FEDERAL COURT OF AUSTRALIA

SBAH v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 456

MIGRATION – protection visa – whether Refugee Review Tribunal committed jurisdictional error – issue not raised in hearing before the Tribunal – obligation or duty of Tribunal to make proper inquiries – no question of principle

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 479(a)

Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 applied

Ratumaiwai v Minister for Immigration and Multicultural Affairs [2002] FCA 311 referred to

APPLICANT SBAH OF 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

MARSHALL J

ADELAIDE

5 APRIL 2002

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.

REASONS FOR JUDGMENT

Introduction

1                     The applicant is a child who will turn two years of age next Friday, 12April, 2002. He was born eight days after his father was removed from Australia after an unsuccessful attempt to obtain a protection visa. The applicant’s mother was not removed from Australia at that time because she had just given birth to the applicant and was recuperating. The applicant’s mother had also made an unsuccessful application for a protection visa. She has remained in Australia pending the outcome of the current proceeding.

2                     On 3 August 2000, an application for a protection visa was lodged on behalf of the applicant with the respondent’s department. On 24 January 2001, a delegate of the respondent refused to grant a protection visa to the applicant. On 8 February 2001, an application was made on behalf of the applicant to the Refugee Review Tribunal (“the RRT”) for a review of the decision of the delegate.

Relief sought

3                     In its decision dated 23 October 2001, which was sent to the applicant on 13 November 2001, the RRT affirmed the decision under review. On 7 December 2001, the applicant’s solicitors filed an application in the South Australia District Registry of the Court pursuant to s 39B of the Judiciary Act 1903 (Cth). That application, as amended, sought inter alia the following relief:

“(1)     An order that a writ of certiorari be directed to the Refugee Review Tribunal to quash its decision of 23 October 2001.

(2)       An order that a writ of prohibition be directed to the First Respondent prohibiting him from acting upon, giving effect to or proceeding further upon the decision of 23 October 2001.

(3)       An order that a writ of mandamus be directed to the Refugee Review Tribunal to re-determine the applicant’s visa application according to law.

…..”

4                     The application was accompanied by an affidavit sworn by the applicant’s solicitor. The affidavit stated that the solicitor acted for the applicant and that the applicant had standing to commence the proceeding pursuant to s 479(a) of the Migration Act 1958 (Cth) (“the Act”). The affidavit exhibited a copy of the reasons for decision of the RRT. Paragraph 5 of the affidavit states that:

“The applicant seeks relief under s39B of the Judiciary Act 1903 (Cth) on the ground that the Migration Review Tribunal (sic) –

(a)               exceeded its jurisdiction in making its decision to affirm the First Respondent’s decision, and,

(b)               constructively failed to exercise its jurisdiction in arriving at its decision.”

5                     On 30 January 2002, Mansfield J ordered inter alia that “the applicant file and serve particulars of the grounds of the application by 1 March 2002”. Leave was also given to the applicant, “if so advised, to join the Refugee Review Tribunal as the second respondent by 15 February 2002.” No application to join the RRT has been made, but no issue is raised about the lack of joinder in the proceeding. The particulars of the application were not provided until the day before the hearing. Apart from an examination of the possible implications of s 474 of the Act, the particulars were essentially a restatement, in summary form, of a contention contained in the applicant’s written outline of argument and ultimately the only contention that was relied upon.

The RRT

6                     The applicant’s mother claimed before the RRT that the applicant faced persecution if sent to China because he was the second son of her marriage to the applicant’s father and consequently would be considered to be a “black child” by the Chinese authorities. She claimed that her first child was born in China in June 1994 and was left there in the care of her parents. No claim was made that the applicant faced persecution on account of his father being the father of two other children to his first wife.

7                     The RRT did not accept that the applicant was the second child of his parents. It did not accept as genuine certain documents purporting to be a certificate of the marriage of the applicant’s parents or the purported certificate of the birth of their alleged first born son. The RRT accepted that the applicant’s mother’s passport accurately states her marital status in December 1996 as single. The RRT did not accept that the applicant’s parents were married in October 1993 or that the first child of the marriage was born in June 1994. It accepted that the applicant’s parents may have married some time after December 1996. It did not accept that the applicant was born in contravention of China’s one child policy.

8                     The RRT further did not accept that the applicant:

·        is stateless and cannot travel to China;

·        will suffer persecution because his father is in prison in China;

·        will become an orphan of the State if sent to China; and

·        has a well founded fear of persecution for a convention reason if he travels to China with his mother.

Black Child issue

9                     Counsel for the applicant took issue with the finding by the RRT that the applicant was not a “black child”. He submitted that the RRT did not consider the status of the applicant by reference to the fact that his father had other children by his first wife. It was contended that the one-child policy applied to a second marriage in that it permitted a child from a new marriage only where the parents had one child from a previous marriage. Given that the applicant is not the first and only child of his father, it was submitted that the applicant was a “black child”.

10                  The RRT did not receive any submission on behalf of the applicant that he would be considered to be a “black child” because his father had more than one child from a previous marriage. No doubt this was because no claim of a well-founded fear of persecution was made on that account. The RRT noted, at [33] of its reasons for decision, that the applicant’s adviser submitted that the applicant’s father had fathered two children who were born to his former wife and who are in China in her care. At [41], the RRT noted that the applicant’s mother made the same claim in her evidence given to it. In the reasons for decision of the delegate, it was noted that:

“… no claims have ever been made that the applicant's father had any difficulties when he breached the one‑child policy with his previous wife or that the second son of the applicant's father had any convention‑related difficulties at all in China and there is no reason to believe the applicant would face any such difficulties in that country.”

11                  As the issue of the applicant’s father having fathered children by a previous marriage was clearly raised by the delegate, it was incumbent on the applicant's advisers to develop it before the RRT and to, if necessary, suggest a contrary approach to the one suggested by the delegate. As is clear from the judgment of the Full Court in Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 (2001) FCA 274 at [12] to [14] and [86] to [88], the obligation or duty of the RRT to make proper inquiries does not extend to an inquiry into a case which is not put by the applicant but in effect disavowed by it.  In any event, the documents relied upon to assert that the applicant would be considered to be a “black child” in China were never officially authenticated and were not translated by an accredited interpreter. Further, they were relied upon only for the purpose of countering the delegate's finding that there had been a relaxation of the one-child policy in Shanghai.

12                  In my opinion, the RRT did not commit a jurisdictional error by not making a finding about the applicant being a “black child” by reference to his father's children to the father's first wife.  The point having been identified by the delegate, but not raised by the RRT, it was not necessary for the RRT to deal with it.  It was, for all intents and purposes, a non-issue which was not clearly raised in an unambiguous way in the evidence before the RRT (compare Ratumaiwai v Minister for Immigration and Multicultural Affairs [2002] FCA 311 at [14] per Hill J). However, the crucial point on this aspect of the case for present purposes is that no claim for a protection visa was made on account of the applicant having a well‑founded fear of persecution by reference to his father's fathering of other children in a previous marriage.

Section 474

13                  Given that there is no merit in the only point raised by counsel for the applicant, it is unnecessary to consider whether s 474 of the Act applies to the RRT's decision so as to make it immune from judicial review in this Court.  However, it should be noted that in the “particulars” filed yesterday by the applicant's solicitor, the following was said at paragraph 10 thereof:

“The ‘Hickman principle’ lays down three conditions.  The applicant accepts, on the basis of these three conditions it is not possible to impugn the decision of the Tribunal.  That is, the applicant accepts that the decision of the Tribunal is a bona fide attempt to exercise its power, that the decision related to the subject matter of the Act and the applicant does not challenge the authority of parliament to pass s. 474.”

For completeness, I record that the paragraph went on to say:

“Under s. 75(v) of the Constitution a privative clause such as s.474 however cannot cut down the judicial review of decisions of Commonwealth officers which involve jurisdictional error.”

It is unnecessary to deal with that particular aspect of paragraph 10 of the particulars, given that I have been unable to find that jurisdictional error has been committed by the RRT in any event in this matter.

Disposition

14                  The application is dismissed with costs.

Associate:

Dated:              5 April 2002