FEDERAL COURT OF AUSTRALIA

VAAR of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 337

MIGRATION – review of decision of Refugee Review Tribunal – effect of privative clause – operation of the Hickman principle – applicant claimed that the Tribunal failed to accept his evidence of having been threatened – no jurisdictional or other relevant error demonstrated

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 474(1), 474(2)

Walton v Minister for Immigration and Multicultural Affairs [2001] FCA 1839 at [14] to [46] referred to

NAAX v Minister for Immigration & Multicultural [2002] FCA 263 referred to

NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281 at [11] referred to

R v Hickman; Ex Parte Fox and Clinton (1945) 70 CLR 598 at 615-616 referred to

Craig v South Australia (1995) 184 CLR 163 at 177-179 referred to

VAAR OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 46 of 2002

WEINBERG J

15 MARCH 2002

MELBOURNE

THE COURT ORDERS THAT:

The application be dismissed with costs

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for review of a decision of the Refugee Review Tribunal (“the RRT”) made on 17 January 2002.  The RRT affirmed the decision of a delegate of the respondent Minister to refuse the applicant a protection visa.  The applicant seeks review of that decision under s 39B of the Judiciary Act 1903 (Cth), his application for review having been filed after 1 October 2001, when the provisions of the Migration Act 1958 (Cth) were substantially amended. 

Background

2                     The applicant is a Sri Lankan national of Sinhalese ethnicity.  He is presently 27 years of age.  He arrived in Australia on 5 November 2001 on a subclass 420 Entertainment visa. That visa was cancelled on the same day and he was subsequently taken into immigration detention.  On 9 November 2001 he applied to a delegate of the Minister for a protection visa.  On 6 December 2001 that application was refused.  As previously indicated, the RRT affirmed that decision on 17 January 2002.

3                     The present application was filed on 21 January 2002.  It contains neither grounds nor particulars in support of the application.  That is hardly surprising given that the applicant has been unrepresented throughout this proceeding. 

4                     The applicant's claims are set out in the reasons for decision given by the RRT.  He said that he had been involved in the 1994 elections in Sri Lanka on behalf of an SLFP member of Parliament.  He claimed that he had received death threats as a result of that involvement.  Between January 1997 and February 2001 he had resided in Saudi Arabia where he had been employed as an airport maintenance worker.  He then returned to Sri Lanka and was subjected to further threats.  He said that he also had concerns for his family.  He feared that if he were required to return to Sri Lanka, he would be harmed .

5                     It is unnecessary to set out in detail the applicant's claims at the hearing before the RRT.  These were carefully summarised in its reasons for decision.  They included the following matters:

·                     he had been active in the 1994 election, putting up SLFP posters and pulling down opposition posters;

·                     he had helped to organise meetings and had spoken at rallies criticising the opposition;

·                     he had been targeted for harm because of his criticism of the opposition party;

·                     the particular individual who wanted to harm him was a member of Parliament and was wealthy and influential;

·                     he had returned to Sri Lanka after February 2001 because his mother wished to see him.  He had thought, prior to his return, that the threat to his safety was over;

·                     upon his return he resumed work for his party, working for the president of the Youth League, becoming a “chief member” and making speeches;

·                     because of the threats made against him, he had left Colombo and went to Polonnaruwa, remaining there until four months before arriving in Australia;

·                     he could not go anywhere else in Sri Lanka because his enemies now controlled the Government;

·                     he had been threatened over the telephone and by mail;

·                     he had also been physically assaulted and required medical attention;

·                     he had complained to the police but they would do nothing in response to his complaints.  He believed that if he had persisted with them, his family would have been killed.

6                     When asked by the Tribunal why he would not be safe if he were to withdraw from party politics, or to live in another part of the country, he replied that he “could not stay away from politics” and, in any event, “the threats against him were because of what he had done in 1994.”

The RRT’s decision

7                     The RRT accepted that the applicant may have been an open critic, in the past, of the opposition party, the UNP.  It considered that criticism of that nature was a normal feature of elections in Sri Lanka.  It found it implausible that such criticism, and the actions that he described, would had led to his being singled out for threats and physical harm.  It was not satisfied that, in 1994, he was any more than a "normal" active supporter of his party.  It was not satisfied that he had developed a profile in that year which he had maintained since that time.  It found that he remained safely in Sri Lanka until 1997 when a Member of Parliament had assisted him to obtain employment in Saudi Arabia, and that he had gone there for economic reasons.

8                     The RRT found that the applicant had returned to Sri Lanka at his mother's urging.  It considered it implausible that she would have wanted him to return if he had been in any real danger.  It considered it equally implausible that there should have been an immediate resumption of threats against him after his return, given that his involvement in the 1994 elections had not been of any great moment, and he had been absent from Sri Lanka for four years.  It did not accept that, upon his return from Saudi Arabia, he had done any more than renew his past association with the SLFP.  It did not accept that his political activities were such as to incur the threats and other unwarranted attention which he claimed.  It followed that it was not satisfied that he was a person to whom Australia had protection obligations.

The application for review to this court 

9                     As the application was filed after 1 October 2001, this Court's jurisdiction to review the decision of the RRT is solely that conferred by s 39B of the Judiciary Act.  The RRT’s decision is a privative clause decision within the meaning of s 474(2) of the Migration Act and is subject to the limitations set out in s 474(1).  A privative clause decision is “final and conclusive”, “must not be challenged, appealed against, reviewed, quashed or called in question in any court” and is not subject to prerogative, injunctive or declaratory relief.  The operation and effect of the provisions contained in the new Pt 8 of the Act have already been the subject of considerable analysis.  There are some differences of interpretation regarding their scope: compare Walton v Minister for Immigration and Multicultural Affairs [2001] FCA 1839 at [14] to [46] per Merkel J and NAAX v Minister for Immigration & Multicultural [2002] FCA 263 per Gyles J.

10                  In NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281, Tamberlin J noted that, upon its face, s 474(1) of the Act would seemingly oust all judicial review.  However, other provisions make it clear that this was not intended: see, for example, ss 475A, 477 and 478.  His Honour said, at [11]:

“…Unlike s 476, the effect of s 474 is not to withdraw jurisdiction from the Court in relation to a decision.  What is apparent from these provisions is that s 474 is set in the context of a highly prescriptive regime directed to severely constrain judicial review of certain administrative decisions under the Act.”

11                  In general terms, it is clear that a privative clause decision cannot be reviewed unless it falls within the limitations upon the Hickman  principle ( R v Hickman; Ex Parte Fox and Clinton (1945) 70 CLR 598) expressed by Dixon J at 615-616.  In general terms, no decision made by a body invested with decision-making power which is subject to a privative clause will be invalidated on the grounds of jurisdictional error if the decision was made bona fide, relates to the subject matter of the legislation, and is reasonably capable of reference to the power given to the body concerned.  There is a debate as to whether this is an exhaustive statement of the qualifications upon the relevant principle.  However, for reasons that will become apparent, that debate need not be addressed in the present case. 

Conclusions

12                  The applicant did not advance any arguments in oral submissions before this Court which took his submissions before the RRT any further.  He identified two matters which he claimed the RRT had failed to consider.  It was pointed out, however, by counsel for the respondent, that in fact the RRT had referred to each of those two matters in terms. 

13                  The applicant also ascribed to the RRT an error relating to a photograph which was said to depict him wearing traditional dress, and holding traditional musical instruments.  He claimed that he did not appear in that photograph, and that he had not claimed that did, to the RRT.  That may be so, but it goes nowhere near raising an error of a kind which might give rise to a “jurisdictional error” in the sense described in Craig v South Australia (1995) 184 CLR 163 at 177-179. 

14                  The applicant’s case, put simply, is that the RRT erred in failing to accept his evidence that he had been threatened.  It was plainly open to the RRT to reject that evidence.  There is nothing to suggest that the RRT’s decision was not made as part of a bona fide attempt to exercise its power, that it did not relate to the subject matter of the Act, or that it was not reasonably capable of reference to the power conferred upon it.  Manifestly, that decision did not violate any constitutional or other inviolable limitation upon the powers of the RRT.  Nor did it involve any finding as to a "jurisdictional fact” which could be impugned.  It follows that no error of the type necessary to attract relief under s 39B of the Judiciary Act has been demonstrated.  Accordingly, the application must be dismissed.

Associate:

Dated:              15 March 2002