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MIGRATION - Review of Refugee Review Tribunal decision affirming delegate's decision to refuse to grant a protection visa - no reviewable error disclosed - application dismissed.

SGCB v Minister for Immigration [2002] FMCA 218 (20 September 2002)

SGCB v Minister for Immigration [2002] FMCA 218 (20 September 2002)
Last Updated: 15 October 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SGCB v MINISTER FOR IMMIGRATION
[2002] FMCA 218



MIGRATION - Review of Refugee Review Tribunal decision affirming delegate's decision to refuse to grant a protection visa - no reviewable error disclosed - application dismissed.



Federal Magistrates Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.65, 474

NAAV v Minister for Immigration [2002] FCAFC 228

NAIN v Minister for Immigration [2002] FMCA 177

Applicant:
SGCB



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


AZ229 of 2002



Delivered on:


20 September 2002



Delivered at:


Adelaide



Hearing Date:


20 September 2002



Judgment of:


Driver FM



REPRESENTATION

Applicant appeared in person

Counsel for the Respondent:


Mr S Stretton



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) Application dismissed.

(2) Applicant to pay respondent's costs and disbursements of and incidental to the application, fixed at $3,000.


FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

ADELAIDE


SZ229 of 2002

SGCB


Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. I have before me for ex tempore judgment an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 25 June 2002. The application was filed originally in the Federal Court and transferred to this Court. The applicant seeks writs of certiorari, prohibition and mandamus. The applicant asserts that the RRT exceeded its jurisdiction in making its decision to affirm a decision of the delegate not to grant a protection visa. The applicant also asserts that the RRT constructively failed to exercise its jurisdiction in arriving at its decision.

2. The background facts relating to this matter are set out in paragraphs 1 through to 17 of the written submissions filed on behalf of the Minister. I accept those facts as accurate and adopt them for the purposes of this decision. The applicant, who claims to be a citizen of Afghanistan, arrived in Australia on 1 August 2001. On 22 September 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958(Cth) ("the Migration Act"). On 11 April 2002 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa and on 12 April 2002 the applicant applied to the RRT for review of that decision.

3. The applicant has, in the last few days, faxed to the Court written submissions which go to the current political situation in Afghanistan. He has also included a photocopy of an original newspaper article he holds. That article purportedly sets out facts about members of his family who are accused of plotting as part of an Islamic association to set off a bomb in Kabul. The applicant told me that the article is dated 13 March 2002 and was received by him on 4 September 2002. The applicant asserts that while he made an allegation to the RRT about that matter, he did not have any proof at the time he was heard by the RRT.

4. Apart from that material presented to me today, the applicant has not been able to advance any legal submissions as to why I should overturn the decision of the RRT. The applicant is self-represented and has not had the benefit of any legal advice in relation to this application. It is apparent to me that he has no real understanding of the legal issues to be resolved in these proceedings. In the circumstances, I sought at the outset of the hearing today to explain to him the issues to be resolved and to invite him to withdraw his application if he wished to. He chose to exercise his right to be heard and to proceed with the hearing.

5. Mr Stretton, for the Minister, has submitted that the decision of the RRT is subject to the privative clause in s. 474 of the Migration Act. Mr Stretton submits that nothing has been or could be advanced to support a decision to interfere with the decision of the RRT in the face of the privative clause. The Minister seeks the dismissal of the application with costs.

6. The operation of the privative clause was considered by the Full Federal Court in NAAV v Minister for Immigration [2002] FCAFC 228. That decision is binding upon me. All of 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 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.

7. Taking the decisions of the judges in NAAV as a whole, on a generous view the following grounds of review remain open to an applicant:

(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 section 474, is implied from the statute or imposed by the common law and which must be observed for the effective exercise of the power.

8. Grounds 1 to 4 are another way of expressing the so-called Hickman principle. Grounds 5 and 6 are another way of expressing what are variously described as inviolable conditions or jurisdictional preconditions to the exercise of power. In my view, the applicant in these proceedings is unable to satisfy any of these grounds. Plainly, the decision was made by the RRT within constitutional limits on power. It was also a bona fide attempt to exercise the discretion of the RRT and was, therefore, made in good faith.

9. The decision is clearly capable of reference to the powers conferred on the RRT by the Migration Act. The only relevant jurisdictional precondition on the exercise of power which the applicant could, in my view, have pointed to, if he were aware of it, was the obligation in s.65 of the Migration Act for the decision maker to be satisfied that a visa should be refused as a precondition to refusing a visa. In the case of NAIN v Minister for Immigration [2002] FMCA 177, I found that the attainment of the necessary level of satisfaction in s.65 was a jurisdictional prerequisite to the exercise of power by the RRT.

10. However, the applicant in these proceedings cannot point to any legal error made by the RRT in attaining the level of satisfaction. He clearly disagrees with the conclusions reached by the RRT but his application is an invitation to the Court to review the merits of that decision. In addition, even if there were a legal error made, it is not any legal error in the attainment of the necessary degree of satisfaction that would invalidate a decision.

11. It is clear from the majority judgments in NAAV that simply identifying a wrong issue or asking a wrong question, ignoring relevant material or relying on irrelevant material will not be sufficient. Something more fundamental to the exercise of power must be identified. The applicant is unable to identify such a fundamental error. I see nothing in the decision and reasons of the RRT to indicate any such fundamental error.

12. The newspaper article presented to the Court shortly before the hearing today was not available to the RRT. Obviously, the failure of the RRT to refer to that article is because the article was not before it. The matters contained in the article may provide some basis for the applicant to approach the Minister to consider substituting a different decision. That is for the applicant to decide, and I express no view about it.

13. In these proceedings, the applicant has been unable to establish any reviewable ground in support of his application. Therefore I will dismiss the application. Mr Stretton, on behalf of the Minister, has also sought an order for costs.

14. Mr Stretton has asked for costs in the sum of $3,000. I am satisfied that that request is reasonable, having regard to the scale of costs set out in the Federal Magistrates Court Rules 2001 (Cth). I am also satisfied that costs should follow the event in this case and that I should make an order for costs. My usual practice in ordinary migration proceedings of this nature is to fix the amount of costs that should be paid. I will do that in this case. I will therefore order that the applicant pay the respondent's costs and disbursements of and incidental to this application, which I fix in the amount of $3,000.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 10 October 2002
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