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MIGRATION - Application for review of decision of the Refugee Review Tribunal - no jurisdictional error - privative clause decision - application dismissed.

NAJC v Minister for Immigration [2002] FMCA 256 (1 November 2002)

NAJC v Minister for Immigration [2002] FMCA 256 (1 November 2002)
Last Updated: 3 February 2003


[2002] FMCA 256

MIGRATION - Application for review of decision of the Refugee Review Tribunal - no jurisdictional error - privative clause decision - application dismissed.




File No:

SZ508 of 2002

Delivered on:

1 November 2002

Delivered at:


Hearing Date:

16 October 2002

Judgment of:

Barnes FM


Counsel for the Applicant:


Solicitors for the Applicant:


Counsel for the Respondent:

Mr JD Smith

Solicitors for the Respondent:

Blake Dawson Waldron


(1) That the application is dismissed.

(2) That the applicant pay the respondent's costs.




SZ508 of 2002







The application

1. This is an application for relief under section 39B of the Judiciary Act 1903 in respect of a decision of the Refugee Review Tribunal (the Tribunal) which was made on 2 May 2002 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.

2. The applicant applied to the Federal Court on 22 May 2002 and the matter was transferred to this court on 10 July 2002 by Stone J.

3. The applicant claimed that the Tribunal:

(1) did not consider him as a refugee despite many evidentiary proofs;

(2) did not observe procedures required to be observed in connection with the making of the decision;

(3) ignored the merits of the claim and did not take into account what he described as "the verdict" from the country report;

(4) did not act in good faith;

(5) misjudged the fate of his claim;

(6) made a number of errors to decide the fate of the claim.

(7) ignored relevant evidence such as to constitute actual bias and denial of procedural fairness;

(8) failed to investigate his claims of persecution in India amounting to actual bias;

(9) erred in such a way that the decision of the High Court in Muin v Refugee Review Tribunal (2002) 76 ALJR 966 is relevant.

The Tribunal decision

4. The applicant was accepted by the Tribunal to be a citizen of India. He arrived in Australia on 17 June 2000 and lodged an application for a protection visa on 1 August 2000. That application was refused on 10 August 2000 and the applicant applied to the Tribunal for a review of the decision.

5. The applicant claimed that he was from Jammu Kashmir in India and feared persecution by reason of his religion (Hindu) and his political opinion (as President of the Hindu Shiv Sena). On 25 February 2002 the Tribunal wrote to the applicant advising him that it had looked at all material relating to his application but was not prepared to make a favourable decision on that information alone and inviting him to a hearing on 8 April 2002. The letter advised that if he did not attend the hearing and a postponement had not been granted the Tribunal may make a decision on his case without further notice. On 12 February 2002 the applicant wrote to the Tribunal seeking an adjournment to enable him to obtain supporting documentation regarding his case. According to the Tribunal's reasons for decision, on 22 March 2002 the applicant confirmed by telephone that he intended to attend his hearing and that he wanted to give oral evidence. He did not attend the hearing and the Tribunal decision notes that he did not contact the Tribunal to explain his failure to attend. The Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

6. The Tribunal found that the applicant's claims were brief and vague and amounted to nothing more than unsupported allegations. As a result of the applicant's lack of detail and vagueness the Tribunal indicated that it had grave doubts about his credibility. In any event, the Tribunal went on to consider whether the applicant could relocate to another part of India if he had problems in Jammu Kashmir. The Tribunal found that it would be reasonable in the circumstances for the applicant to relocate within India and that he would not face persecution for a Convention reason if he were to do so. On this basis theTribunal was not satisfied that the applicant met the definition of a refugee or that he was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. It affirmed the decision not to grant a protection visa.

Application of the Law

7. The Tribunal's decision is a privative clause decision within the meaning of s.474(2) of the Migration Act 1958 ("the Act") and is thus subject to the limitations on judicial review prescribed by section 474(1) which were introduced by the Migration Legislation Amendment (Judicial Review Act) 2001 as applicable to all applications made to the Court on and from 2 October 2001.

8. The effect of section 474 has been considered by the Full Court of the Federal Court in NAAV v MIMIA [2002] FCAFC 228. In that case the five judges constituting the Full Court agreed that s.474(1) is not to be read literally but is to be construed in the same manner as the kind of privative clause considered in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. In that case Dickson J observed at 615:-

"Such a 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 acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body."

9. There was also broad agreement in NAAV that the purported exercise of power by the decision maker must not be one that contravenes what is variously described as an "inviolable limitation or restraint" (Black CJ at [12]), a "final limitation upon the powers, duties and functions of the decision maker" (von Doussa J at [619]) or a "structural" element in the operation of the Act (Black CJ at [37]). As a matter of construction, the broad statement of legislative intention expressed in a privative clause may be displaced by a provision which makes clear Parliament's intention that the observance of some procedure or the proper consideration of some issue is to be a precondition for a valid decision. As outlined by Sackville J in Zahid v MIMIA [2002] FCA 1108, there is a difference between the approach taken by the majority (Black CJ, Beaumont and von Doussa JJ) and that of the minority (French and Wilcox JJ) in relation to the correct approach to such final or inviolable limitations on the decision maker's powers.

10. Four of the grounds raised by the applicant (see (1), (3), (5) and (6) described in paragraph 3 above) do not establish any reviewable error because the applicant seeks impermissible merits review. Further no particulars of the errors alleged are provided by the applicant and none are apparent in the Tribunal's reasons. Insofar as the applicant is alleging that the Tribunal ignored relevant evidence and made findings in the face of contradicting independent evidence there is no evidence to support such a claim. I note in any event that if the decision did involve jurisdictional error in the sense identified in Craig v South Australia [1995] 184 CLR 164 it would be validated by the privative clause. As Black CJ, with whom von Doussa and Beaumont J agreed, stated in NAAV at [30]:

"I agree that the enactment of section 474(1) has the consequence that an error of law on the part of the Minister or delegate in reaching the satisfaction that operates as a precondition to power to grant and cancel visas under the Act does not result in every case in the decision being invalid.

I accept that section 474(1) may be taken to provide the "contrary intention", which gives the administrative decision maker authority to make a decision otherwise than in accordance with law, referred to in Craig v South Australia (1995) 184 CLR 163 at 179. For this reason I take s474(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."

See to the same effect von Doussa J at [636] - [639] and Beaumont J at [277].

11. Grounds (4), (7), (8) and (9) of the applicant's submission involve allegations of a lack of good faith and actual bias on the part of the Tribunal. It appears that it is argued that this is within the Hickman exceptions in constituting a lack of a bona fide attempt by the Tribunal to exercise its power. As was pointed out by Kiefel J in NADR v MIMIA [2002] FCAFC 293 at [31] bad faith in this context "implies a lack of honest or genuine attempt to undertake the task and involves a personal criticism of the Tribunal or officer in question". It is an allegation not to be lightly made and must be clearly alleged and proved (Ayan v Minister for Immigration and Multicultural Affairs [2002] FCA 470 at [8]; SBAP v Refugee Review Tribunal [2002] FCA 590 at [49]). Also see NAAG of 2002 v MIMIA [2002] FCA 713 at [24]. Insofar as the applicant alleges actual bias I note that as von Doussa J stated in SCAA v MIMIA [2002] FCA 668 it would be a rare and exceptional case where actual bias could be demonstrated solely from the published reasons for decision.

12. There is nothing in the material before the Court in this case from which bias or lack of good faith on the part of the Tribunal could be inferred. The evidence does not establish a lack of a bona fide attempt by the Tribunal to exercise its power.

13. Paragraph (9) of the applicant's submission suggests that the decision in Muin is relevant to the case in some unspecified manner. The decision in Muin is to the effect that there is a lack of procedural fairness where an applicant before a Tribunal is misled into thinking that the Tribunal has considered particular relevant information and, as a result, does not ensure that such information is placed before it (see Keifel J at [24] with whom Spender J agreed in NADR). The applicant did not explain how the decision in Muin was relevant in his circumstances. However, as he was self-represented, I have considered the evidence before me. The applicant was sent a letter on 25 February 2002 stating that the Tribunal had looked at all the material relating to his application. I have considered the argument that the effect of the sending of this letter could be a denial of procedural fairness on the basis that the applicant was misled into thinking that the Tribunal had read the information referred to by the delegate of the Minister in the so-called "Part B" documents and as a result did not ensure that the Tribunal had relevant information placed before it. However, in NADR the Full Court of the Federal Court considered a similar claim. As was pointed out in NADR the decision of the High Court in Muin turned upon agreed facts. Such agreed facts are absent in the present case. In particular it has not been agreed in this case that the Part B documents were not physically provided to the Tribunal. The applicant has not established that he was misled into thinking that the Tribunal had considered particular relevant information and that as a result he did not ensure that such information was placed before it. There is no indication either in the applicant's written submission or in his oral evidence of what particular steps he would have taken had he been told, if it was the case, that the Tribunal had not been provided with any or all of the part B documents. In particular the applicant does not identify the particular information which should have been taken into account and which he may have ensured was placed before the Tribunal if he had been advised that this was not the case. I note that as Keifel J point out in NADR it cannot be inferred as a fact in every case involving a letter in the terms of the letter of 25 February 2002 that an applicant was affected in some way by it when he came to provide information to the Tribunal and participate in the hearing. Further, Muin was a case decided in relation to a different form of the legislation. In particular section 474 did not apply. Insofar as Muin dealt with a lack of procedural fairness I note that NAAV has established that the effect of the privative clause is, in effect, to validate jurisdictional errors involving a breach of the rules of natural justice (see von Doussa J at [628]-[638] Black CJ concurring [4] and Beaumont J at [91] and following and also at [114]-[116]. Thus procedural unfairness, not rising to the level of a failure to deal with an application in good faith, does not ground review.

14. This finding in NAAV is also relevant to the argument in paragraph (2) of the applicant's submission that the procedures that were required to be observed under the Act in connection with the making of the decision were not observed. The applicant does suggest in his application that he was deprived of the opportunity to fully present his case to the Tribunal. He did not attend the hearing despite having been notified of the Tribunal's inability to make a favourable decision on the information before it and of an invitation to a hearing in the letter of

25 February 2002. In providing such invitation the Tribunal complied with section 425 and acted in accordance with its power under section 426A(1) of the Act. The Tribunal had the power to proceed as it did and therefore did not fail to observe that procedure. In any event had there been procedural unfairness the decision would be validated by the privative clause as discussed above.

15. The only other argument that emerges from the claims of the applicant is the possibility that the Tribunal failed to comply with an inviolable limitation upon its powers in the sense considered by the majority in NAAV (see Sackville J's clear exposition of the majority view in NAAV in Zahid with which I respectfully agreed in Moulana v MIMIA [2002] FMCA 219). In this case there is nothing suggest and no evidence to support a claim that the Tribunal failed to comply with any inviolable or final limitation imposed by the Act. The only provision of relevance is, as indicated, section 425 which provides that the Tribunal must invite the applicant to appear before it. As indicated, the Tribunal complied with this requirement. Further, the majority view in NAAV is that section 425 is not an inviolable limitation or restraint on the powers of the Tribunal and that hence section 474(1) would protect the decision from invalidity if the decision maker had not complied with section 425 provided the Hickman provisos were satisfied (see von Doussa J at [633] and [672] and NAHL v MIMIA [2001] FMCA 230 at 27-30).

16. I have already indicated that it has not been established that the decision was not a bona fide attempt to exercise power. I have considered all the claims made by the applicant. They do not suggest that the decision of the Tribunal did not relate to the subject matter of the legislation or that it was not reasonably capable of reference to the power given to the decision maker or that the decision contravened an inviolable limitation. It follows that the applicant's claim for relief pursuant to section 39B(1) of the Judiciary Act 1903 must be dismissed.

17. I therefore dismiss the application and order that the applicant pay the respondent's costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Barnes FM


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