Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

1 This is an appeal from a decision of Beaumont J (the primary judge) made on 11 April 2002. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 11 October 2001. By that decision, the Tribunal affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister), not to grant the appellant a Protection (Class XA) Visa.

NACQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002]

NACQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 355 (15 November 2002)
Last Updated: 14 January 2003


FEDERAL COURT OF AUSTRALIA
NACQ v Minister for Immigration & Multicultural

& Indigenous Affairs [2002] FCAFC 355



APPLICANT NACQ OF 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 367 OF 2002

DRUMMOND, NORTH & DOWSETT JJ

15 NOVEMBER 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 367 OF 2002





ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:
APPLICANT NACQ OF 2001

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT


JUDGE:
DRUMMOND, NORTH & DOWSETT JJ


DATE OF ORDER:
15 NOVEMBER 2002


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of and incidental to the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 367 OF 2002





ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA


BETWEEN:
APPLICANT NACQ OF 2001

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT




JUDGE:
DRUMMOND, NORTH & DOWSETT JJ


DATE:
15 NOVEMBER 2002


PLACE:
SYDNEY





REASONS FOR JUDGMENT
THE COURT:

1 This is an appeal from a decision of Beaumont J (the primary judge) made on 11 April 2002. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 11 October 2001. By that decision, the Tribunal affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister), not to grant the appellant a Protection (Class XA) Visa.

BACKGROUND

2 The appellant is a citizen of Palestine who was born on 9 January 1977. Until arriving in Australia, he lived in the West Bank city of Janin. From 1997 to 2000, the appellant worked as a wholesaler of fruit and vegetables in Janin.

3 Before the delegate and the Tribunal, the appellant claimed that he feared persecution from Israeli spies if he was forced to return to Palestine. The circumstances leading up to his departure from Palestine were set out in a written statement attached to his application for a protection visa. In summary, the circumstances were as follows.

4 In April 2000, the appellant was involved in a violent incident with Mr Sati Al-Sharqawi, who beat the appellant after the appellant refused to become an informer for the Israeli intelligence. The appellant's statement then recorded the following:

"I went back home and some marks of a fight were still apparent on my body. My family insisted on knowing what happened. When I told them, my father said words to the effect that:
`Sati did this because your brother Ahmed was involved in arresting Sati's group of Israeli agents and he interrogated them. They were: Salim Abu Fahd, Mehdi Al-Darbi and Tayseer Jaradat, who was known as the joker. They confessed that it was Sati who heads the group. Sati became wanted by Palestinians. He fled from Genin to live in Israel and his house was burnt by angry Palestinians.' I then realised that the real reason behind my problem was that I and all members of my family had always supported the PLO and later the Palestinian Authority. My brother was one of the leaders of a group of National Committee which was established during the first uprising (INTIFADA) of the Palestinians against Israel. I was also an out spoken [sic] person on the rights of our people to have their own independent state and that there is no room among the Palestinian people for traitors. Those persons should be arrested, taken to court and punished."

[emphasis added]

5 In June 2000, the appellant again met with Mr Al-Sharqawi. However, this time, the appellant beat Mr Al-Sharqawi.

6 In July 2000, the appellant's car was burned outside his house. Graffiti was inscribed on the car "Today is your car and tomorrow is you". The incident was reported to the Palestinian police. The Palestinian police told the appellant that, because Mr Sharqawi did not live in Janin, he was under the Israeli security and could not be arrested by them. They told the appellant that the Palestinian Authority wanted Mr Sharqawi and that he should advise the police if he saw Mr Sharqawi in Janin.

7 Later in July 2000, the appellant's house was fired upon by several shots. The Palestinian police were called, who concluded that the bullets found were those used by the Israeli army.

8 In August 2000, the appellant applied for a visa to visit Australia. He claimed that this was "in anticipation for future problems and as a precautionary measure".

9 In September 2000, the appellant was fired upon from a car as it passed him. Shortly afterwards, the appellant left Janin.

10 The appellant arrived in Australia on 23 October 2000 on a tourist visa, which was valid until 11 March 2001.

11 On 27 November 2000, the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (the Department), as it was then. His application was refused on 12 March 2001. On 22 March 2001, the appellant applied for a review of the delegate's decision by the Tribunal.

12 A written submission to the Tribunal dated 27 July 2001 made by the appellant's then migration agent, contended:

"It is respectfully submitted that ... [the appellant's] fear can be characterised as arising for the Convention reasons of `political opinion' and `membership of a particular social group'. In relation to the former, ... [the appellant] claimed (in his statement which accompanied his primary application) that his brother (...) was involved in the PLO through his membership of the Social Party, a Palestinian political organisation. This family link to politics lends itself to a political opinion being imputed to ... [the appellant] by the group he fears will harm him. However, it is also submitted that ... [the appellant's] support for the PLO amplifies this family link. For example, in his statement ... [the appellant] claimed:
`... the real reason behind my problem was that I and all members of my family had always supported the PLO and later the Palestinian Authority. My brother was one of the leaders of a group of National Committee which was established during the first uprising (INTIFADA) of the Palestinians against Israel. I was also an outspoken person on the rights of our people to have their own independent state and that there is no room among the Palestinian people for traitors. Those persons should be arrested, taken to court and punished.'

This statement, although brief, discloses a clear political view held by ... [the appellant]. It also discloses ... [the appellant's] membership of a particular social group, one constituted by his membership of a family closely aligned to the PLO, through the activities in particular of ... [the appellant's] brother, .... It is also submitted that ... [the appellant] was intentionally and deliberately targeted for recruitment (initially) and then retribution (subsequently) by Mr Sati [Sharqawi] because of the family's tie to the PLO."

[emphasis added]

13 The appellant did not appear at a hearing offered by the Tribunal. Before Beaumont J, the appellant's counsel explained the appellant's failure to appear before the Tribunal was the result of a misunderstanding between the appellant and his solicitor. However, this fact was not relied upon as a ground of review at first instance.

14 On 11 October 2001, the Tribunal determined to affirm the decision of the delegate to refuse to grant a protection visa to the appellant.

THE TRIBUNAL'S DECISION

15 The Tribunal set out the background of the appellant's application, and the statutory provisions which govern it. It then discussed some of the legal principles relevant to its consideration of the case. In this discussion, the Tribunal made several references which bear on the issues argued on the appeal.

16 Having referred to the definition of a refugee in Article 1A(2) of the 1951 Convention Relating to the Status of Refugees (the Refugees Convention) the Tribunal then said:

"... 91S of the [Migration] Act now qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person."
17 Section 91S of the Migration Act 1958 (Cth) (the Act) concerns the Convention ground of persecution for reason of a particular social group. It provides as follows:

"For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person's family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and

(b) disregard any fear of persecution, or any persecution, that:

(i) the first person has ever experienced; or

(ii) any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed."

18 The Tribunal then addressed what it called the four key elements of the Convention definition. The third element was the necessary nexus between then harm feared and a Convention ground. On this subject the Tribunal said:

"Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase `for reasons of' serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act."
19 The Tribunal then referred to the claims and evidence relied upon by the appellant. The written statement made by the appellant was set out in full. Then, under the separate heading "Written submissions to the Tribunal", there was a reference to the fact that the appellant's advisers had filed written submissions of fact and law on 27 July 2001. Part of these submissions is extracted in par 12 of these reasons.

20 The Tribunal then set out its findings and reasons. It commenced by examining the appellant's credibility and concluded:

"The Tribunal accepts as plausible the applicant's claims that he had a number of altercations with an individual called Sati. The applicant stated that the reason for these altercations was because the applicant's brother [working for the PNA] had been involved in arresting Sati's colleagues.
In light of the applicant's statements, the Tribunal cannot be satisfied that his claims are Convention related."

21 In elaboration of this conclusion, and under the heading "CLAIMS NOT CONVENTION RELATED" the Tribunal said:

"An applicant for refugee status who has established a fear of persecution must also show that the persecution which he or she fears is for one of the reasons enumerated in Art 1A(2) of the Refugees Convention (MIEA v Guo & Anor (1997) 144 ALR 567 at 575). This means that there will be persons fearing persecution who will not be able to gain asylum as refugees (Applicant A & Anor v MIEA & Anor (1997) 142 ALR 331 at 346, per Dawson J).
As noted by Hill J, in Prahastono v MIMA (unreported, Federal Court of Australia, 8 July 1997, at 10-11)

`There can ... be no doubt that, in resolving the question whether a person is entitled to refugee status, it will be relevant to consider the motivation of the persecutor ... This is because the applicant for refugee status must show that the acts claimed to constitute persecution were carried out for a Convention reason'

The applicant made no claim of fearing persecution for reasons of race, religion, nationality, or membership of a particular social group. The applicant made vague reference to his family's support for the PLO. He stated that he and his family had `always supported the PLO and later the Palestinian Authority'. However, it is clear from the applicant's own statement that the reason for the altercations between the applicant and this person [Sati] was for reasons other than his support for the PLO [Palestine Liberation Organisation] or the PNA [Palestine National Authority]. The applicant stated in writing to the Department of Immigration:

`When I told them [my family about the altercation], my father said words to the effect that: `Sati did this because your brother ... was involved in arresting Sati's group of Israeli agents and he interrogated them'

Although the Tribunal accepts the applicant's claim that Sati may be seeking to harm the applicant, the Tribunal cannot be satisfied that this harm is directed at the applicant for one of the five Convention reasons.

It is clear from the applicant's evidence that the harm he fears is aimed at him as an individual and not for a Convention reason. Sati is seeking to harm the applicant because he is seeking revenge or retribution against the applicant's brother for arresting his friends.

As noted by McHugh J in Applicant A & Anor v MIEA & Anor (Ibid, at 354):

`Discrimination - even discrimination amounting to persecution - that is aimed at a person as an individual and not for a Convention reason is not within the Convention definition of refugee, no matter how terrible its impact on that person happens to be'

`The Convention was not designed to provide havens for individual persecutions'

The Tribunal also notes the comments of Brennan CJ in Applicant A & Anor v MIEA & Anor (Ibid, at 334) who said:

The persecution must be `for reasons of' one of [the prescribed] categories. This qualification excludes indiscriminate persecution which is the product either of inhuman cruelty or of unreasoned antipathy by the persecutor towards the victim or victims of persecution. Persecution of that kind is a general, non-discriminatory denial of fundamental rights and freedoms (Tribunal emphasis).

The Tribunal is satisfied that in this particular case, the applicant is being targeted by an individual, Sati, out of unreasoned antipathy. Sati clearly has a vendetta against the applicant as an individual. The Tribunal is satisfied that the applicant's fear of persecution is not Convention related. The applicant does therefore not have a well-founded fear of being persecuted for a Convention reason and is not a Convention Refugee." [emphasis added]

THE PRIMARY JUDGE'S DECISION

22 The application for judicial review before the primary judge was filed in the Federal Court on 4 December 2001. Consequently, the application is subject to the privative clause regime contained in Part 8 of the Act, which came into effect on 2 October 2001. Section 474 of the Act states:

"(1) A privative clause decision:
(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account."

23 Section 475A provides that the Federal Court has jurisdiction under s39B Judiciary Act 1903 (Cth) in respect of privative clause decisions made by the Tribunal under Part 7 of the Act.

24 The effect of the privative clause in s 474 of the Act on applications for review of Tribunal decisions was recently considered by a five member bench of the Full Federal Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. The Full Court confirmed that the privative clause is to be interpreted consistently with the High Court's treatment of similar clauses in other legislation, beginning with R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 (Hickman).

25 The primary judge commenced by discussing the grounds of the application for review of the Tribunal's decision without considering the application of the privative clause contained in s 474 of the Act. The relevant grounds of review were:

"a. ...
b. The Tribunal failed to address a substantial claim before it, being whether the applicant had a well-founded fear of persecution for reason of membership of a particular social group, being his family.

c. The Tribunal failed to take into account a relevant consideration, being the claim that the applicant feared persecution for reason of membership of a particular social group, being his family.

d. ..."

26 The primary judge's reasoning is set out in full below:

"THE APPLICANT'S CLAIM FOR JUDICIAL REVIEW, ASSUMING FOR THE PURPOSE OF THE ARGUMENT, THAT S 474 OF THE ACT HAS NO APPLICATION HERE
20. In elaboration of grounds (b) and (c) above, counsel for the applicant points to the statement in the Tribunal's reasons, cited above, that the applicant had made no claim based on membership of a social group. It is submitted that the applicant had, in fact, made such a claim and that the Tribunal's refusal to entertain that claim was an error amenable to judicial review. Reliance was placed upon the decision of the Full Court (Lee, Carr and Finkelstein JJ) in W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 379 where, the applicant's credibility having been questioned, and where there were several accounts of the material events, followed by the Tribunal's refusal to hear `evidence', which refusal was held to amount to an error of law which should be judicially reviewed.

CONCLUSION ON THE APPLICANT'S CLAIM FOR JUDICIAL REVIEW, ASSUMING S 474 OF THE ACT HAS NO APPLICATION HERE

21. I cannot accept the applicant's argument. In my opinion, the W375/01A Case should be distinguished for present purposes. The position there was, as described by their Honours at [25] and [26] as follows:

`Two points can be made about what the appellant said at the first interview. First, none of it appears in the summary of the interview. Perhaps this is not surprising. The notes do not purport to be more than a summary. Second, the similarity between what the appellant said in the initial interview and what he said in his supplementary statement is sufficiently close to show that if the Tribunal had heard the recording of that interview it could not have concluded that the supplementary statement was a `fabrication' for the reason it gave.

The Tribunal was correct to point out that the appellant had not relied upon his witnessing of official corruption as the `main reason' for leaving Iran. But that is hardly a relevant point. If the appellant had two reasons for leaving Iran, one a Convention reason and the other not, the appellant's assertion that one of those reasons was his main reason for leaving Iran does not lead to the conclusion that the other reason that he feared for his safety if he returned to Iran is not a Convention reason. Put another way, if the appellant relies on all the asserted facts, that he may have mischaracterized some as Convention based does not permit the Tribunal to ignore the others, provided that those facts establish a Convention-based fear of persecution.'

22. Their Honours concluded (at [27]) that the Tribunal had erred in law `by not fully listening to the case the appellant wished to put ...'.

23. That is not, however, the present case. Here, the Tribunal's offer of a hearing was not acted on. At the same time, the Tribunal plainly took account of all the claims made in the applicant's written statement of claims, which statement was wholly set out in the Tribunal's reasons for its decision. The Tribunal went on to analyse and assess all of the claims in the course of which it characterised the `social group' ground as no more than a `vague reference to his family's support for the PLO'. When viewed in this context, that statement should, I think, be seen as no more than part of the Tribunal's assessment of the facts, and raising no question of legal error. In other words, when read in context, the Tribunal is, in form and in substance, saying that the `social group' point is no more than peripheral to the real issues for the Tribunal to decide, and in that sense, it may be put to one side (cf. Dolan v AOTC (1993) 42 FCR 206 per Spender J at 218).

[emphasis added]

GROUNDS OF APPEAL

27 The issues raised by the appeal were set out in the appellant's written submissions as follows:

"(a) Beaumont J was wrong in holding that the Tribunal's denial of the appellant's claim to fear persecution for reason of membership of a particular social group disclosed no error.
(b) In the circumstances of this case the Tribunal's denial of the existence of the `social group' claim indicates on the balance of probabilities that there was not a bona fide attempt to exercise the Tribunal's power within the meaning of the first Hickman proviso.

(c) The failure to consider a claim overtly made is a breach of an `imperative duty' or `inviolable limitation' on the Tribunal's exercise of its power, within the reasons for judgment of Black CJ in NAAV v Minister for Immigration [2002] FCAFC 228 as properly understood, and within the reason for judgment of Wilcox and French JJ in that case.

(d) If the Court is against the appellant in (b) and (c) above it will be submitted that the approach of the Full Court of this Court to the interpretation of s 474 in NAAV v Minister for Immigration [2002] FCAFC 228 is incorrect.

(e) If the Court is against the appellant in (b), (c) and (d) above but considers that there is sufficient doubt as to the meaning and effect of s 474 of the Act, the appellant submits that the Court should await the judgment of the High Court in matters reserved on 4 September 2002 before giving judgment in this appeal.

(f) It will also be submitted formally that s 474 of the Act is ultra vires the Constitution." [footnotes omitted]

28 The appellant obtained leave, without opposition by the respondent, at the hearing of the appeal, to amend the notice of appeal by adding par 3A which is reflected in issue (b) above. The respondent made written and oral submissions in response to the above issues stated by the appellant, even if the notice of appeal did not reflect those issues precisely. It is convenient to deal with the appeal by reference to the issues thus agreed by the parties.

CONSIDERATION

Particular social group - Issue (a)

29 The first two grounds of appeal raise the question whether the primary judge erred in holding that the Tribunal did address the particular social group ground. It is convenient to deal with this question at the outset.

30 Mr Karp who appeared as counsel for the appellant, relied centrally on the following sentence in the Tribunal's decision:

"The applicant made no claim of fearing persecution for reasons of race, religion, nationality, or membership of a particular social group."
It was contended that this statement was wrong because the appellant and his adviser had raised the particular social group ground. In particular, the appellant's statement included:

"I then realised that the real reason behind my problem was that I and all members of my family had always supported the PLO and later the Palestinian Authority."
And the adviser had included in the written submission in reference to this very part of the appellant's statement:

"It also discloses ... [the appellant's] membership of a particular social group, one constituted by his membership of a family closely aligned to the PLO, through the activities in particular of ... [the appellant's] brother, ...."
31 Mr Karp also contended that the Tribunal's finding "Sati is seeking to harm the applicant because he is seeking revenge or retribution against the applicant's brother for arresting his friends" would have supported the particular social group claim if the Tribunal had considered that ground in relation to the particular finding. The fact that the Tribunal confirmed the refusal of the protection visa, while at the same time making a finding which was consistent with success on that ground, showed, it was argued, that the Tribunal did not consider the ground.

32 The Tribunal's statement that no claim had been made on the particular social group ground is curious in the light of the express reference to that ground in the written submissions of the appellant's migration agent. We have struggled to see an explanation for the apparent error in the context of the proceeding before the Tribunal as a whole. However, there does not seem to be an explanation. Mr Lloyd, who appeared as counsel for the Minister, did not seek to explain the statement. He was content to accept that it was probably an error of expression on the part of the Tribunal. The critical factor, he contended, was that, despite the erroneous statement, the Tribunal, in fact, considered the claim of persecution for reasons of membership of the particular social group, namely, the appellant's family. We agree with this contention.

33 The reason we accept this argument concerns the way in which the family based claim was raised by the appellant and his migration agent, and dealt with by the Tribunal. The migration agent wrote that the family claim was "one constituted by his membership of a family closely aligned to the PLO, ...". The appellant's statement asserted that the family had "always supported the PLO and later the Palestinian Authority".

34 The family claim was therefore inseparably linked to the asserted political support by the family of the PLO and the Palestinian Authority.

35 The Tribunal clearly appreciated both that there was a family claim made, and that, as it was put to the Tribunal, that claim depended upon the linkage with the support for the PLO. Indeed, immediately following the erroneous statement made by the Tribunal, it referred to the relevant part of the appellant's statement. Then, the Tribunal rejected the contention that the reason for the appellant's trouble was support for the PLO. It said:

"However, it is clear from the applicant's own statement that the reason for the altercations between the applicant and this person [Sati] was for reasons other than his support for the PLO [Palestine Liberation Organisation] of the PNA [Palestine National Authority].
36 Having rejected this basis, the Tribunal examined the evidence to seek to establish the reason for the appellant's fear. In that process the Tribunal considered the suggestion that the appellant was targeted because his brother arrested Sati's associates. It seems to us that the better view of the sentence relied upon by Mr Karp, namely, "Sati is seeking to harm the applicant because he is seeking revenge or retribution against the applicant's brother for arresting his friends", is a summary of the appellant's statement rather than a finding of fact by the Tribunal. The essence of the Tribunal's conclusion is that the appellant was targeted as an individual in a vendetta against him alone. As Mr Lloyd pointed out, this finding is consistent with the fact that, while on one occasion Mr Sati beat-up the appellant, on a later occasion the appellant beat-up Mr Sati. In any event, the validity of the fact finding is not for us to rule upon. It is immaterial whether the Court would arrive at the same conclusions upon the facts. What is clear is that the Tribunal did consider whether the appellant was targeted for the reason that he was a member of a family which supported the PLO. It rejected that characterisation and found that the cause of conflict between Sati and the appellant was a private antipathy between the two of them.

37 It will be recalled that the Tribunal referred in its discussion of the legal principles to be applied to s 91S of the Act. This section is only relevant to consideration of a claim on the particular social group ground. It is unlikely that the Tribunal would have referred to that section unless it considered that a particular social group claim had been raised by the appellant.

Particular social group - Issue (b)

38 Mr Karp argued that the failure of the Tribunal to address the particular social group ground amounted to a lack of bona fides under the Hickman principles, and, consequently, s 474 did not apply to protect the decision from challenge. The foundation for this argument has been rejected in dealing with issue (a). Hence, it is not necessary for us to consider the issue further.

39 However, in relation to the issue it is appropriate to flag a matter raised by the Court in the course of argument. Whilst the precise definition of lack of bona fides for the purpose of the Hickman principle is evolving, the concept, at least, encompasses the situation where there is a lack of an honest attempt to deal with the subject matter: see R v Murray; Ex parte Proctor (1949) 75 CLR 379 at 400 per Dixon J.

40 In the present case the appellant encapsulated the allegation in a document which was filed on the day following the hearing of the appeal at the request of the Court. The allegation was in the following terms:

"It is submitted that the Tribunal has, through extreme carelessness, laziness or a similar serious deficiency meriting personal criticism of the member concerned denied the existence of a claim clearly and unambiguously made."
41 Where an appellant alleges a lack of honesty in the decision maker in such terms, the question arises whether the decision maker should be given an opportunity to be heard in relation to the allegation: See Mahon v Air New Zealand [1984] 1 AC 808; but see also R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.

Particular social group - Issues (c), (d) & (e)

42 Again these issues depended upon the appellant establishing that the Tribunal had failed to address the particular social group ground. As we have determined that the Tribunal did address that ground, it is unnecessary to consider these issues further.

Particular social group - Issue (f)

43 The appellant contended that s 474 is unconstitutional. Although no affidavit of service to this effect was filed, it appears that the appellant's solicitors filed and served copies of a notice on the Attorneys-General for the Commonwealth, States and Territories as required by s 78B of the Judiciary Act 1903 (Cth). The notice was dated 21 August 2002. Replies were received from all the Attorneys-General stating that they did not wish to intervene in this appeal.

44 The submission was put formally in view of the decision in NAAV which rejected the same argument. In any event, in view of this Court's determination of issue (a), the question does not arise for consideration in this appeal.

CONCLUSION

45 The appeal must be dismissed with costs.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.




Associate:

Dated: 15 November 2002

Counsel for the Applicant:
Mr L Karp






Solicitor for the Applicant:
Simon Jeans & Associates






Counsel for the Respondent:
Mr S Lloyd






Solicitor for the Respondent:
Australian Government Solicitor






Date of Hearing:
12 November 2002






Date of Judgment:
15 November 2002


Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia