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MIGRATION - Application for review of Refugee Review Tribunal - refusal to grant protection visa.

WACM v Minister for Immigration [2002] FMCA 102 (27 May 2002)

WACM v Minister for Immigration [2002] FMCA 102 (27 May 2002)
Last Updated: 4 March 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WACM v MINISTER FOR IMMIGRATION
[2002] FMCA 102



MIGRATION - Application for review of Refugee Review Tribunal - refusal to grant protection visa.



NAAX v Minister for Immigration and Multicultural Affairs (2002) FCA 263 Boakye-Danquah v Minister for Immigration and Multicultural Indigenous Affairs (2002) FCA 438

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

Migration Act 1958

Judiciary Act 1903

Applicant:
WACM



Respondent:


MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS



File No:


WZ53 of 2002



Delivered on:


27 May 2002



Delivered at:


Perth



Hearing Date:


27 May 2002



Judgment of:


McInnis FM



REPRESENTATION

Applicant:


Applicant in person by videolink



Counsel for the Respondent:


Mr RT Ritter



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) The application be dismissed.

(2) The applicant pay the respondent's costs according to the Federal Court Scale and in accordance with order 62 of the Federal Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 53 of 2002

WACM


Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. There are two applications filed by the applicant on 30 November 2001 being applications numbered W553 and W554 of 2001. Both applications that were handwritten were filed in the Federal Court of Australia and both seek review of a decision of the Refugee Review Tribunal (the Tribunal) made on 8 November 2001. That tribunal decision decided to affirm a decision of the delegate of the respondent not to grant the applicant a protection visa under the Migration Act 1958 (the Act). The two applications which were before the Federal Court of Australia were the subject of orders made by that court on

14 February 2002 where the court ordered in relation to application number W554 of 2001 that it be consolidated with application number W553 of 2001.

2. It is perhaps useful to note that the application number W554 of 2001 is an application for an order to review a decision of the Tribunal and provides a number of grounds which the applicant claims to be the reason he is aggrieved by the tribunal's decision. Those grounds have been agitated today by the applicant in person with the assistance of an interpreter and have been set out usefully in written submissions by the respondent represented today by Mr Ritter of counsel. The grounds are set out as they appear in the application:

"(1) The tribunal's time is very limited and the Judge didn't inough time to listen to my explanatiols.

(2) The judge has misunderstood my explanation about my uncl and, Yousef.

(3) In the interviw I have mentiond that 2 month befor Abadan Riot I went to Ahwaz but the tribunal's claim that I was working in Abadan during that riot.

(4) I was trying to clear the mistake of my previce adviser. The judge used them against me and didn't asked me more about the riot in Abadan."

3. The proceedings in both matters were, as I have indicated, subject to orders made by the Federal Court on 14 February 2002 which also included an order that the applicant file and serve on or before 4 March 2002 an amended application giving particulars of any grounds found in relief under the Judiciary Act 1903 or a written statement setting out the reasons why he considers the decision of the Refugee Review Tribunal was wrong and any affidavit upon which he intends to rely at the hearing of this matter. In addition, each party was given leave to file and serve within 14 days written submissions on the question of whether the application should be transferred to the Federal Magistrates Court.

4. Ultimately, by order of the Federal Court the application was in fact the subject of a transfer to this court, and that order was made on 28 March 2002. When the application commenced this day the applicant indicated that he had some written submissions upon which he sought to rely. It was clear that he had not complied with the orders made by the court to which I have referred on 14 February 2002. I decided, as a matter of procedural fairness, that I should receive the handwritten submissions and indeed of course heard further submissions made by the applicant on his own behalf with the assistance of the interpreter.

I directed that the handwritten document in the Persian language be read out and interpreted to the court by the interpreter in order to assist an understanding of those issues to be agitated by the applicant.

5. I should say at the outset that the court has no reason to doubt the genuineness and sincerity of the applicant and the manner in which he has prepared submissions. It is not the court's position to seek in any sense to challenge the applicant in terms of either his sincerity or genuineness in bringing the matters set out in the document to which I have referred to the court's attention and arguing the matters this day. The court heard submissions by the applicant in addition to the handwritten submissions dated 24 February 2002 and further heard from the applicant by way of reply to those submissions made for and on behalf of the respondent.

6. The respondent for its part relied upon an outline of submissions filed with the court on 23 May 2002. Those submissions were served upon the applicant and counsel for the respondent adopts and relies upon that outline of submissions in addition to making other submissions in this matter. It should be noted that in this application the court has been confronted with authorities of the Federal Court of Australia which seek to explain the role of the court in an application of this kind. It is now known that those authorities appear to be authorities where there is at least some divergent view as to the proper role of a court in hearing an application of this kind.

7. I note that a specially convened five-member Full Court bench of the Federal Court of Australia will hear and consider appeals from a number of migration matters on 3 June 2002. The court, as I understand it, will consider appeals from a number of decisions where there appears to be, as I have indicated, divergent views. That divergence of opinion may best be referred to in decisions on the one hand of Gyles J in the case of NAAX v Minister for Immigration and Multicultural Affairs (2002) FCA 263, and alternatively the views of Wilcox J, amongst others, in the decision of Boakye-Danquah v Minister for Immigration and Multicultural Indigenous Affairs (2002) FCA 438.

8. There is indeed some divergence of opinion as to the role of the court and indeed the manner in which this court should approach the interpretation of section 474 of the Act and the way in which the court should apply the principles in relation to privative clauses which have been set out in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 615-616 (Hickman's case). It is not the intention of the court in this application to seek in any way to resolve that divergent view. It seems to me in this particular application that the court can have regard to the divergent views of both Gyles J and Wilcox J in the cases to which I have referred.

9. I accept that on one version of the interpretation of a privative clause this court's role is limited, as submitted by the respondent, in its scope for review to the principles derived from the decision in Hickman's case to which I have referred, and that in order to impugn a privative clause decision as defined by the Act the court needs to be persuaded that at least one of three conditions have been met by an applicant, namely that the decision-maker did not make a bona fide attempt to exercise the power of the tribunal, or that the exercise of the power by the tribunal was unrelated to the subject matter of legislation, or that the decision was not reasonably capable of reference to the power given to the decision-maker.

10. The alternative, in any event, it is submitted on behalf of the respondent that even if I were to adopt the approach taken by Wilcox J in the Boakye-Danquah decision, there is indeed no ground made out in the application or submissions made before this court this day to allow judicial review. It seems to me on a proper consideration of all the material before me, including the submissions made for and on behalf of the applicant, that it is appropriate that I proceed to consider the matter in relation to the submissions made this day, notwithstanding the divergent view that I have referred to of different Federal Court justices in relation to that issue of the interpretation of the effect of the privative clause contained in section 474 of the Migration Act.

11. I have already referred to the issues raised by the applicant in his application. It seems to me that on a proper interpretation of what the applicant submitting to this court he has deep and sincere concerns about the manner in which the review was conducted, the lack of opportunity for him to be properly heard, and indeed in addition to that, a suggestion that the tribunal had prejudged the application. In response to those accusations, and indeed in response to the other matters set out in the applicant's applications, the respondent has drawn the court's attention to the hearing time which was conducted by the review tribunal, namely that the hearing took place over a period of some four and a quarter hours from 3 pm until 7.15 pm. Reference is made to that at page 123 of the Court Book.

12. It is further stated that the tribunal had taken into account written submissions which were made and which appear at page 126 of the court book. Those written submissions from the Refugee Immigration Legal Centre dated 14 August 2001 were noted by the tribunal in its decision at page 193 of the court book. In its decision, the tribunal in making the findings states:

The applicant's adviser provided the Tribunal with oral submissions at the hearing and comprehensive and very constructive written submissions dated 14 August 2001 on the applicant's claims and how they should be assessed on the available evidence, case law and relevant country information. The Tribunal has given close consideration to these submissions and the evidence of the applicant and the other material supplied in support of his claim. The Tribunal has paid particular regard to the adviser's general and specific cautionary submissions on the applicant's credibility at pages 2 to 6 of his written submissions of 14 August 2001 which the Tribunal found very insightful of the difficulties faced by refugees in making their claims, but also in relation to the applicant's circumstances.

13. I should add that the court likewise is placed in a difficult situation in hearing applications of this kind as it is often difficult for unrepresented applicants to appreciate and understand the nature of judicial review in applications of this kind. That misunderstanding is perhaps compounded by the issue which is now going to occupy the attention of a five-member bench of the Federal Court of Australia namely the way in which the court should interpret and apply the privative clauses, that is, section 474 of the Act.

14. It seems to me, however, that in an application of this kind it is at least appropriate, on any interpretation, that I should look at the suggestion by the applicant that effectively, as I understand his submission, the Tribunal did not act in good faith for the reasons to which I have referred. Also, I should take note of the matters raised by the respondent in answer to that suggestion. In my view, having considered the Tribunal's reasons for decision and the material placed before it, I am satisfied that it properly received oral submissions and indeed subsequent written submissions dated 14 August 2001. I cannot see on the evidence before me any material which would persuade me to conclude that the Tribunal has not acted in good faith in dealing with the submissions made for and on behalf of the applicant.

15. Indeed, quite to the contrary, it seems to me on the material before me, that the Tribunal has embarked upon its task in a way that certainly has regard to the detailed and significant submissions made for and on behalf of the applicant. The applicant, however, further asserts that there were other errors made by the Tribunal in the consideration of his application. In my view, each and every one of those errors could properly be characterised as errors which relate to either findings of fact or the manner in which the tribunal reached its findings of fact.

16. Where a court is asked to undertake the task of judicial review, it is not to the point that this court may have approached the fact-finding mission in a different way to which the Tribunal undertook its mission on this occasion. It is also not to the point that this court may have reached a different conclusion in relation to any specific finding of fact to the conclusion reached by the tribunal. In my view, it is sufficient that the tribunal has embarked upon its task in a manner which is consistent with acting in a bona fide manner or acting in a manner that was reasonably open to it, having regard to its powers and having regard to the subject matter of the legislation.

17. It is clear in my view that on a judicial review it is not for this court to embark upon a rehearing or to in fact re-examine each and every fact that was before the tribunal. It is certainly not appropriate, in my view, for the court to listen to any tape-recordings to which reference has been made by the applicant in support of his application this day.

18. It is submitted on behalf of the respondent that having regard to the responsibility the court has in review of an application of this kind, that the reasons of the tribunal disclose no jurisdictional error so that even if I were to adopt the approach of Wilcox J, as referred to earlier, then there is no ground for granting judicial review.

19. It was submitted by counsel for the respondent that in this particular application the matters raised which are of concern to the applicant are matters where there is a dispute as to the factual findings by the tribunal and that each and every one of those disputes are indeed just that, a dispute as to the factual finding, but not that those facts as found by the tribunal were not facts reasonably open to the tribunal or that the reasoning process was a reasoning process that was not appropriate in all the circumstances. In my view, that submission is clearly correct on the material before me.

20. It seems to me that the tribunal has given due consideration to all relevant matters and made findings that were reasonably open to it, and at least made findings of fact which cannot be challenged in a review of this kind, that is, a judicial review. Hence, regardless of the way in which the issue of the divergent opinions of Federal Court justices as to the application of privative clauses is resolved, I am satisfied that on the material before me there has been no error of a kind which would attract judicial intervention in this decision. For those reasons the applications should be dismissed.

21. Accordingly I make the following orders;

(1) The application be dismissed.

(2) The applicant pay the respondent's costs according to the Federal Court Scale and in accordance with order 62 of the Federal Court Rules.

22. I will direct that the reasons for decision that I have just delivered be transcribed and that a copy, upon review of those reasons for decision, provided to both parties.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 27 May 2002
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