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MIGRATION - Protection Visa - Privative clause decision - whether error sufficient for judicial review - no failure to refer to specific allegation - decision validated by s.474 of the Migration Act 1958 (Cth) - application dismissed.

VABQ v Minister for Immigration [2002] FMCA 209 (5 September 2002)

VABQ v Minister for Immigration [2002] FMCA 209 (5 September 2002)
Last Updated: 29 January 2003


[2002] FMCA 209

MIGRATION - Protection Visa - Privative clause decision - whether error sufficient for judicial review - no failure to refer to specific allegation - decision validated by s.474 of the Migration Act 1958 (Cth) - application dismissed.

Migration Act 1958, ss.36(2), 65(1)

NAAV v Minister for Immigration & Indigenous Affairs [2002] FCAFC 228

Waterford v Commonwealth (1987) 163 CLR 54

SBBK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 565

VDAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1071 (29 August 2002)

SDAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1022 (26 August 2002)

NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713




File No:

MZ650 of 2002

Delivered on:

5 September 2002

Delivered at:


Hearing Date:

5 September 2002

Judgment of:

McInnis FM


Counsel for the Applicant:

Mr M.S. Goldblatt

Solicitors for the Applicant:

Federal Court Pro Bono Scheme

Counsel for the Respondent:

Mr C. Horan

Solicitors for the Respondent:

Clayton Utz


(1) That the application be dismissed.

(2) That the applicant pay the respondent's costs, including reserved costs, (if any).




MZ 650 of 2002







(Revised from Transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the RRT) which was delivered on 13 February 2002.

2. The applicant in this application was born on 30 October 1980 and is a citizen of Sri Lanka of Sinhalese ethnicity. It is not in dispute he arrived in Australia on 5 November 2001 as the holder of what is described as a Class TE/cultural/social (temporary) subclass 420 (entertainment) visa (entertainment visa) which was due to expire on 30 November 2001. Soon after his arrival it is common ground that a delegate of the respondent had cancelled the entertainment visa. It is not relevant for me to consider the circumstances further in relation to that issue.

3. What is relevant, however, is that on 9 November 2001 the applicant lodged an application for a protection visa. In that application the applicant claimed a fear of persecution from people associated with the Janatha Vimukti Peramuna, (JVP) as a result of attempting to end his membership of that political party. The application of the applicant for a protection visa was considered by a delegate of the respondent and refused on 6 December 2001.

4. The RRT decision, which is the subject of the application for review in this court made on 13 February 2002 had affirmed the decision not to grant a protection visa.

5. It is appropriate for the sake of background that I recite the details set out in that decision which essentially do not appear to be in dispute in this application. I simply incorporate in this judgment the background set out in the tribunal's decision.

6. The RRT correctly refers to the relevant legislation in this particular case and specifically has referred to the provisions of the Migration Act 1958 (the Act) which the Court needs to consider. In particular, it refers to section 65(1) of the Act which provides that a visa may be granted only if the decision-maker is satisfied that the prescribed criteria for the visa have been satisfied and then refers to subsection 36(2) which provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. "Refugees Convention" and "Refugees Protocol" being defined to mean the 1951 convention relating to the status of refugees and the 1967 protocol relating to the status of refugees respectively [see section 5(1) of the Act].

7. Reference is made by the RRT to the further criteria for the grant of protection (Class XA), visa subclasses 785 and 866 which are set out in Part 785 and 866 of Schedule 2 to the Migration Regulations 1994 respectively. It is also noted that Australia is a party to the Refugees Convention and the Refugees Protocol and subject to certain qualifications not relevant to this matter, according to the tribunal, has protection obligations to people who are refugees as defined in them.

8. The RRT goes on to refer to definitions of "refugee". I mention at the outset these matters by way of background simply because it completes the picture of the application that is currently before the court, but no real issue is taken as to whether or not the tribunal misstated those relevant provisions nor indeed is there any issue taken as to the basic background information.

9. The court has been greatly assisted by submissions made for and on behalf of both the applicant and the respondent. Mr Goldblatt, it should be indicated, is acting pro bono for and on behalf of the applicant and essentially, in referring to the applicant's claim in this matter has sought to rely, as I understand it, on certain grounds which he has chosen to emphasise in this application. For convenience, it is noteworthy that the applicant and the respondent have filed facts in contention upon which each side relies.

10. The applicant's contentions of fact and law filed 7 August 2002 are the subject of a response from the respondent by way of contentions of fact and law filed 14 August 2002. During the course of his submissions counsel for the applicant relied upon and referred to the respondent's contentions of fact and law to indicate those areas which are now currently being pursued. For convenience, I will do likewise.

11. In the respondent's contentions of fact and law ground 1 that is addressed of the applicant is the failure to determine the claim. Ground 2 is jurisdictional error. It is those two grounds which are now pursued actively on this application. Grounds 3 and 4, which related to the issues of natural justice and bona fides, are now not pursued.

12. In the pursuit of ground 1, the failure to determine claims, it seems clear to me that the main thrust of the applicant's case is that the tribunal failed to address at all the applicant's claim to fear persecution from what are described as `underworld gangs' associated with JVP, as opposed to what might be regarded as the `upper level' of officials of that party.

13. In particular, counsel for the applicant took me to page 110 of the court book where the tribunal does recite a specific allegation and material relied upon by the applicant. In that paragraph the tribunal states:

The applicant stated, on the other hand, the JVP would not let him leave. He stated that he stopped being involved with them in August 2000. His uncle was in the Peoples Alliance and told him to stop his involvement with the JVP. However, some people visited his home. They did this as they felt something was wrong and he was no longer involved. He stated that the JVP has underworld gangs. He had to hide in the house of relatives. One relative lives in Matara. However, he had to be in his home area to study and so he also stayed with relatives nearby.

14. As I understand the submissions made for and on behalf of the applicant, it is contended that the tribunal in making its findings and indeed in drawing conclusions under the heading `Findings and Reasons' focused on the difficulties in relation to the JVP party and in particular had regard to the status of that party rather than considering what is submitted to be the real basis of the applicant's claim to fear persecution; namely, a claim arising from the threat and fear of being dealt with adversely and indeed persecuted by what are described as local groups or what has been referred to in the passage I have just recited as `underworld gangs'.

15. For the sake of completeness, it should also be noted that in the material that was before the tribunal there is clear reference to what might properly be characterised as activities at a local level. For example, at page 92 of the court book I note that there is a reference to threats being made and of unidentified persons making threats and telephone calls, one of those persons being referred to as a district leader of the armed unit but no name mentioned. Further reference is found in the material at page 94 of the court book which is purporting to be an extract from the information book of the Panajura police station where reference is made to the following:

"Of late on several occasions in the night a group of unidentified persons with their beards grown wearing red shirts and caps came to our house and threatened us to forcibly take away my son ...to engage him in the political activities of their organisation. I observe that their motive is to engage him in nefarious activities like putting up posters and drawing such poster to collect funds for their organisation.

16. In the RRT's findings and reasons it is important, in my view, to note the following where the tribunal does analyse the current status of the JVP at page 115 of the court book:

"It's apparent to the tribunal that the JVP have returned to something of a force in Sri Lankan politics, but this time as a legitimate political party. The Tribunal does not accept the proposition that a political party such as the JVP trying to build up its political influence would be interested in forcing a twenty-one year-old man to be part of them. The Tribunal also does not accept the proposition that the applicant would have secrets that they are afraid that he will reveal. The days of the JVP being a clandestine terrorist organisation appear to be over. If they are serious, as it appears from the recent election results of having a future in mainstream politics in Sri Lanka, the idea that the applicant after a short acquittance with the party would have learned secrets that he must be prevented from revealing is far-fetched. In any event, the Tribunal notes that the applicant has not indicated exactly what he learned that the party would be afraid he would reveal.

The applicant has obtained via his father in Sri Lanka but after the primary decision a number of documents that appear to indicate the applicant is being sought by the JVP."

17. I should interpolate here that those documents referred to by the RRT are in part, the documents to which I have already referred, or at least the extracts to which I have already referred in the material. There are others referred to in the court book. The tribunal goes on to say:

"However, the Tribunal does not accept that the applicant's father really complained to the police in the manner claimed. The purported extracts from the police appear to recount the applicant's claims. As stated above, the applicant's claim that he was being forced to participate in the JVP is far-fetched. When the complaint to the police which repeats the applicant's claim is looked at closely it also appears to the Tribunal to be far-fetched. The Tribunal does not accept the applicant or his father would complain to the police that the applicant is being harassed to force him to engage in political activities for a party. In the Tribunal's view the party would simply go and find a willing supporter to do this work. The Tribunal considers that the purported extracts from the police have been contrived to further the applicant's claim for the refugee status."

18. The tribunal goes on to state, given these findings that the applicant's claims that he had to live at relatives to avoid harassment to be also far-fetched. It states:

"... The Tribunal considers that the applicant remained at his parents' place where he was when he completed his exams for his A-levels shortly before his departure to Australia.

The Tribunal considers it apparent in this case that the applicant paid money to an agent to come to Australia in the belief that he would gain entry to the country and be able to work here. It's apparent from his evidence that he was duped. It's also equally apparent to the Tribunal that the applicant as part of the Sinhalese majority in Sri Lanka and a young man just finishing school that he was not fleeing anything when he departed."

19. The Tribunal further goes on to say that it finds that the applicant does not have a political opinion or imputed political opinion that would lead him to having a real chance of persecution should he now return to Sri Lanka and then finds that the applicant does not have a well-founded fear of persecution for a convention reason.

20. I have deliberately set out in some detail the findings and reasons of the tribunal in order to gain an overview of what it was that the tribunal was deciding against the backdrop of the substantive submission made for and on behalf of the applicant that the tribunal had failed to consider the issue expressed as being an issue of a fear in response to persecution by a local group or, as I have indicated, a group which might be referred to as `underworld gang'.

21. The respondent has submitted that in an application of this kind the tribunal is able to make a decision on the facts which regardless of the law which might apply in relation to privative clauses, to which I shall refer presently, was a decision which did not in any event constitute an error of law of a kind which would vitiate the finding. Reference in this case has been a made to the material, as I have indicated. It seems to me that on the basis of the material before me that it is not appropriate in a review of this kind whether I have a broader power to determine the issue or not or whether indeed I am able to undertake a review in broader terms that might currently be regarded as appropriate since the Full Court of the Federal Court decided the case of NAAV v Minister for Immigration & Indigenous Affairs [2002] FCAFC 228 (NAAV).

22. It seems to me on a proper reading of the tribunal's findings and reasons that it has in fact embarked upon an appropriate fact-finding mission and although not specifically referring in its findings and reasons to each and every allegation set out by the applicant in his application, and although not referring to the specific terminology used and referred to in the tribunal's recitation of the facts, it has sufficiently identified the issue and made a factual decision, which in my view, was a decision open to it having regard to normal judicial review principles regardless of what might be the current legal restrictions imposed upon this court as a consequence of both the introduction of the privative clause and the subsequent interpretation of the application of that clause by the Full Court of the Federal Court.

23. Even applying conventional principles of judicial review of administrative decisions and considering those matters which are set out in decisions such as Waterford v Commonwealth (1987) 163 CLR 54, it is my view that there is no error of law in this matter which would indicate that there has been either a failure to address an issue before the tribunal or a failure to make a correct finding. Even if the tribunal were wrong in fact of course that would not of itself as a matter of law constitute an error of law.

24. For those reasons, in my view, regardless of the technicalities of the law which may apply after the decision of the Full Court in NAAV, there would not be a proper basis upon which I could validly exercise a judicial review of this application. The matter, however, does not rest there because it is appropriate, having heard the detailed and thorough submissions of both counsel for the applicant and counsel for the respondent that I should at least turn to the issue of the way in which the court should deal with this task having regard to the Full Court decision of NAAV.

25. It is submitted by the applicant that I should find that this failure to address this core issue at all - which, as I have indicated, I do not accept has occurred - but if it had occurred, it is submitted that this could constitute a jurisdictional error of a kind which would not be overcome by the application of section 474 of the Act. Reliance has been placed by the applicant on a decision of the court in SBBK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 565. Specifically, the applicant sought to rely upon that by indicating that the facts and circumstances of that case are similar to the present case or indeed that the present case goes further than that case and would legitimately entitle this court to, in a sense, overcome any purported protection to the respondent by section 474 and find there had been a jurisdictional error of a kind which would allow this application to be the subject of successful judicial review.

26. Counsel for the respondent drew my attention to a number of other cases that have been decided by both the Full Court of the Federal Court, as I have indicated, and indeed by courts since the Full Court of the Federal Court in the NAAV case. In particular, I was referred to the decision of Heerey J in the matter of VDAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1071 (29 August 2002) (VDAA). In that particular case His Honour there referred to the current state of the law. I have been invited to accept that his Honour's reference to the current state of the law is one that I should accept. In paragraph 27 Heerey J says:

"27. In any event, the judgments of majority in NAAV make it clear that `jurisdictional' or `structural' or `inviolable factors' or elements are matters which arise at the initiation or activation of the decision-making process; see per von Doussa J at [625]. Likewise Black CJ (at [37]) in relation to the Wang appeal, thought that the particular area of decision-making had to be `enlivened', and enlivened only by a notice having particular quality."

His Honour goes on to say:

"28. By contrast, the decision which the Tribunal made as to the non-satisfaction as to the applicant's answering the definition of refugee came at the end of the process. The tribunal had embarked on this task lawfully. It was empowered by the Act to do so. Section 474 has the effect that the way it went about its task is protected from judicial review."

27. I was further referred to a decision of His Honour von Doussa J in the matter of SDAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1022 (26 August 2002) (SDAV). In particular, in that case I was referred to paragraph 29 of his Honour's judgment. Perhaps it is appropriate that I should set out what his Honour said in that paragraph. His Honour states:

"29. For reasons that I gave in my judgment in NAAV at [639], I am unable to agree with the conclusion that the RRT's decision was not validated by section 474(1). In my opinion, the decision in SBBK is not consistent with the reasoning of a majority of the court in NAAV."

28. His Honour then also refers to the decision of Allsop J in the matter of NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713. Prior to that reference in paragraph 29 his Honour von Doussa J also refers at paragraph 26 to the following:

"A Full Court of this court has by a majority held in NAAV that

s 474(1) of the Act has the effect of widening the authority and powers of the RRT in such a way that the lawfulness of any decision it makes is beyond question provided the three Hickman provisos are fulfilled - so long as `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.'"

29. For my purposes, I am prepared to accept that the law has been correctly stated in NAAV by the majority and that a correct summary of that court's conclusion has been provided by both their Honours Heerey and von Doussa JJ in the cases to which I have referred.

30. I am satisfied in the present case, applying the principles of those decisions and in particular applying the principles of the majority in NAAV as described in those decisions, that in the present case the tribunal has in fact undertaken its task lawfully. It was a task that it was empowered to do and in the circumstances, even if I were minded to accept the submission of the applicant that there had somehow been an error of the kind described, I would accept the submissions on behalf of the respondent that in any event section 474 would have the effect that the particular decision in this case would be protected from judicial review.

31. But I should add, in case I am wrong in that interpretation, it is my view on the proper reading of the facts and circumstances of this case and the reasoning of this case that even if I were to accept that the reasoning in SBBK as a matter of law applies to this court, I do not accept that there is a valid analogy between the facts and circumstances of this case and the facts and circumstances of SBBK. In SBBK the error that was identified in that case was a failure to have proper regard to, and indeed even consider, whether or not the applicant could be said to be part of a group, namely women in Iran or divorced women in Iran.

32. I cannot see any analogy between the circumstances of that case and the circumstances of the present case. As I have indicated, in the present case the complaint seems to be more one of emphasis of the facts relied upon by the applicant, although not believed for the reasons I have given earlier in this judgment that cannot be sustained as a proper basis for judicial review whether or not the section 474 applies and whether or not I am entitled to pursue the reasoning in SBBK which, as I have indicated, I found I am not entitled to pursue in any event. For those reasons the appropriate order is that this application be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of McInnis FM


Date: 5 September 2002
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