK v Minister for Immigration [2002] FMCA 175 (5 September 2002)

WADK v Minister for Immigration [2002] FMCA 175 (5 September 2002)
Last Updated: 24 September 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WADK v MINISTER FOR IMMIGRATION
[2002] FMCA 175



MIGRATION - Review of decision of the Refugee Review Tribunal affirming a decision of a delegate not to grant a protection visa - whether RRT gave proper or adequate attention to fresh evidence submitted by the applicant - operation of the privative clause - whether any breach of an inviolable limitation on the decision making power apparent - whether s.420(2)(b) of the Migration Act is such an inviolable limitation.



Federal Court Rules

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.414, 412, 420, 424, 474

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Minister for Immigration v Eshetu (1999) 197 CLR 611

Minister for Immigration v Wu Shan Liang (1996) 136 ALR 481

NAAV v Minister for Immigration [2002] FCAFC 228

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

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

Strback v Newton (unreported, NSWCA, Samuels JA, 18 July 1989)

WAAK v Minister for Immigration [2002] FMCA 86

Applicant:
WADK



Respondent:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS


File No:

WZ85 of 2002



Delivered on:
5 September 2002



Delivered at:


Sydney, via telephone to Perth



Hearing Date:


8 August 2002



Judgment of:


Driver FM



REPRESENTATION

Counsel for the Applicant:


Mr R L Hooker






Counsel for the Respondent:
Mr A A Jenshel



Solicitors for the Respondent:
Australian Government Solicitor



ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the costs and disbursements of and incidental to the application, fixed at $4,400.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ85 of 2002

WADK


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS


Respondent


REASONS FOR JUDGMENT
Introduction

1. This is an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 20 December 2001. The applicant, who is an Iranian citizen, arrived in Australia on 3 November 2000. On 25 November 2000 the applicant lodged an application for a protection (class XA) visa with the Department of Immigration, Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) ("the Migration Act"). On 9 January 2001 a delegate of the respondent Minister refused to grant a protection visa and on 17 January 2001 the applicant applied for review of that decision. A decision was made on 5 April 2001 by the RRT, differently constituted, and that decision was overturned by the Federal Court on 26 September 2001. The Federal Court remitted the matter to the RRT for rehearing according to law. The decision of the RRT made on 20 December 2001 was made in pursuance of the Court's orders.

2. When the matter was reheard by the RRT the applicant introduced additional evidence in the form of documents and oral evidence from two witnesses. It is the treatment of that additional evidence by the RRT which the applicant complains of in these proceedings.

3. The applicant was represented pro bono by Mr Richard Hooker pursuant to an order made under the Federal Court Rules by the Federal Court prior to transfer of the proceedings to this Court. It is appropriate that this Court should recognise the contribution of members of the legal profession to the efficient and fair administration of justice by appearing on this basis.

Background

4. This matter was heard on the basis of an amended application filed in Court on 8 August 2002. The amended application seeks review of the decision of the RRT on the following grounds:

a) The RRT erred in law and acted in excess of jurisdiction in failing, properly or at all, to ascertain the meaning of documents dated 16 March 2000, 15 February 2001 and 14 March 2001, when, on the applicant's account, the contents of those documents were probative of his claim that he was unwilling to return to the country of his nationality owing to a well-founded fear of being persecuted for a Convention based reason.

b) The RRT erred in law and acted in excess of jurisdiction in, having adverted to the evidence given by two friends of the applicant, which evidence on its face was probative of the applicant's account, failed, properly or at all, to make findings of fact as to the matters disclosed by that evidence and to determine whether such factual findings, in their own right, or together with the totality of material before the RRT, satisfied the RRT that the criteria for a protection visa were satisfied.

c) By reason of either or both of the matters referred to in (a) and (b) above, the RRT ignored relevant material, alternatively made erroneous findings of fact, alternatively reached a mistaken conclusion on the material before it, thereby affecting the RRT's purported exercise of power.

d) Alternatively to ground (c), by reason of either or both of the errors referred to in grounds (a) and (b) above, the RRT failed to act according to substantial justice and the merits of the case before it, thereby breaching an essential requirement of the Migration Act, namely s.420(2)(b).

5. The applicant seeks the following relief:

a) a declaration that the decision of the RRT of 20 December 2001 is invalid and of no effect;

b) a writ of prohibition preventing, alternatively an injunction restraining, the respondent from removing the applicant from Australia, or otherwise affecting his status to his detriment, until his application for a protection visa is heard and determined according to law;

c) a writ of mandamus compelling the respondent to hear and determine his application for a protection visa according to law;

d) costs.

6. In addition, I intimated to Mr Hooker, and he accepted, that if the applicant were successful in the proceedings certiorari may be required to quash the decision of the RRT as a precondition to remitting the matter to the RRT for re-determination according to law.

Consideration and findings

7. The applicant's claims are set out on pages 4 to 6 of the reasons for decision of the RRT (court book pages 116-118). Briefly, the applicant resided in the delightfully named town of Shoosh in Iran. He is a single man aged 28 years and operated a computer training centre in Shoosh. He also worked as a soccer coach. The applicant claims that he allowed local students to prepare election materials at his computer centre in the lead up to parliamentary elections in Iran in February 2000. He claims that following those elections there were disturbances due to dissatisfaction with the local outcome. He claims that there was a riot in which people died and property was destroyed and that some students with whom he was acquainted took refuge in his computer centre. He claims that police, following some of the students, came into the computer centre but left when no one was found. He says, however, that in a later search security officials found anti-government literature left behind by the students that he was not previously aware of. He claims that as a result he was detained and mistreated over 10 days but was subsequently released on bail.

8. The applicant gives as his reason for departing Iran (on his own passport) that he panicked when he received a summons to appear in court on 13 September 2000. In substance, these claims were made by the applicant at his initial arrivals interview and have been maintained since.

9. At the rehearing before the RRT the applicant submitted a document dated 15 February 2001 in Farsi which the applicant described as a warning from the Revolutionary Court. The applicant submitted a further document in Farsi dated 14 March 2001 which purportedly emanates from the Revolutionary Court and sentences the applicant for activity against the regime. The applicant was purportedly sentenced in absentia to 10 years imprisonment. Two other documents in Farsi, each dated 16 March 2000, purportedly show details concerning the alleged closure of the applicant's computer centre. He informed the RRT that a lawyer in Australia on his behalf obtained these documents from his family in Iran.

10. In addition, at the rehearing before the RRT a friend of the applicant gave evidence that a close friend, who was a student at the applicant's computer centre, informed him of the political incidents in the area at the relevant time, that there are still people in hiding from the authorities and that people are searching for the applicant. The friend said that he arrived in Australia about a year and a half ago and that he knew the applicant for about two or three months before the applicant was effectively prevented from further soccer coaching.

11. Another friend of the applicant also gave evidence. He arrived in Australia in October 2001. He said that he knew the applicant as a colleague in the area of computing and technical assistance. He gave evidence that his father contacted him and stated that if the applicant returns to Iran the applicant will be executed. He said that his father has many contacts in the Intelligence Service who passed information to him following events in the applicant's region.

12. The consideration of the evidence is dealt with by the RRT at pages 6 to 11 of the reasons for its decision (court book, pages 118-123). The RRT accepted that the applicant operated a computer centre and that some users of the centre attended demonstrations in conjunction with elections held in February 2000. It also accepted that there were some allegations of vote rigging after those elections and that rioting broke out in some areas. There was no country information available to the RRT to establish that any disturbances occurred in Shoosh. The RRT accepted that a demonstration occurred in the applicant's home area but concluded that he had exaggerated the size and outcome of that demonstration.

13. The RRT was not satisfied that any search conducted for students by the authorities following the demonstration disclosed a Convention nexus. In essence, the RRT concluded that any such search was simply a criminal investigation.

14. The RRT found that the applicant's claims about his arrest and mistreatment and summonsing to court lacked credibility. The RRT found the applicant's account implausible. The RRT found that while the applicant's computer centre had been closed down prior to his departure from Iran the RRT did not accept that the closure related to any Convention reason. Similarly, the RRT did not accept that the applicant was precluded from soccer coaching for any Convention reason. In addition, the RRT found that the fact that the applicant left Iran legally on his own passport indicated that he was not of interest to the Iranian authorities.

15. The RRT dealt with the issue of the additional documents presented by the applicant in the following terms, on page 8 of its reasons for decision (court book page 120):

In relation to documentation submitted by the applicant shortly before the hearing the Tribunal notes that those are photocopied documents without any official translation. Those documents concerning the closure of the applicant's computer centre do not, on the applicant's hesitant reading of them at the hearing and interpreted at the time on his behalf, disclose a Convention reason for his alleged difficulties. Other documents are vague on some key matters such as the precise nature of any charges. The timing of their submission - between four and 17 months after their issue - raises further suspicion about their authenticity.

In relation to the applicant's claim that he was prompted to flee Iran after the issue of a court summons in September 2000 - six months after the elections - and his allied claims that he was issued with a warning by the Revolutionary Court before later being sentenced in absentia, to a decade of imprisonment, the Tribunal finds, for the reasons alluded to above, that none of those documents is genuine or that the applicant is wanted for any Convention reason.

16. In discussion between myself and Mr Jenshel, for the Minister, about the meaning of the second quoted paragraph I proposed and Mr Jenshel accepted that the second paragraph appeared to contain at least a typographical error and to suffer from some grammatical obscurity. It is clear that the RRT found that at least some of the documents it was referring to were not genuine and that the applicant is not wanted by the Iranian authorities for any Convention reason. It is not clear whether the RRT found that all of the documents presented by the applicant were not genuine. After reading and re-reading these passages several times I interpret them to mean that the RRT found only that the documents relating to the court proceedings were not genuine. These were the documents dated 15 February 2001 and 14 March 2001. I do not believe that the RRT made any finding as to the genuineness of the two documents dated 16 March 2001 concerning the closure of the applicant's computer centre. The RRT appears to have found simply that those documents did not assist the applicant in establishing persecution.

17. The oral evidence presented by the applicant's friends is dealt with by the RRT on page 10 of its reasons (court book page 122). The presiding member said:

The Tribunal has also considered evidence furnished by the applicant's two witnesses at the hearing. The friend who gave evidence has no independent knowledge of the authorities allegedly searching for the applicant. For reasons outlined above the Tribunal does not accept that the applicant is of any official interest for any Convention reason. The evidence of the witnesses as to the applicant's exclusion from soccer coaching was vague and the Tribunal is not satisfied that such a decision discloses a Convention ground in the circumstances of the present case. The second witness also has no independent knowledge of the applicant's alleged problems in Iran. His evidence was vague and unconvincing and the Tribunal does not accept it is other than an endeavour to bolster false claims made by the applicant.

18. Mr Hooker submits that the treatment by the RRT of the documentation and oral evidence presented establishes that the RRT failed to conduct a proper review pursuant to s.414 of the Migration Act. That section relevantly provides:

(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.

19. Alternatively, Mr Hooker submits that the treatment of the documents and the oral evidence discloses a breach of s.420(2)(b) which provides:

(2) The Tribunal, in reviewing a decision:

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

20. Mr Hooker submits that both provisions impose mandatory statutory obligations upon the RRT, the breach of which is a breach of an essential requirement of the Migration Act. Mr Hooker submits that the RRT failed to make clear findings on this evidence and made simple vague comments about it. He submits that the RRT made no proper assessment of this evidence. He submits that the vague and superficial treatment of the evidence by the RRT leads to a conclusion that no proper review has been conducted by the RRT and that in conducting the review the RRT failed to act according to substantial justice and the merits of the case.

21. In response, in respect of ground (a) of the review application, Mr Jenshel submits that the treatment of the additional evidence by the RRT was neither vague nor superficial. He submits that the RRT was entitled to rely on the interpretation of the documents offered by the applicant at the hearing and was also entitled to rely on the appearance, content and circumstances of presentation in connection with its reasoning process. He submits that the RRT was clearly suspicious about the authenticity of the documents and did not regard them as particularly supportive of the applicant's claims. He submits that no further comment, effort or findings were required on the part of the RRT.

22. In relation to ground (b) Mr Jenshel submits that there is no rule that the decisions of an administrative decision maker are required to be long or complex or that they deal with every item of evidence. The way in which the RRT decides the case will determine the extent to which, if any, the RRT must deal with the evidence: Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-6; Strback v Newton (unreported, NSWCA, Samuels JA, 18 July 1989). Mr Jenshel further submits that it is clear that the RRT was prepared to reject the applicant's claims on other grounds which the evidence of the witnesses could not displace.

23. In relation to review ground (c) Mr Jenshel submits that the errors identified by an applicant must be such as to attract relief under s.39B of the Judiciary Act 1903 (Cth). The inquiry required of the Court is whether the approach adopted by the RRT was such as to render its decision invalid. This question requires the Court to identify the scope within which the RRT is empowered to operate pursuant to the terms of the Migration Act, including s.474. Mr Jenshel submits that there was no breach of any essential requirement of the Migration Act, and that even if a procedural requirement of the Migration Act had been breached, such a breach would be immunised from review by the privative clause.

24. Mr Jenshel submits that s.420(2)(b) does not impose upon the RRT any essential requirement or constraint, the breach of which will permit the decision to be set aside. In the first place, he says that s.420 must be read in conjunction with s.424. In the second place, he says that full effect should be given to the decision of the High Court in Minister for Immigration v Eshetu (1999) 197 CLR 611. Mr Jenshel submits that the decision of the High Court in that case makes clear that s.420 does not create a substantive right.

25. Since this matter was heard by me the Full Federal Court has handed down its judgment in five cases under the title of NAAV v Minister for Immigration [2002] FCAFC 228. That decision is binding upon me. All the judges in that case found that the privative clause in s.474 of the Migration Act is valid and that the effect of the clause is to protect from judicial review decisions of the RRT or the Migration Review Tribunal which might otherwise be found to be invalid by reason of jurisdictional error. All of the judges also found that some decisions evidencing jurisdictional error would not be protected from review by the privative clause, but they differed as to the extent to which the privative clause would apply.

26. At paragraph 535 on page 78 of his judgment, his Honour French J set out seven grounds of review that, in his view, remain available notwithstanding the privative clause. These are:

(1) the decision exceeds the constitutional limits upon legislative power imposed by the Commonwealth Constitution.

(2) The decision was not made in good faith.

(3) The decision was not reasonably capable of reference to the power under which it was made.

(4) The decision was not made by reference to the subject matter, scope and objects of the Migration Act.

(5) The decision was made in breach of an express statutory limit or condition upon a power which, as a matter of construction, notwithstanding s.474, must be observed for the effective exercise of the power.

(6) The decision is made in breach of a limit or condition on a power which, notwithstanding s.474, is implied from the statute or imposed by the common law and which must be observed for the effective exercise of the power.

(7) The decision was made in breach of the requirements of procedural fairness when the circumstances are such that, notwithstanding s.474, procedural fairness is a necessary condition for the valid making of the decision.

27. Grounds 1-4 find support from all the justices in NAAV and are clearly founded upon the so called Hickman principle: R v Hickman; ex parte Fox v Clinton (1945) 70 CLR 598. Ground 5 finds majority support in the judgments of their Honours Black CJ and Wilcox J in the matters of Turcan and Wang, although the extent of operation of the ground must be read in the light in the judgment of Black CJ in order to find a majority operating principle. Ground 6 appears not to have been specifically considered by the rest of the Court, although it should be treated with some caution, given the observation of Black CJ at paragraph 16. Ground 7 was rejected by the majority of the Court in NAAV.

28. It follows that the first five grounds set out by French J are open to a migration applicant (although the extent of the fifth ground needs to be considered in the light of the judgment of Black CJ) and it is arguable that ground 6 is also available. Ground 7 is not available on the basis of the majority judgment in NAAV.

29. In this matter I adopt the same approach to the interpretation of the privative clause that was adopted by the Full Federal Court in NAAV.

30. In this case the applicant has asserted jurisdictional error in the terms identified by the High Court in Craig v South Australia (1995) 184 CLR 163. In NAAV, in the matter of Turcan, at paragraph 30, Black CJ considered the application of that case in the light of the privative clause. He said:

I take s.474(1) to express the Parliament's intention that the Minister's satisfaction is to be taken to exist even if the Minister (or the delegate) has identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material.

31. His Honour went on to say that where, however, the decision under review was subject to an inviolable pre condition of the achievement of a degree of satisfaction and where a legal error is committed at arriving at that state of satisfaction, the decision will not be protected by the privative clause.

32. In WAAK v Minister for Immigration [2002] FMCA 86 I found that s.420(2)(b) is a legislative command establishing an over arching principle, while not establishing a procedure to be followed by the RRT. I found that the over arching principle thereby established imports a fundamental requirement that the RRT deal with cases individually on their merits. I found that this is an essential requirement of the Migration Act and that a breach of it will vitiate a decision notwithstanding the privative clause. I found that the decision of the High Court in Eshetu did not provide an insurmountable obstacle to that conclusion, bearing in mind that the decision of the High Court related to the issue of whether s.420 provided a foundation for judicial review of an RRT decision on the basis of an alleged breach of a procedure under now repealed provisions of the Migration Act. I am not dissuaded from that view by the submissions put on behalf of the Minister in this case. My decision in WAAK is subject to appeal but, at this stage, it has not been found to be wrong.

33. In my view, the approach that I took in WAAK is consistent with the majority judgments in NAAV. Black CJ was part of the majority in each of the five cases dealt with in NAAV. His Honour adopted the approach taken by Dixon J in R v Murray; ex parte Proctor (1949) 77 CLR 387 at pp.399-400 to the interpretation of a privative clause. In addition to the operation of the provisos forming the Hickman principle, that approach requires the Court to construe the privative clause in order to resolve any apparent inconsistency between the privative clause and other provisions in the Migration Act. The grounds of review derived from 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, the jurisdictional error identified must involve a breach of an essential precondition to the exercise of power contained in the relevant legislation.

34. Black CJ referred to such an essential statutory precondition or prerequisite as an "inviolable limitation" on the decision making power. At paragraph 15 of his judgment his Honour said:

It is difficult to formulate a precise principle for determining exactly when a provision in an Act containing a Hickman clause may be said to be outside the operation of such a clause and to have the character of an "inviolable limitation". Constitutional considerations aside, the cases where "inviolable limitations" have been identified by the High Court can be seen, however, as cases in which, if the legislation were interpreted in a particular way, essential structural elements created by the legislation would be violated, or else some other quite fundamental aspect of the legislation would change its character in a way and to an extent that the Parliament could not be taken to have intended.

35. In my view s.420(2)(b) is just such a provision. It is not simply a motherhood statement. It is unthinkable that Parliament would have intended that the RRT could operate free from the constraints of judicial review in the event that it breached the requirements of the provision.

36. Section 420(2)(b) requires that the RRT, in reviewing a decision, must act according to substantial justice and the merits of the case. Of course, the balance of the section places other requirements upon the RRT (in particular to act quickly, informally and economically) which creates a tension between apparently competing obligations. In addition, the RRT is not bound by technicalities, legal forms or rules of evidence. I do not see any necessary conflict between paragraphs (a) and (b) of subsection (2). There is a tension between subsection (1) and paragraph (2)(b) but it is material, in my view, that subsection (1) sets out an overall objective whereas paragraph (2)(b) imposes a more specific obligation which should, in my view, take priority.

37. I accept that s.420 must be read in conjunction with s.474. In particular, the obligations imposed by s.420(2)(b) could not legislatively import the full range of grounds of review of administrative decisions so as to circumvent the operation of the privative clause in s.474. This is an additional element of tension derived from the legislation. In my view, that tension is to be resolved in the following way. Consistently with the approach taken by the Full Federal Court in NAAV the privative clause operates so as to immunise from review a decision of the RRT on grounds of review available under the general law, subject to the grounds preserved by the Hickman principle. Properly interpreted, the Hickman principle permits review, notwithstanding the privative clause, where there is a breach of an essential requirement in the Migration Act. Section 420(2)(b) is such an essential requirement. The effect is to leave open certain grounds of review by force s.420(2)(b), which may not otherwise be available by reason of the privative clause.

38. In my view, the grounds of review remaining open pursuant to s.420(2)(b) are:

a) fraud;

b) bad faith;

c) bias, whether that bias be actual or reasonably apprehended;

d) acting under dictation;

e) applying a rule or policy without regard to the merits of the particular case;

f) no evidence;

g) Wednesbury unreasonableness;

h) abuse of power including the exercise of power for a purpose other than a purpose for which the power is conferred.

39. In my view, each of those grounds of review is related directly to a failure to proceed in accordance with substantial justice and the merits of the case. Other grounds of review available under the general law, namely a breach of the rules of procedural fairness (other than bias), a breach of procedure required by law to be observed, lack of jurisdiction, issues of relevant and irrelevant considerations and miscellaneous errors of law cannot be related so directly to s.420(2)(b). In addition, it is clear from the majority judgments in NAAV that common law procedural fairness grounds of review are not otherwise available in the face of the privative clause. Other grounds of review may potentially be related to other more specific provisions of the Migration Act, including the code of procedure to be followed by the RRT under the balance of Part 7 of the Migration Act. However, consistently with the view that I have taken of the privative clause, it would not be any breach of a procedural requirement that could support judicial review of an RRT decision. The procedural requirement would have to be an essential pre-requisite to the exercise of power by the RRT, of the kind found by the Full Federal Court in NAAV, in relation to the case of Wang.

40. Unfortunately for the applicant, none of the grounds of review I set out in paragraph 38 above can be sustained in these proceedings. Neither is any other breach of an essential precondition for the exercise of power by the RRT apparent. The reasons for the decision of the RRT in relation to the new evidence presented by the applicant are brief and somewhat obscure and inelegant in their expression but were reasonably based on a coherent assessment of the evidence by the RRT. The RRT's obligation to provide reasons is set out in s.430 of the Migration Act. No breach of that section was alleged and I can find none. The RRT was under no obligation to obtain an independent translation of the documents put forward by the applicant although it could have done so if it had wished to: s.424 Migration Act. It was entitled to rely upon the translation offered by the applicant at the time of the hearing. The RRT heard the translation of the documents and I have no translation available to me. I cannot say that the interpretation put on the documents by the RRT was wrong. The reasons advanced by the RRT for its rejection of the documents are sufficient to establish a properly reasoned basis for that rejection. I cannot say that it was not open to the RRT to find that the documents relating to the Iranian court proceedings lacked the specificity in relation to the alleged criminal charges to support a finding of authenticity. Neither can I say that it was not open to the RRT to find that the translation of the documents relating to the closure of the applicant's business premises did not support a finding of a Convention reason for that closure.

41. Likewise, the RRT was entitled to draw conclusions about the credibility of the evidence put forward by the friends of the applicant, as well as the utility of that evidence in support of the applicant's claims. On the basis of the description of that evidence in the reasons for the RRT decision I am satisfied that the adverse conclusions drawn by the presiding member were reasonably open to him.

42. The ground of review based upon the alleged breach of the obligation to review the decision pursuant to s.414 of the Migration Act also fails. It is not for me to review the merits of the RRT decision. The High Court has held that a court reviewing a decision of an administrative decision maker should be cautious not to descend into merits review under the guise of too closely examining the reasons for decision of the decision maker in an attempt to discover error: Minister for Immigration v Wu Shan Liang (1996) 136 ALR 481. The reasons may be imperfect. A different decision maker may well have reached a different decision. That is the nature of merits review. It is, however, sufficiently clear from the reasons for the RRT decision that the RRT addressed itself to the issues raised by the applicant and took into account the additional documentary and oral evidence presented by him. The presiding member, in his reasons for decision, gave a brief and, in relation to the documents, somewhat ambiguous explanation for the rejection of that evidence but I reject the applicant's contention that the deficiencies in the reasons for decision of the RRT lead to a conclusion that there was a constructive failure to exercise the jurisdiction conferred by s.414 to review the decision.

43. The manner of conducting a review by the RRT is codified in the Migration Act in Part 7. If the code of procedure is followed and if the RRT directs itself adequately to the relevant criteria for determination of the question whether a protection visa should be granted, then no basis for judicial review could be established. If part of the code of procedure were breached or if the RRT failed to address itself adequately to the criteria for the grant of a visa then consideration would have to be given to the question whether any essential requirement of the Migration Act had been breached by reason of that failure. In my view, it is too broad a proposition to state that a deficiency in the reasons advanced by the RRT for its decision establishes a constructive failure to provide review of the decision before the RRT, resulting in a breach of s.414. In my view, an applicant must go further and establish a breach of some more specific provision of the Migration Act in order to establish reviewable jurisdictional error based upon a breach of an essential precondition to the exercise of the review jurisdiction by the RRT.

44. I have considered this issue in more detail in the matter of NAIN v Minister for Immigration [2002] FMCA 177.

45. NAAV v Minister for Immigration establishes that a legal error in the attainment of an essential requirement of satisfaction as a precondition to the cancellation of a visa is a reviewable error. In NAIN I found that so may be a legal error in the attainment of the requirement of satisfaction as a precondition to the grant or refusal of a visa. NAAV also establishes that a breach of an essential procedural requirement in the conduct of review by the RRT or MRT is likewise reviewable. I have found that so is a breach of s.420(2)(b) in the conduct of a review. In this case the applicant has been unable to establish such a breach.

46. As to costs, the Minister has been wholly successful and is entitled to an order for costs. In accordance with my general practice in migration cases I will fix the amount of costs, in this instance in the sum of $4,400.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 5 September 2002
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