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MIGRATION - Application for protection visa - privative clause applies - application refused.

COSTS - No order - change in circumstances of country of origin of applicant arrival in Australia.

WAGI v Minister for Immigration [2002] FMCA 320 (18 February 2003)

WAGI v Minister for Immigration [2002] FMCA 320 (18 February 2003)
Last Updated: 21 February 2003


[2002] FMCA 320

MIGRATION - Application for protection visa - privative clause applies - application refused.

COSTS - No order - change in circumstances of country of origin of applicant arrival in Australia.

Migration Act 1958, ss.48B, 417, 474

NAAV v MIMA (2002) FCAFC 228




File No:

WZ 107 of 2002

Delivered on:

15 November 2002

18 February 2003 (costs)

Delivered at:


Hearing Date:

15 November 2002

Judgment of:

McInnis FM



In person

Counsel for the Respondent:

Ms L B Price

Solicitors for the Respondent:

Australian Government Solicitor


The Application be dismissed with no order as to costs.




WZ 107 of 2002







(Revised from transcript)

1. This is an application for judicial review filed with the court on 26 April 2002. The application is by the applicant who claims to be a citizen of Afghanistan. He arrived in Australia, according to the material, on 22 August 2001. The background is set out both in submissions of the respondent and in the decision made on 4 April 2002 of the Refugee Review Tribunal (the RRT) which is the subject of this application.

2. In its decision, the tribunal notes that on 26 September 2001 the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958. It is noted by the tribunal that an applicant for a visa of a particular class is entitled to be considered against the criteria for all subclasses within that class. Visa (Class XA) includes two subclasses, 785 (Temporary Protection), and 866 (Protection).

3. On 30 November 2001 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa, and on

6 December 2001 the applicant applied for review of that decision. The applicant had been previously represented by a firm of solicitors throughout the process, but appears self-represented here before the court this day.

4. The RRT has set out the relevant legislation in its reasons for decision. I do not need to restate those references in this judgment.

I should add, though, for the sake of completeness that when the matter commenced this day, the respondent sought to rely upon an outline of submissions which had been filed with the court on 13 November 2002. It was clear from an initial exchange that the applicant had not received a copy of those submissions. An order of the court had been made that those submissions be filed and served at least two days prior to the hearing.

5. I conclude that there has been non-compliance by the respondent with that order and that is a matter of some regret. However, the applicant was then given an opportunity to read, with the assistance of the interpreter who appears this day, the contents of the respondent's outline of submissions. It was on that basis that I then permitted the respondent to adopt that outline of submissions and to otherwise make further submissions in response to the matters raised by the applicant.

6. I should further indicate that there had been an order that the applicant file and serve written submissions and that those submissions be filed and served at least five days before the hearing. No written submissions were received by the court and it was indicated by the applicant that he did not in fact rely upon further written submissions. In the circumstances, I thought it was fair and reasonable to allow the applicant to simply make oral submissions to this court and that course was not opposed by the respondent.

7. As I understand it, in addition to the matters raised by the applicant in his statutory declaration which was before the tribunal and declared on 23 September 2001, and other material which had been placed before the tribunal by way of correspondence from the applicant's solicitors which appears to commence at page 81 and conclude at around page 129 of the court book, the applicant in his oral submissions to this court has raised two additional matters which he claims should be taken into account by this court in the exercise of the powers it has for judicial review of the decision of the RRT to which I have referred.

8. The first of those matters was a complaint that due to the shortage of time prior to the commencement of the tribunal hearing, the applicant did not have sufficient opportunity to discuss the procedures and processes of the tribunal with his lawyer. It seems common ground that the applicant's lawyer was indeed present throughout the hearing and had made certain submissions to the tribunal.

9. It also appears from the material that there was a video conference which had taken place at an earlier time, that is on 28 February 2002, where the video conference in Sydney was attended in Derby by the applicant with his adviser present in Sydney. There can be no doubt that the hearing conducted in that manner is less than satisfactory and

I note for the present purposes the applicant's grievance that he did not then, in the circumstances, for whatever reason, have an adequate opportunity to properly acquaint himself with the practice and procedure and consult his lawyer for that purpose.

10. The second matter raised by the applicant this day is that a matter which he regards as being one of some sensitivity was a significant issue which had not been properly raised and considered by the tribunal. He refers to a friend named Ghafor who he had known for some time and who was a friend of the applicant's prior to the applicant leaving Afghanistan. It is said that that friend had formed a relationship with a girl who was said to be a girl from the Pashtun group and that in those circumstances that was, and I interpolate here, a particularly dangerous relationship or liaison which the applicant discovered after his arrival in Australia, according to him, led to the death of his friend.

11. It is said by the applicant that because he was a friend of Ghafor who had died, he says, at the hands of the Pashtun people, that if he were to return to Afghanistan then he would be at some risk as a consequence of his relationship with the friend who, as I have indicated, had a relationship with the Pashtun girl.

12. It is said by the applicant that I should otherwise exercise any discretion I have to set aside, as I understand it, the tribunal decision and that I should take into account those additional factors.

13. The role of the court on judicial review of decisions of this kind is, as correctly submitted for and on behalf of the respondent, quite limited. The fact is that the Full Court of the Federal Court of Australia in the recent decision of NAAV v MIMA (2002) FCAFC 228 had recently considered the operation of what is described as a privative clause; namely, s.474 of the Migration Act.

14. The operation of that privative clause had of course been agitated in many cases prior to the Full Court decision to which I referred. Following the judgment of the court in NAAV, the principles which now apply and which have been adopted both in that judgment and subsequently result in the following principles, it is submitted by the respondent:

"(a) s.474(1) is to be interpreted in accordance with the principles of construction enunciated by Dixon J in Hickman and thereafter consistently applied by the High Court;

(b) s.474(1) affects the substantive law as to what decisions are valid, altering (and giving force and effect to) what would otherwise be unlawfulness in the decision-making process. In the language of Dixon J in Hickman, and subject to three provisos, a privative clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its act within the limits laid down by the instruments giving it authority;

(c) there is a further limitation on the validating effect of s.474(1) namely the purported exercise of power must not be one which contravenes a final or inviolable limitation upon the powers, duties and functions of the decision-maker."

15. It is important to note that the three matters which are the provisos to the application of the principles of Dixon J in the Hickman decision have been identified as follows: the decision-maker is required to have made a bona fide attempt to exercise its power, the decision relates to the subject matter of legislation, and the decision is reasonably capable of reference to the power given to the decision-maker.

16. It is submitted in the present case on behalf of the respondent that the tribunal did consider the applicant's claims that he faced persecution on return to Afghanistan. It is further submitted that the tribunal honestly dealt with the subject matter given to it under the Act and acted in pursuance of its powers. The decision, it is said, was open to the tribunal in the exercise of its statutory powers. It is further submitted that the application in the present case does not identify a Hickman exception, nor does the application identify any requirement or limitation on the exercise of power by the tribunal that it has not complied with and which, notwithstanding the terms in effect of s.474, is essential to a valid decision. In those circumstances it is submitted that the tribunal's decision is final and conclusive and that the application is dismissed.

17. In relation to the issues raised in oral submissions by the applicant this day, it is further submitted for and on behalf of the respondent that if indeed those matters are matters which are worthy of further investigation, then that investigation of the new facts is not a proper matter to be considered by this court, sitting as it does as a court of judicial review, limited in the manner that I have described according to the authorities to which I have referred.

18. It is submitted that instead, if there be other matters or additional material that the applicant wishes to rely upon, then he has other avenues of redress under the migration legislation. In particular, he may pursue remedies available to him under s.48B or s.417 of the Migration Act.

19. In my view, in the present case, on a proper reading of the decision and reasons for decision of the tribunal, it is clear that a number of matters were properly and carefully considered and I conclude that in applying the principles of NAAV and subsequent decisions, that in the present case the tribunal appears to have undertaken its task lawfully. It was a task it was empowered to do and in the circumstances it is my view that none of the provisos that have been referred to could be said to have been contravened in the present case.

20. The matters now raised by the applicant fall into two categories. The first relates to the inability to have proper access to his lawyer for the purpose of understanding the proper process of the tribunal. However, in my view, even if that be a matter which could be properly taken into account in some cases, in the present case I am satisfied that a number of matters were agitated in very thorough and detailed form before the tribunal, and it should also be noted that there was some degree of success in the sense that the tribunal was prepared to make a finding different to the finding of the delegate; namely, it was satisfied that for the purpose of article 1 of the Convention that the applicant is a national of Afghanistan.

21. It seems to me that a number of other matters were agitated quite thoroughly and were considered carefully by the tribunal, and it is important to note in addition that at page 143 of the court book the tribunal makes specific reference to the concerns and issues raised by the applicant in relation to the Pashtuns generally. On a proper reading of the reasons for decision, that issue was in general terms agitated and considered by the tribunal.

22. I do not, therefore, regard the latest information as necessarily raising a new issue in general terms, though clearly it does raise a specific issue about the alleged treatment of a former friend of the applicant's in the circumstances I have described. It cannot be said, however, that the death of that person which occurred after the applicant arrived in Afghanistan could possibly then, at the time of the applicant's departure from Afghanistan, be said to be a reason for his departure. However, to the extent that the tribunal considered the more general issue of the Pashtuns and otherwise considered the factors to be taken into account in terms of the real risk of the applicant returning and being the subject of persecution, it seems to me that in the present circumstances and having regard to the reasons of the tribunal, particularly at page 144 of the court book, it has properly considered those issues; that is, the issues in relation to the concern the applicant has for his own safety arising principally from the perceived threat to him by the Pashtun group.

23. Having regard to the powers that this court has to which I have referred and having regard to the submissions in relation to those powers from the respondent, which for the purpose of this application I accept, there is nothing that is before the court on this application which would justify or indeed warrant any setting aside of the tribunal decision.

I am satisfied in all the circumstances, as I have found, that the tribunal did act in accordance with its powers and has acted appropriately in this application. For those reasons it follows that the application should be dismissed.

24. I will direct:

(1) The respondent shall file and serve any submissions in relation to the issue of costs in this application on or before 22 November 2002.

(2) The applicant shall file and serve any written submissions in reply on or before 29 November 2002.

(3) The respondent be permitted to file submissions on the issue of costs in this matter identical with any other submissions which it has been ordered to file and serve in other matters listed before the court this week.


25. In this matter I have permitted the Respondent to make application for costs and permitted the Respondent to make similar submissions in this matter to those submissions made in matter number WZ163 of 2002.

26. It is apparent from the chronology in the present case that there is a similarity between the background circumstance of this case and the circumstances in application WZ163 of 2002. In the present case the Applicant arrived in Australia on 22 August 2001 and lodged an application for a protection visa on 26 September 2001. He fled from Afghanistan prior to the fall of the Taliban.

27. Having considered the submissions in this matter which as indicated are in identical form to those submissions provided by the Respondent in application WZ163 of 2002 it is appropriate that I adopt the reasons now provided in the other application and accordingly refuse to make an order for costs in this present application. The only order therefore of the Court will be that the application be dismissed with no order as to costs.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of McInnis FM


Date: 18 February 2003
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