FEDERAL COURT OF AUSTRALIA
NABM of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCA 335
MIGRATION – application for review of decision of Refugee Review Tribunal affirming a decision of Minister’s delegate not to grant a protection visa – whether Tribunal committed reviewable error of law in failing to consider previous determinations of the Tribunal – where applicant Ukraine citizen of Greek Catholic faith – no reviewable error disclosed
Migration Act 1958 (Cth)
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)
Migration Legislation Amendment (Procedural Fairness) Bill 2002 (Cth)
Judiciary Act 1903 (Cth)
Abebe v Commonwealth (1999) 197 CLR 510 cited
Ahamed v Minister for Immigration & Multicultural Affairs [2001] FCA 1325 cited
Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 cited
Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 cited
Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 cited
Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70 cited
Luu v Renevier (1989) 91 ALR 39 cited
Luu v Minister for Immigration & Multicultural Affairs [2001] FCA 1875 cited
Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 75 ALJR 889 cons
NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 followed
NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281 cited
NACA v Minister for Immigration & Multicultural Affairs [2002] FCA 63 cited
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 followed
R v Commonwealth Rent Controller; Ex parte National Mutual Life Association of
Australasia Ltd (1947) 75 CLR 361 cited
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 followed
Rahman v Minister for Immigration & Multicultural Affairs [2000] FCA 1277 cons
Randhawa v MILGEA (1994) 52 FCR 437 cons
Re Refugee Review Tribunal; Ex parte Aala (2001) 204 CLR 82 cons
SAAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 101 cons
SBBM v Minister for Immigration & Multicultural Affairs [2002] FCA 183 cons
SZ v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 342 followed
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 cited
Walton v Philip Ruddock, The Minister for Immigration & Multicultural Affairs [2001] FCA 1839 cons
R v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415 cited
O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 cited
NABM OF 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NO. N 1515 OF 2001
BEAUMONT J
26 MARCH 2002
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
NABM OF 2001 APPLICANT
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
APPLICANT
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
BEAUMONT J:
INTRODUCTION
1 The applicant is a citizen of the Ukraine who arrived in Australia on 14 November 1998. The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 5 October 2001. The decision of the Tribunal affirmed a decision of the Minister’s delegate, given on 26 March 1999, refusing to grant the applicant a protection visa.
2 The applicant seeks review of the decision of the Tribunal pursuant to the, now repealed, s 476 of the Migration Act 1958 (Cth) (“the Act”). The grounds of review relied upon by the applicant in her application for an order of review are threefold, that: (i) there was no evidence before the Tribunal to justify the making of the decision and thus there was an error of law pursuant to the former s 476(1)(g); (ii) there was a failure by the Tribunal to comply with the former s 430, which requires the Tribunal to set out the findings on any material questions of fact; and (iii) there was a failure to comply with the obligation to give reasons amounting to a procedural error pursuant to the former s 476(1)(a). Further, by submissions dated 27 February 2002, the applicant also seeks to rely on the former s 476(1)(e) of the Act, in that the Tribunal failed to refer to certain relevant material.
3 It is necessary to set out the findings of the Tribunal in some detail.
THE TRIBUNAL’S REASONS
4 After setting out the relevant law and explaining the meaning of the Refugees Convention (“the Convention”) as interpreted judicially, the Tribunal described the applicant’s claims and evidence as follows.
The applicant’s claims and evidence
5 The Tribunal noted that it had before it the file of the Department of Immigration and Multicultural Affairs (“the Department”), which included the applicant’s protection visa application.
6 In her Protection Visa (“PV”) application, the applicant stated in answer to the question on the form relating to what she feared might happen to her upon return to the Ukraine, that she feared she would be persecuted “due to my political opinion, involvement in anti-government demonstrations against government politico-economic policy”.
7 However, the Tribunal noted that, in a submission to the Tribunal sent by the applicant’s new adviser on 10 April 2001, the applicant claimed that she was persecuted because she was of “Greek Catholic faith”. She claimed that she had no option but to resign from her work and that she had made claims to the Public Prosecutor’s Office about the discrimination she had suffered on the basis of her religion. The applicant also claimed that on 8 March 1998 she had been raped by two policemen from the local police station (who were drunk at the time of the rape) as a payback for the fact that she had complained to the Public Prosecutor’s Office; it was noted in the written submissions to the Tribunal that the policemen told the applicant a number of times that such “Masonic Jewish sluts” should be killed on the spot. The applicant claimed that she contracted venereal disease from this rape and also that her child was being terrorised at school.
8 The applicant further claimed that in April 1998 she lodged a written complaint to the Regional Public Prosecutor’s Office in the city of Ternopil. The day after her letter had been received by the Regional Prosecutor, an officer of the local Prosecutor’s office went to see her and threatened her with physical abuse if she did not withdraw the complaint to the Regional Prosecutor’s Office. She refused to do so and in early May 1998 received a letter from the Regional Prosecutor’s Office accusing her of providing false information, stating that she was a person of loose morals and that she may be stripped of her maternal rights.
9 The applicant claimed that after two months of staying at home under terrible stress, her local doctor referred her for examination to a psychiatric hospital. The applicant believed that this doctor was a relative of the Public Prosecutor. She claims that in early July 1998 she was visited by a psychiatrist who urged her to have an examination at the regional Psychiatric Hospital. At this point she left town and went to her parents’ house. She then decided to leave the country.
10 At the hearing before the Tribunal the applicant reiterated the latter claims. She stated that the treatment she had received at the hands of the authorities was inflicted on her because she had expressed her opinion against abuses of human rights and that she felt that discrimination on the basis of religion is an infringement of human rights.
11 The Tribunal noted that at the hearing it had explored with the applicant the reason why there had been a change in the nature of her claims, and why, in addition to having completely different claims there were significant omissions in the data about herself, such as the fact that she was an economist. The reasons for these discrepancies were further explored in writing with the applicant.
12 The submissions of the applicant’s adviser before the Tribunal in relation to the discrepancies were summarised by the Tribunal as follows:
(i) It was not the applicant but the original migration agent who prepared the application.
(ii) The interpreter engaged by the agent was unqualified and did not speak either Ukrainian or Russian.
(iii) The agent failed to provide the Department with information as to the applicant’s tertiary qualifications, the fact that she had a child, that she changed her address in the Ukraine and what her nationality or religion were.
FINDINGS AND REASONS OF THE TRIBUNAL
13 The Tribunal found that the applicant was a 32 year old female citizen of the Ukraine, who travelled to Australia with a valid Ukrainian passport issued in her own name on 21 July 1997 and an Australian Business Visa issued in Moscow on 9 October 1998.
14 The Tribunal examined the issues surrounding the presentation of the claims on behalf of the applicant on the two occasions on which they were put forward, both before the delegate’s decision and after that decision.
15 The Tribunal indicated that it had a number of concerns with the interpretation of the facts which placed the responsibility for the incorrect claims being presented to the Department solely with the applicant’s initial adviser. It specifically noted that the applicant had signed the application forms and did not sign her statement (which was given to the Tribunal on 10 April 2001) until 15 March 1999. The Tribunal noted that this was more than one month after the PV application was made. Despite this, no attempt was made to provide either the Department or the Tribunal with that statement, not even after the delegate’s decision had been published. That statement was only provided after the Tribunal set a hearing date.
16 The Tribunal stated (at 6) that:
“It is not plausible to the Tribunal that an adviser would omit harm suffered, of the severity now claimed by the applicant, from a PV application if that claim had been made. The interpreter has been blamed for the lack of communication in this instance. If the communication had been impossible as implied, because the interpreter did not speak the language of the applicant, then how could any details at all have been recorded.”
17 Despite these misgivings, however, the Tribunal noted that it was prepared to give the applicant the benefit of the doubt and accept that her valid claims were those which she presented to it a few days before the hearing and not those contained in her PV application.
18 The Tribunal dealt with the claims of the applicant under two separate headings: “Persecution for reason of religion” and “Relocation”.
Persecution for reason of religion
19 The Tribunal noted the applicant’s claim that she had been forced to leave her employment because of her Greek Catholic faith. The Tribunal also noted her claim that she was raped because she complained against her treatment and was pursued to the point where she thought she would be forcibly committed to a psychiatric institution.
20 The Tribunal further noted that from the time the applicant graduated as an economist in Ternopil in 1996 until 1998, she worked in Monastyriska, a town of approximately 7000 people.
21 The Tribunal went on to set out in some detail independent information on religion in the Ukraine, provided from two separate sources: the United Kingdom, Ukraine Country Assessment from the Country Information and Policy Unit (April 2001) and the 2000 Annual Report on International Religious Freedom: Ukraine from the Bureau of Democracy, Human Rights, and Labor U.S. Department of State (September 2000).It is helpful to set out some of the material from those sources, quoted by the Tribunal in its reasons.
22 The Tribunal quoted the following passage from the United Kingdom, Ukraine Country Assessment:
“C. Religion
5.12 The Constitution and the 1991 Law on freedom of Conscience and Religion provide for separation of church and state and the right to practice the religion of one’s choice. With the exception of some non-native religions, the government generally respects these rights in practice. The government generally permits religious organisations to establish places of worship and to train clergy, and has continued to expedite allotment of land plots for construction of new places of worship and to return religious buildings and sites to their former owners. …
Christianity
5.13 The predominant religion in Ukraine is Christianity. Adherents are fragmented between the Ukrainian Orthodox Church (Moscow Patriarchate), the Ukrainian Orthodox Church (Kievan Patriarchate), the Ukrainian Autocephalous Orthodox Church, and the Roman Catholic Church (also known as Ukrainian Catholic, ‘Greek’ Catholic or Uniate, who follow the Eastern rite). At the first All-Ukrainian Christian Congress, held in September 1999, President Kuchma stated that during eight years of independence, the Ukrainian government had created an “atmosphere of trust, respect, mutual understanding and co-operation” in its relations with the Church, which had a positive impact on religious and church life in Ukraine.
…
5.15 Most Roman Catholics in Ukraine are adherents of the Byzantine or Eastern rite, the so-called Uniate (‘Greek’ Catholic) Church, which is based principally in western Ukraine and Transcarpathia. The Ukrainian Catholic (Uniate) Church was established in 1596 by the Union of Brest, which permitted Orthodox clergymen to retain the Eastern rite, while transferring their allegiance to the Pope. In 1946, at the Synod of Lvov (Lviv Sobor), the Uniates were forcibly integrated into the Russian Orthodox Church, but continued to function in an ‘underground’ capacity. As a result, they suffered fierce persecution, with the arrests of many activists, but experienced a strong revival in the 1980s. Together with the UAOC, the Uniate Church was a prominent campaigner for official recognition in 1989, when it was finally granted legalisation. In June 1992, there were 2,700 Uniate churches in Ukraine and 452 Roman Catholic churches of the Latin rite. At 31 December 1997, there were estimated 5,332,267 adherents. Adherents of Latin rite Catholicism in Ukraine are predominantly ethnic Poles.”
23 The Tribunal then went on to quote from the 2000 Annual Report on International Religious Freedom: Ukraine:
“Improvements in Respect for Religious Freedom
Overall, respect for religious freedom improved somewhat during the period covered by this report. Although problems remained regarding the Government’s protection of religious freedom for ‘nontraditional’ religious organisations (defined as all organisations other than Orthodox, Greek Catholic, and Jewish), which faced some difficulty in carrying out their activities, they reported less difficulty in obtaining visas and registering during the period covered by the report. Some measures to improve property restitution have been undertaken. The Government took steps to return to religious groups properties expropriated during the Soviet era.
…
The Government has been unable to stop disagreements between Orthodox believers and Greek Catholics in the western part of the country, where the two communities have contentious relations and engage in bitter disputes over church buildings and property in some 300 localities. The number of localities with disputes between the Orthodox and Greek Catholic Churches has decreased over the last few years. The Greek Catholic Church cooperates with the Roman Catholic Church and with various Jewish groups on humanitarian aid projects.
The Ukrainian Greek Catholic Church assisted Lutheran missionaries with invitations and necessary documentation to work in the country. It also provided invitations to and facilitated visits and meetings for U.S. Jewish leaders. The Ukrainian Greek Catholic Church assisted the Jewish community in Ukraine and Jewish organizations in the United States in obtaining Torah scrolls in government museums and archives restored to Jewish communities in the country. The Ukrainian Greek Catholic Church cooperated with the Lviv Jewish community on the distribution of two shipments of medical humanitarian aid from the U.S. Government. The Ukrainian Greek Catholic and Roman Catholic Churches also work together with Caritas, the international Catholic charity.”
24 The Tribunal stated that the above information indicates that “one’s religion is practiced freely in the Ukraine and that the Greek-Catholic faith is accepted as a traditional religion” (at 9).
25 The Tribunal went on to note that, despite the fact that religion is practised freely in the Ukraine, the town in which the applicant worked is a small one and that it was plausible that local authorities would feel threatened both by a complaint of religious discrimination and a further complaint to the regional level. However, the Tribunal found that the connection between the applicant’s rape and her complaint to the authorities was “tenuous at best” (at 9). In this regard, the Tribunal noted that it had before it no independent evidence to indicate that a threat to the authorities of this nature would provoke a response such as the applicant claimed. The Tribunal also noted that the policemen were drunk at the time at which they were claimed to have raped the applicant. However, the Tribunal were prepared to give the applicant the benefit of the doubt and accept that she was in fact raped.
26 The Tribunal went on to note, however, that it was not prepared to accept the claim made by the applicant that the suggestion made by her local doctor that she see a psychiatrist was evidence of a plot to commit her to an institution under false pretences. In this regard, the Tribunal noted that the applicant herself said that she was under terrible stress after the rape and that she had contracted venereal disease. In light of this, the Tribunal viewed the suggestion of the doctor as a plausible clinical response to the circumstances of the patient.
27 Having accepted that the applicant was raped, and by policemen, the Tribunal went on to find that the applicant would have a real chance of being harmed and that such harm may amount to persecution, should she return to Monastyriska, and that this risk of persecution was for reason of her religion. The Tribunal also considered whether the motivation for such harm could be subsumed under a different Convention reason, other than that of religion, and found that her stance against the authorities could be interpreted as an expression of political opinion and thus she would have come to harm because of her political opinion.
28 Having accepted that the applicant had a well founded fear of persecution for a Convention reason should she return to Monastiryska, the Tribunal turned to examine the issue of relocation within the Ukraine.
Relocation
29 After noting that the purpose of refugee status is to provide international protection in circumstances where national protection is not available, the Tribunal went on to consider the leading case in this area of Randhawa v MILGEA (1994) 52 FCR 437.
30 The Tribunal noted that the essential principle, citing Black CJ in Randhawa, is that, given the humanitarian aims of the Convention, the question to be asked is not merely whether an applicant could relocate to another area, but whether he or she could “reasonably be expected to do so” (Randhawa per Black CJ at 442). The Tribunal went on to quote the following passage from Randhawa (per Black CJ at 442):
“…a person’s fear of persecution in relation to that country [of nationality] will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person.”
31 In the present case, the Tribunal found that relocation to another part of the Ukraine by the applicant was reasonable, in the Randhawa sense, for the following reasons (at 11):
(i) The applicant did not have any particular ties with the town in question (ie Monastyriska) as her mother and daughter lived elsewhere.
(ii) The applicant is a university graduate in a discipline which has a number of applications in business and government, thus the applicant was not restricted by the nature of her qualifications to any particular location.
(iii) The applicant had previously moved to another city to undertake her university studies.
32 The Tribunal considered that the harm to which the applicant came was a consequence of her living in a small town. The Tribunal found that (at 11) –
“[e]lsewhere in the Ukraine, where the applicant is not known, she does not face any real chance of persecution for reasons of her religion; the Tribunal has already indicated, and the independent information supports, that the members of the Greek Catholic faith do not face a real chance of persecution in the Ukraine.”
33 As a result, the Tribunal found that the applicant could reasonably relocate to another part of the Ukraine. In consequence, it found that her fear of persecution should she return to the Ukraine was not well founded. As such, having considered the evidence as a whole, the Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Convention and therefore the applicant did not satisfy the criterion set out in s 36(2) of the Act for a protection visa.
grounds of the application for judicial review
34 By her application for an order of review dated 12 November 2001, the applicant applies for judicial review of the decision of the Tribunal. As noted above, there are three grounds relied upon in the application.
35 The first ground is that there was no evidence or other material to justify the making of the decision and thus there was an error of law pursuant to the former s 476(1)(g). The second ground is that there was a failure to comply with the former s 430 of the Act, which requires the Tribunal to prepare a written statement which sets out the findings on any material questions of fact and refers to the evidence or any other material on which the findings of fact were based (former s 430(1)(c) and (d)). The third ground is that there was a failure to comply with the obligation to give reasons amounting to a procedural error pursuant to the former s 476(1)(a).
36 There were no other grounds relied upon in the application for an order of review. As will be seen below (at [37]), in her written submissions, the applicant also sought to rely on the former s 476(1)(e) of the Act.
argument presented by the applicant BEFORE THIS COURT
37 As noted above, before this Court, the applicant now also seeks to rely on the former s 476(1)(e) of the Act, in that the Tribunal failed to take into account, or to refer in its reasons, to certain relevant considerations to be found in material apparently not before the Tribunal at the time the decision was made. In order to understand the issues which now arise, it will be necessary to set out the submissions, dated 27 February 2002, now relied upon by the applicant, as follows:
“1. The Tribunal accepted that I have a well-founded fear of persecution for a Convention-related reason (see p. 10 of the decision).
2. The Tribunal’s negative decision was based on its finding that I would be able to relocate within the Ukraine.
3. I would like to refer to the Tribunal’s decision of 17 October 2000 (RRT File No: N99/29809). In ‘Independent evidence’ it was mentioned the following:
‘The Ukrainian Constitution provides for freedom of movement within the country, foreign travel, relocation. However, the Government has not yet fulfilled its pledge to abolish mandatory registration – the ‘propiska’ system and to replace it with an information residence register. Under the current registration system, all internal passports contain a stamp indicating residence and matrimonial status’.
‘Human rights groups reported an increasing number of cases of persons being stripped of their residence registration, evicted from their homes, and made homeless through criminal fraud or court error. Police also arbitrary [sic] detain persons for extensive documents [sic] checks and vehicle inspections (source: 1999 Country Report on Human Rights Practices)’.
The Tribunal member also stated:
‘…were the applicant to return to Ukraine, no matter where she chose to live, she would be obliged by law to register her whereabouts with the militia in order to obtain a ‘propiska’. Given the militia’s previous treatment of her, which included regular personal harassment, it is not unreasonable to expect that, upon her return and her whereabouts becoming known, such actions would not continue. The Tribunal is therefore satisfied that the applicant has a well-founded fear of persecution for reasons of a political opinion attributed to her by the militia’.
4. I would also like to refer to another Tribunal’s decision of 15 August 2001 (RRT File No: N00/32102). The Tribunal stated:
‘…that the requirement for propiska, registration of residence with the Ukraine Government, remains current in Ukraine (source – US State Department Report on Human Rights practices, 2000. Published in February 2001), which means that the applicant would be required to return to his former registered place of residence, where he would be quite well-known by the authorities, or to apply for a new propiska. Given these circumstances the Tribunal was satisfied that there was a real chance that the applicant on return would be questioned by the authorities…’
The Tribunal concludes:
‘… there is a real chance that he would be subjected again to harassment from the authorities which would again be sufficiently serious as to amount to persecution in a convention sense’.
5. In my case the Tribunal was clearly in error in stating that ‘relocation to another part of the Ukraine is reasonable’. All Tribunal’s reasons outlined in p 11 of the decision are irrelevant. It is irrelevant whether I have relatives in other part of the Ukraine; or that I am not restricted by the nature of my qualification; or that I previously moved to another city to undertake studies and etc. The relevant issue is – there is a registration system (propiska) in place in the Ukraine, which might be obtained only through militia, e.g. authority which was the main threat to my safety.
6. The Tribunal failed to refer in any detail to the material mentioned above. Therefore, the decision of the Tribunal involved an error of law contrary to s 476(1)(e) of the Act, in that it failed to provide a written statement of its decision and reasons, setting out its findings on material questions of fact and referring to the evidence or any other material on which those findings were based, contrary to s 430.”
recent AMENDMENTS TO THE MIGRATION ACT
38 It will be recalled that the decision of the Tribunal was made on 5 October 2001. On 2 October 2001, the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) came into force and made substantial amendments to the Act. On that date, the previous Part 8, dealing with review of decisions of the Immigration Review Tribunal and the Refugee Review Tribunal by the Federal Court, was repealed and replaced.
39 Amendments made, as part of this process, included the repeal of the old s 476, which provided specified grounds of review for decisions of the Tribunal by the Federal Court. The amendments also created a new regime, whereby any application for review of a decision of the Tribunal (to the extent that such application is still permissible) must be brought under s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”).
40 The amendments to the Act also included the insertion of a new s 474, which provides that certain “privative clause decisions” are not reviewable decisions under the Act. The amendments apply to applications for judicial review of decisions under the Act made on or after 2 October 2001, and decisions made before that date if an application for review of the decision had not been lodged prior to that date: Schedule 1, Item 8 of the amending Act.
41 The decision of the Tribunal was made after the amendments to the Act inserting the new privative clause came into force, and no application for review under s 39B of the Judiciary Act has been made by the applicant, rather, the applicant seeks to rely on the now repealed s 476. In the circumstances, it will be convenient to deal first with the jurisdictional basis for the appeal to this Court and the impact of s 474, before going on to consider whether there would have been an error of law under the previous provisions of the Act. (As the applicant is a litigant in person, and could not be expected to realise that there had been substantial amendments to the law, and as the matter raises an important issue in relation to the extent of the obligation on the Tribunal to consider its previous decisions in relation to each case, I propose later to deal specifically with the question of whether there would have been an error of law under the previous provisions of the Act.)
operation of section 474
42 Section 474(1) of the Act provides:
“(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”
43 A “privative clause decision” is defined in s 474(2):
(2) In this section:
privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)”.
44 The decision of the Tribunal currently under review in this case falls within the definition in s 474(2) and is not excluded by subsections (4) or (5).
45 As noted above, the applicant purports to rely on the grounds of review available under the former s 476. She did not address the impact of the amendments to the Act nor the effect of the privative clause in her submissions.
46 As may be expected, counsel for the respondent lodged a notice of objection to competency of the appeal and also made extensive submissions in relation to the operation of the new s 474. It is worth setting out these submissions in some detail. Firstly, the respondent dealt with the issue of the competency of the application for review in these terms:
“3. The grounds of review relied upon by the applicant are no longer available. Part 8 of the Act, including old s 476, was repealed and replaced on 2 October 2001, by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).Accordingly, the Respondent has filed a notice of objection to the competency of the appeal.
…
14. The Court has jurisdiction pursuant to s39B of the Judiciary Act, and no jurisdiction is provided for by any other statute: see ss 475A, 477.”
47 It would, perhaps be possible to dispose of the matter entirely on this basis. In two recent decisions of this Court, it has been held that where an application for judicial review under the Act is not brought under s 39B of the Judiciary Act, or where such application is outside the prescribed 28 day time period for bringing such application, this Court does not have jurisdiction to hear the matter (NACA v Minister for Immigration & Multicultural Affairs [2002] FCA 63; and SBBM v Minister for Immigration & Multicultural Affairs [2002] FCA 183). However, as noted above, given the fact that the applicant is a litigant in person and that the matter raises a significant issue of law, I propose to deal in substance with that issue.
48 Despite the literal breadth of the wording of s 474, the respondent acknowledges that the provision cannot operate fully according to those terms. In its written submissions the respondent discusses the effect of the privative clause on the current proceedings in the following terms:
“Privative Clause Decision
13. The decision of the Tribunal is subject to the regime in Part 8 of the Act enacted by the Migration Legislation Amendment (Judicial Review) Act 2001, which commenced on 2 October 2001.
14. The Court has jurisdiction pursuant to s39B of the Judiciary Act, and no jurisdiction is provided for by any other statute: see ss 475A, 477.
15. The Tribunal’s decision is a privative clause decision within the meaning of s474(2) of the Act. The effect is that s474(1) provides that the decision is final and conclusive, cannot be challenged or reviewed or called in question in any court and is not subject to prohibition mandamus, injunction, declaration or certiorari in any court on any account.
16. Despite the literal breadth of this provision and its formulation as a clause ousting the jurisdiction of the courts, review may nevertheless take place, albeit in limited circumstances. The scope of such review is limited by the principles enunciated by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616:
‘It is, of course, quite impossible for the Parliament to give power to any judicial or other authority which goes beyond the subject matter of the legislative power conferred by the Constitution. […] It is equally impossible for the legislature to impose limits upon the quasi-judicial authority of a body which it sets up with the intention that any excess of that authority means invalidity, and yet, at the same time, to deprive this court of authority to restrain the invalid action of the court or body by prohibition. But where the legislature confers authority subject to limitations, and at the same time enacts a [privative clause], it becomes a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells an invalidity. In my opinion, the application of these principles [in this case] means that any decision given by a Local Reference Board which upon its face appears to be within power and is in fact a bona fide attempt to act in the course of its authority, shall not be regarded as invalid.’
17. In R v Murray; Ex parte Proctor (1949) 77 CLR 387, at 399-400, Dixon J elaborated on the principles relevant to a privative clause in the following terms:
‘We are familiar with the distinction between provisions that are directory and those that are mandatory. The distinction supplies an analogy which may help to explain the effect of [the relevant privative clause]. For construed in the traditional manner it must be taken to mean that strict compliance with at least some of the provisions [regulating the conduct of the relevant Board] is not an indispensable condition to the jurisdiction of the Board and to its authority to make a valid and binding award, order or determination. There is necessarily an appearance of inconsistency between a provision which defines and restricts the power of a tribunal and prescribes the course it must pursue and a provision which says that the validity of its decrees shall not be challenged or called in question on any account whatsoever.
The apparent inconsistency should be resolved by an attempt to arrive at the true intention of the legislative document containing the two provisions considered as a whole. The first step in such a process of interpretation is to apply to [the privative clause] the traditional or established interpretation which makes the protection it purports to afford inapplicable unless there has been an honest attempt to deal with a subject matter confided to the tribunal and to act in pursuance of the powers of the tribunal in relation to something that might reasonably be regarded as falling within its province. There is nothing artificial in such an interpretation. For it could hardly be supposed, to take perhaps an extreme example, that it was intended that [the relevant privative clause] should give validity and protection to the awards of a tribunal established in relation to one industry when the tribunal intentionally stepped outside its allotted industrial field and proceeded to regulate an entirely different industry. A second step in interpreting the whole legislative instrument must be to consider whether particular limitations on power and specific requirements as to the manner in which the Tribunal shall be constituted or shall exercise its power are so expressed that they may be taken to mean that observance of the limitations and compliance with the requirements are essential to valid action. For a clearly expressed specific intention of this kind can hardly give way to the general intention indicated by [a privative clause]’.
18. For the Applicant to successfully impugn the Tribunal’s decision, she must therefore establish one of three conditions. The first, which is clearly not satisfied in the present case, is that the constitutional authority of the Parliament to define the powers of the decision-maker has been overstepped. Alternatively, it must be shown that the exercise of power was unrelated to the subject matter of the legislation. That condition is also clearly not satisfied in this case: the Tribunal was dealing with a review of a decision of a delegate refusing to grant a protection visa. That is clearly related, indeed, integral to the relevant subject matter of the legislation. The third alternative is to show that the decision made was, on its face, beyond power or was not a bona fide attempt to act in the course of the delegate’s authority. There is no basis for such a proposition to be put.
19. The ‘second step’ enunciated by Dixon J in Ex parte Proctor raises an issue of validity. It reflects the terminology often associated with the establishment of ‘jurisdictional error’ on the part of a tribunal (see for example, Re Minister for Immigration & Ethnic Affairs; Ex parte Durairajasingham (2000)74 ALJR 405, McHugh J at [29]-[31]; City of Enfield v Development Assessment Commission (2000) 199 CLR 135, Gleeson CJ, Gummow, Kirby and Hayne JJ at [20]; and Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34, Kirby J at [10]). In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348, Gleeson CJ, Gaudron and Hayne JJ stated, at [31]:
‘There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council, it ‘misunder[stood] the nature of [its] jurisdiction […] or misconceive[d] its duty’ or ‘[failed] to apply itself to the question which [s45 of the Act] prescribes’ […] or ‘[misunderstood] the nature of the opinion which it [was] to form’ ’. (footnotes omitted)
20. It is, however, misleading to simply adopt statements in relation to jurisdictional error made in the context of applications for constitutional writs or prerogative relief absent any privative clause. The description of an exercise of power as involving jurisdictional error means merely that it is beyond power. In dealing with the effect of a privative clause, the question is much narrower, namely whether, despite the general terms of the privative clause, compliance with the obligation in question must have been intended to be an essential precondition to the exercise of power. In the present case, no failure of compliance with any essential requirement has been identified.
21. …
22. It is submitted that if the Hickman principles are applied to the facts of this case, there is no basis for intervention by the Court.”
49 Two significant issues arise in relation to the interpretation of s 474, as they have arisen in relation to similar privative clauses. First, an issue arises as to whether the provision is effective to withdraw from review a decision made by the Tribunal in breach of a statutory provision. Secondly, an issue arises as to whether the provision operates to exclude from review decisions made by the Tribunal in breach of the rules of natural justice.
50 In relation to the first issue, two recent decisions of this Court have dealt extensively with the application of the Hickman principle in the context of s 474: NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 at [13]-[37]; and Walton v Philip Ruddock, The Minister for Immigration & Multicultural Affairs [2001] FCA 1839 at [20]-[33]. I do not propose to conduct a similar analysis here, except to say that I respectfully agree with principles enunciated in each of these decisions. In relation to the question of whether there is any inconsistency between s 474 and the other provisions of the amended Part 8 of the Act, the manner in which these provisions operate has been dealt with by Merkel J in Walton and also by Mansfield J in SAAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 101; it is not necessary for me to elaborate on these questions.
51 In relation to the second issue, as to whether s 474 operates to exclude review even in the case of a breach of natural justice by the Tribunal, Gyles J dealt extensively with this question in NAAX.
52 (I should note at this juncture that the decision of Gyles J in NAAX also deals extensively with the question of the constitutional validity of s 474. These arguments have not been raised before me and I do not propose to deal with them here, except to say that I agree, with respect, with the reasons of Gyles J in NAAX on this question.)
53 In NAAX the applicants, NAAX and her husband NAAV, were Burmese nationals who applied for protection visas on the basis of persecution on the grounds of political opinion. Although the Tribunal accepted some of the claims of the applicants, it did not accept the essence of the claim of each to have been a political activist who had suffered persecution on this basis. In coming to its decision and forming an unfavourable opinion adverse to the credibility of the applicants, the Tribunal took into account certain information: information relating to the situation in Burma gathered from sources other than the applicants (“country information”); a particular map of the region; and the military experience of the Tribunal member. None of this information was disclosed to the applicants or their migration agent.
54 In NAAX, the applicants argued that the use by the Tribunal of undisclosed material in a manner which was adverse to them was a breach of the rules of natural justice in that procedural fairness was not afforded, a result said to follow from the High Court decision in Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 75 ALJR 889. The applicants argued that a breach of natural justice of this nature constituted a jurisdictional error, relying on the High Court decision in Re Refugee Review Tribunal; Ex parte Aala (2001) 204 CLR 82, and that relief pursuant to s 39B of the Judiciary Act should follow. In addition, it was argued that the privative clause does not prevent this relief, because jurisdictional error of this kind is within the exceptions to the operation of such a clause; and, it was said, in any event, s 474 is invalid, as conferring judicial power upon the Tribunal contrary to Chapter III of the Constitution, or as inconsistent with s 75 of the Constitution (if the clause is construed so as to exclude relief where there has been a breach of natural justice).
55 In NAAX, the Solicitor-General appeared for the respondent and made extensive submissions as to the purpose and effect of the new s 474. It is worth quoting in some detail from the decision of Gyles J as to the submissions made by the Solicitor-General in this matter (at [17] – [18]):
‘The Solicitor General submits that s 474(1) is in substantially similar form to the privative clause considered in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598, where, in an oft-quoted passage, Dixon J, at 615, said:
‘The particular regulation is expressed in a manner that has grown familiar. Both under Commonwealth law, and in jurisdictions where there is a unitary constitution, the interpretation of provisions of the general nature of [the privative clause] is well established. They are not interpreted as meaning to set at large the courts or other juridical bodies to whose decision they relate. 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.’ (emphasis added)
It is submitted that Dixon J succinctly identified three pre-conditions to the valid exercise of decision-making powers to which such a clause applies:
‘(a) the decision-maker is required to have made a ‘bona fide attempt to exercise its power’;
(b) the decision ‘relates to the subject matter of the legislation’; and
(c) the decision ‘is reasonably capable of reference to the power given to’ the decision-maker.’
These three conditions, the Hickman conditions, Hickman grounds of review or Hickman grounds of exclusion have been restated on many occasions in the High Court: eg, R v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415; O’Toole v Charles David Pty Ltd (1991) 171 CLR 232; Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168; and Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602.”
56 In NAAX, Gyles J specifically considered the question of whether the Hickman conditions or grounds of review are exclusive categories. In particular, he considered the question of whether a breach of the requirements of natural justice goes to jurisdiction in the sense of founding the prerogative writs, and may therefore provide another potential basis for review under the Hickman conditions.
57 After citing an extensive passage of obiter dicta from Spigelman CJ in Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 at [141] – [163], in which Spigelman CJ indicated that the categories of Hickman conditions may not be closed, Gyles J stated (at [30]):
“…To conclude that prohibition will go in all cases of jurisdictional error of the type identified in Craig v South Australia (1995) 184 CLR 163 particularly at 179 and all cases of breach of the rules of natural justice would be to ignore the clear distinction drawn in Hickman and render s 474 and like privative clauses virtually devoid of content (see Zines, Constitutional Aspects of Judicial Review of Administrative Action, (1998) 1 Constitutional Law and Policy Review 50 at footnote 41). It should be recalled that in Hickman Dixon J (at 615) expressly referred with approval to a passage precisely in point from the judgment of Starke J in Australian Coal & Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161 at 182:
‘In my opinion, reg 17 [the privative clause] excludes any appeal whatever from any award or order of the Conciliation Commissioner in relation to industrial disputes referred to him under s 16 of the Industrial Peace Regulations. Effect can only be given to reg 17 by treating the words, award, order or determination, as meaning acts in fact done by the tribunal in the supposed exercise of the powers entrusted to it. To confine the meaning of those words to acts done lawfully and within the jurisdiction of the tribunal ignores the clear, distinct and unmistakable intent of the regulation. Prohibition at common law was the appropriate remedy for restraining inferior Courts from exceeding their jurisdiction, and yet this remedy is withdrawn by the regulation: See Baxter’s Case; Morgan v Ryland Bros (Australia) Ltd; Clancy v Butchers’ Shop Employees Union; Colonial Bank of Australasia v Willan.’”
58 In NAAX, Gyles J went on to point out (at [32]) that the argument that Hickman is a rule of statutory construction does nothing to assist an applicant under the Act, where there is no express provision of the Act which is inconsistent with s 474(1). He quoted, with approval (at [33]), from the decision of Latham CJ and Dixon J in R v Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Ltd (1947) 75 CLR 361 (at 369) as follows:
“When Commonwealth legislation confers powers upon an officer a provision such as reg 38 cannot be construed as intended to provide that his powers are absolutely unlimited. Such a construction would raise questions of the validity of the legislation. Such a provision cannot help to give effect to any legislation which it is beyond the power of the Commonwealth Parliament to enact. Further, even where no question of validity arises, the effect of such a provision in a particular case depends upon the construction of the relevant statute taken as a whole. If a legislature gives certain powers and certain powers only to an authority which it creates, a provision taking away prohibition cannot reasonably be construed to mean that the authority is intended to have unlimited powers in respect of all persons, and in respect of all subject matters, and without observance of any conditions which the legislature has attached to the exercise of the powers. Such a provision will operate to prevent prohibition going in cases of procedural deficiencies where the authority whose powers are in question is in substance dealing with the matter in respect of which the power is conferred upon it. But if, upon the construction of the legislation as a whole, it appears that the powers conferred upon the authority are exercisable in certain cases, and definitely that they are not exercisable in other cases, and that any attempt to exercise them was intended to be ineffective, then a provision taking away prohibition will not exclude the jurisdiction of this Court under s 75(v) of the Constitution in a case of the latter description: see R v Hickman; Ex parte Fox.” (Emphasis added by Gyles J)
59 After quoting this passage with approval, Gyles J continued (at [34] – [36]):
“Indeed, this analysis supplies the correct approach in the present case. It should be clear that I am considering only that kind of procedural fairness (or lack thereof) which may be involved in the use of the kind of information in question here by the Tribunal. I am not intending to answer an abstract question as to whether a privative clause can exclude natural justice. The Act must be construed as it now stands, including s 474 and including the express prescriptive provisions governing the procedure of the Tribunal in Div 3, Div 4 and Div 5 of Pt 7. In the case of a breach of any of those express provisions, a question of statutory construction would arise as to reconciliation of that provision with s 474.…
… In my opinion, s 474 operates according to its terms, which are inconsistent with the existence of implied duty to afford procedural fairness by supplying information going beyond the requirements of Div 4 of Pt 7 of the Act, no matter upon which theory any such implication would be drawn. This conclusion is reinforced by the passages from the Explanatory Memorandum and Second Reading Speech to which I have referred. In my opinion, it is not legitimate to construe the Act on the basis that s 474 did not exist, particularly in relation to a version of the Act which had radically different judicial review provisions, conclude that a duty to afford natural justice existed and then ask whether s 474 takes away the corresponding right.
The course of High Court decisions has established the Hickman exceptions as authoritative and exhaustive. The principles have been referred to very recently by Gaudron and Gummow JJ in Minister for Immigration & Multicultural Affairs v Bhardwaj [[2002] HCA 11] at [47], with whose reasons in this respect McHugh J agreed, and by Gaudron J in Miah at [102]. Even if teased out in the manner favoured by the authors of Aronson & Dyer, Judicial Review of Administrative Action, 2nd Ed, at p 691, the exceptions do not include breach of an implied duty to accord procedural fairness of the type that is alleged here. The remark by Dawson J in O’Toole most naturally relates to bias, as at least some, and perhaps all, examples of bias would negate the bona fides of the decision and so fall within the first Hickman exception.”
60 In my view, the decision of Gyles J in NAAX is correct. There is no scope for reading into the provisions of Part 7 of the Act as it now stands an implied duty of procedural fairness, breach of which can provide a basis for review on the grounds of jurisdictional error.
61 If there were any doubt on the issue of the intention of Parliament in this regard, reference may be made to the terms of the Migration Legislation Amendment (Procedural Fairness) Bill 2002 (Cth) (the “Procedural Fairness Bill”), currently before Parliament and its Explanatory Memorandum (cf. Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70 on the use of a subsequent amending Act as an aid to statutory interpretation).
62 The Procedural Fairness Bill will amend the Act to specifically state that the provisions of the Act constitute a code with respect to the procedural requirements under the Act and that the common law requirements of the natural justice hearing rule do not apply to decisions in relation to visa applications made under the Act. The Explanatory Memorandum to the Procedural Fairness Bill states that:
“1. The Migration Legislation Amendment (Procedural Fairness) Bill 2002 (the Bill) amends the Migration Act 1958 (the Act) to provide a clear legislative statement that specified codes of procedure in the Act are an exhaustive statement of the requirements of the natural justice hearing rule.
2. The codes of procedure, introduced by the Migration Reform Act 1992, were intended to enable decision-makers and tribunals to deal with visa applications, visa cancellations and applications for merits review fairly, efficiently and quickly. It was also intended that these codes would eliminate the legal uncertainties that flow from the non-codified common law principles of natural justice while retaining fair, efficient and legally certain decision-making procedures.
3. In Re MIMA; Ex parte Miah [2001] HCA 22 the High Court held, by a narrow majority, that the code of procedure for dealing fairly, efficiently and quickly with visa applications in Subdivision AB of Division 3 of Part 2 of the Act did not exclude common law natural justice requirements. The majority considered that such exclusion would require a clear legislative intention and that there was no such clear intention in the Act.
4. The purpose of this Bill is to provide a clear legislative statement that the codes of procedure identified in the Bill are an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. The amendments in the Bill apply to the codes of procedure in the Act relating to:
visa applications;
visa cancellations under sections 109, 116 or 128 of the Act;
the revocation of certain visa cancellations; and
the review of decisions by the Migration Review Tribunal (the MRT) and the Refugee Review Tribunal (the RRT).
5. The Bill also clarifies the relationship between the amendments relating to the codes of procedure and section 474 of the Act. Section 474 contains the privative clause which has the practical effect of expanding the legal validity of the acts done and decisions made by decision-makers. It is intended that section 474 will be interpreted in accordance with R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598, such that the only reviewable legal errors are those that are set out in that case.
6. It is also intended that the privative clause should protect from invalidity anything done or omitted to be done in relation to any matter dealt with in any provision taken to be an exhaustive statement of the natural justice hearing rule. That is, there is nothing within this Bill that expands in any way the grounds of review under the privative clause. Any error must still fall within the Hickman grounds in order for it to lead to invalidity.
7. This Bill provides a clear legislative statement that the amendments relating to the codes of procedure do not limit the scope or operation of the privative clause in relation to anything done, or omitted to be done, in relation to any matter dealt with in any provision that is taken to be an exhaustive statement of the requirements of the natural justice hearing rule by a section that is inserted into the Act by this Bill.”
63 Although the applicant in this case did not formulate her argument specifically in terms of procedural fairness, it may be possible to see her submissions as putting to the Court an argument that the Tribunal should not only have taken into consideration its previous decisions relating to the effect of the ‘propiska’ system of registration in the Ukraine, but also given her an opportunity to respond to any adverse finding the Tribunal was to make in relation to the question of relocation within the Ukraine. Such an obligation would be clearly unworkable and does not come close to the obligations placed on the Tribunal under the provisions of Part 7 of the Act.
64 As was pointed out by Gyles J in NAAX, the objectives of the Act were to provide a mechanism of merits review that is fair, just, economical, informal and quick (s 420). The role of the Tribunal member is something akin to an expert. There is no adversarial proceeding, but an opportunity for the applicant to present his or her case and persuade the Tribunal that the rights sought by the applicant should be granted.
65 It will be recalled that in NAAX, the applicants argued that if the Tribunal member had put the adverse “country information” to them and granted them an opportunity to respond, they would have been able to provide other information which contradicted the adverse material. In response to this argument, Gyles J stated (at [52]):
“…there are difficulties both in principle and in practice in having the duty to afford natural justice descend to such a level of detail in this statutory context. The difficulty in principle is that an applicant for protection does not have any case to meet. The Tribunal is not a contradictor. There is no adversary proceeding. See, generally, Mason J in Kioa v West (1985) 159 CLR 550 at 587 in a passage cited below; Miah per Gleeson CJ and Hayne J at [31] and [32]; Aala per Gaudron and Gummow JJ at [76]; Abebe per Callinan J at [293]-[295]; Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [142]; and Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 282. Each applicant had to satisfy the Tribunal that his or her fear of persecution upon return to Burma is genuine and for a Convention reason. Leaving aside matters personal to the individual, and concentrating upon matters pertaining to the circumstances in Burma, the applicant should have the opportunity of presenting all it wishes, both in writing and orally, to corroborate his or her claims. The hearing provided for by s 425 is not an opportunity for confrontation, it is an opportunity for persuasion. The statutory process in Div 4 of Pt 7 of the Act is designed to afford an opportunity to the applicant to produce his or her case, with supporting material, in writing and in person. The case is then considered behind closed doors by the member of the Tribunal performing the function of an administrator. The member of such a tribunal is, or becomes, by way of being an expert in the circumstances of various countries, and must assess what is claimed by the applicant in the light of that knowledge. As such knowledge cannot all be carried in the head, a library of it must be available. Evaluation of the credibility of an account given by an applicant is subjective and depends upon many factors, including observations of an applicant at the hearing, in circumstances where the Tribunal member will usually have considered other cases with a similar claimed history and patterns will often have emerged. There is obviously always a mass of country information available. Much would be taken for granted. Much would be debatable. A selection of that which is relevant to the particular case depends upon the way in which the member views the case. The judgment as to the issues upon which external country information will be relevant is entirely a matter for the Tribunal member. There is no obligation to consider any or any particular country information. Disclosure of particular country information to an applicant is, in essence, to reveal the process of reasoning of the Tribunal.”
66 Although the situation in the current case is somewhat different, the same principles apply. The Tribunal is not a court and does not exercise judicial power (SZ v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 342, per Branson J at [37]-[41] (with whom Beaumont and Lehane JJ agreed); see also Abebe v Commonwealth (1999) 197 CLR 510 at [164]). As such, although consistency in decision making is generally desirable, there is no obligation on a Tribunal member to consider every previous decision of the Tribunal and give the weight to each decision that would be given to a judicial precedent. In the current context, it is worth noting that one of the decisions relied upon by the applicant to challenge the decision of the Tribunal, was given only six weeks prior to the applicant’s decision. In my opinion, it would be wholly inappropriate and out of keeping with the legislative scheme of the Act to place such an obligation on a Tribunal member.
67 Given the above considerations, the effect of s 474 in this case is to render the decision of the Tribunal final and conclusive, unless it can be shown that one of the three Hickman conditions is satisfied, ie, that: (i) the Tribunal did not make a bona fide attempt to exercise its power or that the decision is, on its face, beyond power; (ii) the decision does not relate to the subject matter of the legislation; or (iii) the decision is not reasonably capable of reference to the power given to the decision-maker.
68 In considering the three Hickman conditions in the current case it is clear, I think, that none are made out. First, there is nothing before the Court to indicate (nor has it been argued by the applicant at any stage in the proceedings) that the decision was not made by the Tribunal as a bona fide exercise of its power under the Act. Secondly, the decision deals with the review of a decision of a delegate of the Minister to refuse an application for a protection visa, and is squarely within the subject matter of the Act. Finally, there is no question that the Tribunal has power under the Act to make such determinations under s 411; and that the decision of the Tribunal in this case is reasonably capable of reference to that power (See also the recent decision of Tamberlin J in NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281 at [38]).
GROUNDS OF REVIEW ADVANCED BY THE APPLICANT
69 Given my conclusion as to the operation of s 474 of the Act, and the fact that the former s 476, as relied upon by the applicant, had been repealed at the time that the decision of the Tribunal was made, it is not strictly necessary for me to consider the grounds of review advanced by the applicant in her application for judicial review. However, because the applicant is a litigant in person (and probably was not aware of the amendments to the Act), I shall briefly consider the question of whether there would have been an error of law for the purposes of the previous provisions of the Act.
70 As noted above, in her written submissions, the applicant sought to rely on two decisions of the Tribunal that had previously dealt with the issue of the ‘propiska’ system of mandatory registration of residence in the Ukraine. Although it was not specifically stated in her written submissions, presumably the applicant would seek to rely on the Tribunal’s power to seek additional information (s 424), as a platform to argue that the Tribunal failed to give her an opportunity to respond to its adverse finding that the applicant could relocate within the Ukraine. Alternatively, it could perhaps be argued for the applicant that those decisions were within the knowledge of the Tribunal (actually or constructively); and that the failure to take them into account constituted an error of law in that the Tribunal failed to take into account a “relevant consideration”.
71 Counsel for the respondent did not have the benefit of the applicant’s submissions until the morning of the hearing. Given the respondent’s reliance on the effect of the privative clause, the respondent did not go into great detail in relation to the s 476 grounds of review. However, after reviewing the claims of the applicant, as set out in the decision of the Tribunal, and noting the change in the nature of those claims between the initial application and those presented before the Tribunal (discussed above at [6]-[7]), the respondent did have this to say on the reasoning of the Tribunal:
“In dealing with the question of relocation, the Tribunal correctly cited the leading authority of Randhawa v MILGEA (1994) 52 FCR 437, and that the important principle was not merely whether an applicant could relocate, but whether he or she could ‘reasonably be expected to do so’. At p80, the Tribunal set out explicitly what it considered to be the reasons why relocation was reasonable for the Applicant, and noted the lack of particular ties with the town of Monastyriska; the fact that her mother and daughter lived elsewhere; that her university qualifications provided flexibility in employment location; that she previously lived elsewhere when studying; and that given her problems were as a result of living in a small town, if living elsewhere where she was not known, she did not face a real chance of persecution for reasons of her religion. The Tribunal found, on the basis of the independent information, that people of the Greek Catholic faith do not face a real chance of persecution in the Ukraine.”
72 In oral argument before me, and in response to the written submissions of the applicant, counsel for the respondent also referred to the decision of Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155, dealing with the extent to which a duty to inquire exists in the context of administrative decision-making. In Prasad, the applicant sought review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “ADJR Act”) of a decision of the Minister refusing an application for a permanent entry permit to the applicant, who was the spouse of a permanent resident. The permit was refused on the basis that the applicant’s marriage had been assessed as one in which the parties did not intend to continue living as a married couple in Australia.
73 In Prasad, Wilcox J held that the decision of the Minister was invalid pursuant to s 5(2)(b) of the ADJR Act for “failing to take a relevant consideration into account”. The relevant considerations that the Minister failed to take into account in that case were a report, which was on the file, compiled by an interviewing officer in Suva expressing the opinion that the marriage was genuine, and certain statutory declarations of neighbours and acquaintances of the couple also indicating that the marriage was genuine.
74 Although it was not strictly necessary to decide in Prasad, Wilcox J also held that the decision of the Minister would also have been invalid pursuant to s 5(2)(g) of the ADJR Act, which provides a ground of review where the decision is “so unreasonable that no reasonable person could have so exercised the power”. In relation to the issue of failure to consider relevant material which was on the applicant’s file, Wilcox J made the following comments (at 169-170):
“…The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant’s case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information.”
75 The decision in Prasad was confirmed by the Full Court in Luu v Renevier (1989) 91 ALR 39 per Davies, Wilcox and Pincus JJ at 50, and has been followed in a number of subsequent decisions of this Court: see, e.g., Luu v Minister for Immigration & Multicultural Affairs [2001] FCA 1875 per Marshall J at [98]-[99]; Ahamed v Minister for Immigration & Multicultural Affairs [2001] FCA 1325 per French J at [12]; Rahman v Minister for Immigration & Multicultural Affairs [2000] FCA 1277 per French J at [27]-[32]; see also Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 per Wilcox J at [214]-[215].
76 The decision in Prasad stands for the proposition that, in reviewing an administrative decision, the Court is entitled to consider those facts which were known to the decision-maker, actually or constructively, together (only) with such additional facts as the decision-maker would have learned, but for any unreasonable conduct by him or her (Prasad per Wilcox J at 169; see also Rahman per French J at [31]).
77 As noted by French J in Ahmed (at [12]), Prasad was a case under the ADJR Act, which was decided before the introduction of Part 8 of the Migration Act and the provisions which previously confined judicial review to the grounds set out in s 476. With the recent amendments to the Act, we are now one step further removed from that position. In Rahman, French J said in relation to the previous provisions of the Act (at [32]):
“The grounds of review available under [the ADJR Act] reflecting, and to some extent extending, common law grounds of judicial review are not all available in respect of decisions made under the Migration Act. The grounds upon which the Court may review such decisions, including the decision presently in issue, are [now] confined to those set out in s 476. In Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553, there was a question whether the duty of the Refugee Review Tribunal under s 420 to “…act according to substantial justice and merits of the case” required the Tribunal in appropriate circumstances to make inquiries on its own account in relation to an application pending before it. … The Court referred to s 424 of the Act, …. The Court also referred to ss 425, 426 and 427 and said:
‘These provisions show that the Tribunal’s role in cases that come before it for review is not a passive one, although the circumstances in which the Tribunal could be found to be under an obligation to make a particular inquiry will no doubt be rare, as they have been in cases under the ADJR Act.” (560-561)
This observation was made on the assumption, accepted for the purpose of argument that s 420, requiring the Tribunal to act according to substantial justice and the merits of the case, imposed a procedure to be observed in connection with the making of the decision, failure to observe which would be a ground of review under s 476(1)(a) of the Act. That assumption has now been falsified by the decision of the High Court in Minister for Immigration and Ethnic Affairs v Eshutu (1999) 197 CLR 611 also the discussion of this issue in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 289-290 (Mason CJ and Deane J), 302-303 (Toohey J), 304-305 (Gaudron J) and 320-321 (McHugh J). All of these decisions arise in settings where there was or was assumed to be a wider range of grounds of review available than is now the case under the Migration Act. So called Wednesbury unreasonableness is not available as a ground of review, nor is breach of the rules of natural justice save for the case of actual bias.”
78 In the present case, there is no indication that the Tribunal member had any actual or constructive knowledge of the decisions referred to by the applicant. The nature and extent of “country information” to be taken into account by a Tribunal member in making his or her determination, in the circumstances of the particular case, is generally a matter for the judgment of that Tribunal member. As such, even were grounds of review under the previous s 476 available, the applicant has not demonstrated any error of law pursuant to the former s 476(1)(e) on the part of the Tribunal member in failing to take into account this material.
79 Similarly, in relation to the applicant’s claim that the Tribunal failed to comply with the former s 430 of the Act, in failing to set out the findings on material questions of fact, the applicant has not established a basis for judicial review. The reasons given by the Tribunal (see above at [13] – [33]) do, in my opinion, make clear the basis upon which the Tribunal made its findings adverse to the applicant.
80 Finally, the applicant’s claim that the Tribunal has erred in law in that there was no evidence or other material to justify the making of the decision, pursuant to the former s 476(1)(g), must also fail. As noted above, the Tribunal set out comprehensive reasons for its decision indicating the various sources of “country information” on which it relied, together with the extensive evidence given by the applicant herself. This material constitutes sufficient evidence on which the Tribunal was entitled to base its decision.
81 It follows that the application for review must be dismissed with costs.
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I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont. |
Associate:
Dated: 26 March 2002
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Solicitor for the Applicant: |
The applicant appeared in person |
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Counsel for the Respondent: |
Ms Sarah McNaughton |
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Solicitor for the Respondent: |
Clayton Utz |
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Date of Hearing: |
1 March 2002 |
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Date of Judgment: |
26 March 2002 |
