FEDERAL COURT OF AUSTRALIA

VAV & VAW v Minister for Immigration & Multicultural Affairs

[2002] FCA 646

MIGRATION – appeal from decision of Refugee Review Tribunal – refusal to grant protection visa – applicants claimed fear of persecution if returned to Indonesia – privative clause decision – decision of administrative character – whether jurisdictional error – merits review sought.

Migration Act 1958 (Cth):  ss 36(2), 474, 475A, 476

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth):  Sch 1 Pt 2 Item 8(2)(b)

Judiciary Act 1903 (Cth):  s 39B

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598  applied

R v Murray; Ex parte Proctor (1949) 77 CLR 387  referred to

VAV and VAW v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

V 1141 of 2001

GOLDBERG J

27 MAY 2002

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicants pay the respondent’s costs of and incidental to 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 applicants, who are husband and wife, have applied to the Court to review the decision of the Refugee Review Tribunal (“the Tribunal”) on 12 September 2001, whereby the Tribunal affirmed the decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”) to refuse to grant protection (class XA) visas to the applicants pursuant to the provisions of the Migration Act 1958 (Cth) (“the Act”).  The Tribunal was not satisfied that the applicants were persons to whom Australia had protection obligations under the 1951 Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the 1967 Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”).  The Tribunal therefore concluded that the applicants did not satisfy the criterion set out in s 36(2) of the Act for a protection visa. 

2                     The applicants arrived in Australia on 11 September 2000, and on 25 September 2000 they lodged an application under the Act for protection (class XA) visas with the Department of Immigration and Multicultural Affairs.

The applicants’ claims

3                     The applicants, who are husband and wife, are citizens of Indonesia of Chinese ethnicity.  Only the wife made specific claims under the Convention and I will hereafter refer to the wife as the applicant.  The applicant claimed that she was raped by two people of Javanese ethnicity on 26 June 2000 in front of the University in which she was enrolled.  The applicant and the two persons alighted from a bus at the same time and the two persons asked her for money.  She gave them 5,000 rupiah which was all the money she had.  The applicant was then hit across her shoulder and back of the neck by one of the persons with what could have been a lump of wood.  She lost consciousness and when she regained consciousness about two or three hours later she was “somewhere near trees”, although she was still not far from the bus station where she had alighted.  She realised she had been raped and walked home.  When the applicant was asked what reason she attributed to the rape after she had given the persons money, she said that the persons complained about the amount and added that “maybe they hated the Chinese and they thought that they had a lot of money”.  She did not report the rape to the police as she was frightened and her husband said that going to the police was useless because they would end up spending a lot of money and nothing would happen.  She did not see a doctor as her husband had applied some Chinese medicine to her neck.  She stayed indoors and did not go out because of her trauma.

4                     The applicant said that she feared she would be killed in Indonesia, that she was afraid of Javanese people and she was traumatised about what happened.  The applicant’s husband also said that he did not report the incident to the police because they would not have taken any notice.  He said that the Chinese were second class citizens in Indonesia. 

Reasoning of the Tribunal

5                     The Tribunal considered that there were a number of implausibilities in the applicant’s account of her rape, but despite the implausibilities the Tribunal was prepared to accept that the applicant was raped by two persons of Javanese ethnicity.  The Tribunal did not accept that the motivation for the crime was the applicant’s ethnicity, but considered that the evidence proffered pointed to the perception of the applicant being approached for money rather than for any other reason.  The Tribunal concluded that “the crime perpetrated was not for a Convention reason”.

6                     Nevertheless, the Tribunal recognised that events in Indonesia in May 1998 would provide grounds for a subjective fear on the part of the applicant if she returned to Indonesia, and the Tribunal accepted that there was a remote chance that the applicant could be raped again if she returned to Indonesia.

7                     The Tribunal then turned to consider whether the applicants faced a real chance of persecution for the reason of their ethnicity.  The Tribunal referred to a number of country reports in relation to Indonesia from the Department of Foreign Affairs and Trade and Reuters Business Briefing which were sourced from a number of news sources and also referred to a number of other news sources.  In short, that information referred to incidents involving violence to ethnic Chinese in Indonesia and to changes which had occurred in Indonesia since 1998.

8                     The Tribunal then reached the following conclusion:

“Having considered the above material the Tribunal concludes that discrimination against Sino‑Indonesians occurs particularly in situations of economic downturn; in the recent past the economic crisis has degenerated into disturbances which have included burning and looting of shops and churches.  It also concludes that these disturbances have been met with responses by the security forces which, while they may not be satisfactory in all respects, indicate that the government is willing and able to protect its citizens irrespective of their ethnicity.  It is clear that absolute protection of an individual is not required and state protection by no means implies that the authorities must or can, provide absolute guarantees against harm (Thiyagarajah v MIMA (1997) 73 FCR 176 at 179 – see also MIMA v Prathapan (1998) 156 ALR 672 at 680‑81).

The Tribunal is of the view that given the changes in the political structure in Indonesia in the recent past, given that a program of reform has been embarked upon, there is not a real chance that the applicants would be persecuted for reasons of their ethnicity, now or in the reasonably foreseeable future.”

The Review

9                     The applicants’ application for a review of the Tribunal’s decision did not specify any grounds of review with particularity.  Rather the application recited general grounds which had been available under the provisions of the Act before the amendments which came into effect on 2 October 2001.  Other general grounds recited were more relevant to grounds for judicial review available pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) but not available under the provisions of Pt 8 of the Act either before or after 2 October 2001.  Other grounds were specified in the alternative in the event that ss 474, 475A and Pt 8 of the Act in their amended form after 2 October 2001 were unconstitutional and Pt 8 in its form prior to 2 October 2001 was preserved in an unamended form.

10                  The applicants were not represented on the hearing of the application for review, and no submissions were made that ss 474, 475A or Pt 8 of the Act in their amended form after 2 October 2001 were unconstitutional and I therefore proceed on the basis that there is no challenge to the constitutional validity of s 474, s 475A of the Act.

11                  As the application was filed on 1 November 2002, the application falls to be determined by reference to the provisions of the Act as they were amended, in particular, by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).  The transitional provisions of that amending Act provide that the Act, as amended, applies to applications for review of decisions of the Tribunal made before the coming into operation of Sch 1 of the amending Act on 2 October 2001, where the application for review is filed with the Court after the amending Act came into effect:  Sch 1 Pt 2 Item 8(2)(b) of the amending Act.

12                  The jurisdiction of the Court to review decisions of the Tribunal is now more limited than it was prior to 2 October 2001.  The decision of the Tribunal in respect of which the application in this proceeding is brought is a “privative clause decision” for the purposes of s 474 of the Act as amended on and from 2 October 2001.  Section 474 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.

(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).”

The decision of the Tribunal is a decision of an administrative character.

13                  Section 476 of the Act denies the Court jurisdiction in relation to a decision of the Tribunal that has reviewed the decision of a delegate of the Minister to refuse to grant an applicant a protection visa:  s 476(1) and (6).  However, s 475A of the Act acknowledges the continued jurisdiction of the Court under, inter alia, s 39B of the Judiciary Act 1903 (Cth) in relation to such a decision of the Tribunal, that is to say a decision of the Tribunal affirming the decision of a delegate of the Minister refusing to grant an applicant a protection visa.  That provision is subject to the provisions of s 475 of the Act which provides that Div 2 of Pt 8 of the Act, which includes s 475A, is “not to be taken to limit the scope or operation of section 474”.

14                  Section 474 is expressed in very broad and comprehensive terms; yet it still leaves open an area of jurisdiction for the Court.  The Minister accepted that the jurisdiction of the Court was not ousted in all respects, but was available to be exercised in limited circumstances, by reference to the categories of review identified by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598.  Dixon J said 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 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.”

15                  It can be seen from this passage that the decision of the Tribunal may be open to review by the Court if any one of three conditions is satisfied.  First, if the constitutional authority of the Parliament to define the powers of the Tribunal has been exceeded.  That has not been submitted in this case.  Secondly, if it is shown that the exercise of the power was unrelated to the subject‑matter of the legislation.  In the present case, the Tribunal was considering a decision of the delegate of the Minister to refuse to grant the applicants a protection visa, a task which it was empowered and required by the Act to undertake:  ss 411 and 414 of the Act.  Thirdly, if the decision made was, on its face beyond power or the decision was not a bona fide attempt by the Tribunal to act in the course of its authority.  Neither of those situations arise in the present case:  SAAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 101.

16                  The Minister acknowledged that the substantive issue raised by the provisions of s 474 was to be considered by identifying the extent to which the statutory scheme of Pt 8 of the Act allows for the examination of any error said to have been committed by the Tribunal.  Reference was made to the analysis by Dixon J in R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 400:

“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 must 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].”

17                  The Minister accepted that despite the broad terms of s 474(1), the Court retained jurisdiction to entertain the present application under s 39B of the Judiciary Act insofar as the application sought a writ of mandamus or prohibition or an injunction against the Minister.  Whether that jurisdiction should be exercised depends, in general terms, upon whether the Tribunal has fallen into jurisdictional error.  A number of judgments have considered the nature of the jurisdictional error which might give rise to relief under s 39B of the Judiciary Act, notwithstanding s 474(1) of the Act, and the extent to which that error should be investigated.  Differences of opinion have been expressed in those judgments:  see, for example, Walton v Philip Ruddock, The Minister for Immigration & Multicultural Affairs [2001] FCA 1839; SAAA v Minister for Immigration & Multicultural & Indigenous Affairs (supra); NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263; NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281; Boakye‑Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438; Kwan v Minister for Immigration & Multicultural Affairs [2002] FCA 498; NABC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 539.

18                  In the circumstances of the present case, I do not need to seek to resolve the issues raised by these decisions as to the extent of the jurisdictional error amenable to consideration under s 39B of the Judiciary Act and to the correct approach to the application of s 474 of the Act.  I am satisfied that the Tribunal did not fall into any error. 

19                  The Tribunal correctly identified the applicable legislation and relevant principles of law.  It set out the claims made by the applicant and the evidence relied on by the applicant in support of those claims.  The Tribunal accepted that the applicant had been raped and concluded that the rape was not committed for Convention reasons.  It was clearly open to the Tribunal to reach that conclusion on the material before it.  Any challenge to that conclusion would involve the Court in reconsidering the merits of the applicant’s claims before the Tribunal, but it is not open to the Court to undertake a review of the merits of the application.

20                  The Tribunal analysed the issue whether the applicants faced a real chance of persecution for the reason of their ethnicity and concluded, on the material before it, that they did not.  The Tribunal concluded that there was not a real chance that the applicants would be persecuted for reasons of their ethnicity, either “now in the reasonably foreseeable future”.  It was clearly open to the Tribunal to reach that conclusion on the material before it.  It is not for this Court to undertake a review of the merits of this issue.

21                  After I reserved my decision on the application, the applicants sent to my chambers two documents, apparently obtained from the Internet, relating to claims that Indonesian laws discriminated against Indonesians of Chinese ethnicity.  Copies of the documents were made available to the Minister’s solicitor.  I do not consider that those documents are relevant to the application before the Court.  The Court can only consider, and take into account, material which was before the Tribunal at the time it made its decision.  In any event, the documents are only relevant to the merits of the applicants’ claims and, as I have observed earlier, it is not open to this Court to undertake a review of the merits of the applicants’ claims.

22                  The application will be dismissed with costs.

Associate:

Dated:              27 May 2002