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

2002FCA0713 - Corrigendum

FEDERAL COURT OF AUSTRALIA

MIGRATION – protection visa – claims of jurisdictional error in the Tribunal – s 474 – approach to review – Constitutional validity of s 474.

Constitution s 75(v)

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 36, 65, 414, 415, 474, 475, 475A and 476

Acts Interpretation Act 1901 (Cth) s 15A

Bill of Rights 1688, article 2

9 Geo IV c 83

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

Craig v State of South Australia (1995) 184 CLR 163 referred to

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 referred to

Boucaut Bay Co Ltd (in liq) v Commonwealth (1927) 40 CLR 98 referred to

R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 referred to

Buck v Bavone (1976) 135 CLR 110 referred to

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to

Australian Heritage Commission v Mt Isa Mines (1997) 187 CLR 297 referred to

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 referred to

Bull v Repatriation Commission [2001] FCA 1832 referred to

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 discussed

Minister for Immigration & Multicultural Affairs v Epeabaka (1999) 84 FCR 411 discussed

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 discussed

Shrimpton v Commonwealth (1945) 69 CLR 613 referred to

R v War Pension Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 referred to

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 referred to

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

O’Toole v Charles David Pty Ltd (No 2) (1991)171 CLR 232 discussed

Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 referred to

R v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415 referred to

R v Metal Trades & Employers’ Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208 referred to

Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 477 disagreed with, in part

NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 approved and followed

Australian Communist Party v Commonwealth (1951) 83 CLR 1 referred to

Abebe v Commonwealth; Re Minister for Immigration & Multicultural Affairs (1999) 197 CLR 510 referred to

Egan v Willis (1998) 195 CLR 424 referred to

Commonwealth and Central Wool Committee v The Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 referred to

Coco v R (1994) 179 CLR 427 referred to

R v Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Ltd (1947) 75 CLR 361 referred to

R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123 referred to

Daihatsu Australia v Federal Commissioner of Taxation (2001) 184 ALR 576 discussed and applied

SBAP v Refugee Review Tribunal [2002] FCA 590 discussed and applied

SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547 discussed and applied

R v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) (1967) 118 CLR 219 discussed

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

Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397 discussed and applied

Boakye-Danquah v Minister for Immigration & Multicultural Affairs [2002] FCA 438 not followed

Walton v Ruddock [2001] FCA 1839 not followed

Kwan v Minister for Immigration & Multicultural Affairs [2002] FCA 498 not followed

Coal Miners’ Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia Ltd (1960) 104 CLR 437 referred to

Hockey v Yelland (1984) 157 CLR 124 referred to

Public Service Association (SA) v Federated Clerks’ Union of Australia (1991) 173 CLR 132 referred to

Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602 discussed

CFMEU v Australian Industrial Relations Commission (1999) 93 FCR 317 referred to

Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 referred to

Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802 discussed

W396/01 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 103 discussed

Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196 discussed

Rubinstein Jurisdiction and Illegality (Oxford 1965) pp 85 ff.

NAAG of 2002 v Minister for Immigration & Multicultural & INDIGENOUS Affairs

N 5 of 2002

ALLSOP J

5 JUNE 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 5 of 2002

BETWEEN:	NAAG of 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	5 JUNE 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. the application be dismissed; and

2. the applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 5 of 2002

BETWEEN:

NAAG of 2002

APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE:	ALLSOP J
DATE:	5 JUNE 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for orders in relation to a decision of the Refugee Review Tribunal (the Tribunal). The application was made in respect of a decision of the Tribunal made on 21 December 2001, and thus falls to be decided under the provisions of the Migration Act 1958 (Cth) (the Act) in place and operative after 2 October 2001.

2 The applicant, an Iranian national, had her claim for asylum rejected by a delegate of the Minister. The Tribunal, on review under ss 414 and 415 of the Act, affirmed that decision. Various complaints are made about the decision of the Tribunal. I will come to them in due course.

Approach to Section 474

3 It is necessary to identify from Part 8 of the Act, in particular ss 474, 475, 475A and 476 of the Act, what the legitimate grounds of complaint about a decision of the Tribunal can now be. The terms and nature of ss 474, 475, 475A and 476 have been discussed by a number of Judges of the Court sitting alone. I do not propose to undertake a detailed review of those cases beyond that which is necessary to deal with the arguments put before me. Suffice it to say at this point that there is a division of opinion in the Court as to the effect of those provisions, in particular s 474, and that the preponderance of those decisions (in number) is in favour of the proposition that the provisions of s 474 ‘protect’ (to use a neutral term) a decision of the Tribunal from successful attack under s 39B of the Judiciary Act if it conforms with what was said by Dixon J (as his Honour then was) in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. That is perhaps an oversimplification, but it suffices for present purposes.

4 The parties in this case, and in the case of another applicant, NAAH of 2002 (which cases were heard together), have put full argument to me about the operation of s 474, its limits, including its constitutional limits, its constitutional validity and the validity of the Tribunal’s decisions concerning NAAG and NAAH in the light of these matters. (Appropriate notices under s 78B were issued on a timely basis in respect of these matters.) In deference to the careful and thoughtful arguments of all counsel in both matters (for which, in addition to the discourse during argument, I am indebted to them) and in the light of the fact that there is a clear difference of view among Judges of the Court as to the operation of s 474, I think it appropriate to express my views, notwithstanding that they conflict with those of some Judges of the Court.

5 The Tribunal’s task here, under s 414 of the Act, was to review the decision of the delegate. This involved the exercise of all the powers and discretions that were conferred by the Act on (in this case) the delegate: subs 415(1). Relevantly, in this case, the Tribunal was required, upon reaching a decision, to act under subs 415(2) of the Act. The courses of action open to the Tribunal under subs 415(2) included affirming the decision, or setting it aside and granting the protection visa, depending upon the Tribunal’s state, or lack, of satisfaction as to whether the applicant was a non-citizen in Australia to whom Australia has protection obligations under the Convention: subss 65(1) and 36(2) of the Act. (The textual repetition of ‘have been satisfied’ and ‘is satisfied’ in paras 65(1)(a)(ii) and 36(2)(a) of the Act, respectively, does not affect this conclusion.)

6 In the absence of a privative clause such as s 474 (apart from any other vice of a jurisdictional or non-jurisdictional character that might otherwise infect and vitiate the decision of the Tribunal: cf Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1), the state, or lack, of satisfaction reached by the Tribunal under ss 65 and 36, to be recognised as validly existing, or not, at law, would have to be able to be described as honestly, not capriciously and not arbitrarily reached, upon circumstances giving a rational foundation for the belief entertained: Boucaut Bay Co Ltd (in liq) v Commonwealth (1927) 40 CLR 98 at 101 (per Starke J); R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430; Buck v Bavone (1976) 135 CLR 110 at 118-19; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 275-276; Australian Heritage Commission v Mt Isa Mines (1997) 187 CLR 297, 303; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [34], and the other High Court cases referred to and discussed by Emmett J and myself in Bull v Repatriation Commission [2001] FCA 1832 at [23] to [25]. There may be an issue as to whether legislation construed in this way would be seen as also requiring that the state, or lack, of satisfaction be based on findings or inferences of fact which are supported by some probative material or logical grounds: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 657 at [145] (per Gummow J). Though, in this respect, see Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 at [22] to [26] and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356, which, certainly for a Judge of the Federal Court sitting at first instance, deny illogicality as a basis for judicial review. The citation of Eshutu, supra at 650-57 by Gleeson CJ, Gummow J, Kirby J and Hayne J in Corporation of the City of Enfield, supra at 150 at footnote 57, was not intended, as I read it, to overturn Bond, supra, as to the consequences of illogicality. Rather, it was in support of the general proposition that where a power or duty turns on the existence of an opinion or a satisfaction as to a state of affairs, the opinion or satisfaction will be treated as being required to be formed reasonably (in the sense that word was used in the cases referred to above) upon the material before the decision-maker.

7 However, s 474 is in the Act. It is well to recall its terms, the terms of the Second Reading Speech of the Minister and the terms of the Explanatory Memorandum explaining its purpose, in order to understand the purpose or object underlying its insertion into the Act. Subsections 474(1), (2), (3) and (4) are in the following terms:

SECT 474

Decisions under Act are final

(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

(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).

(3) A reference in this section to a decision includes a reference to the following:

(a) granting, making, suspending, cancelling, revoking or refusing to make an order or determination;

(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);

(d) imposing, or refusing to remove, a condition or restriction;

(e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement;

(f) retaining, or refusing to deliver up, an article;

(g) doing or refusing to do any other act or thing;

(h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

(i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;

(j) a failure or refusal to make a decision.

(4) For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:

[There are then set out various provisions which are not privative clause provisions.]

8 The Minister said the following in his Second Reading Speech:

The bill gives legislative effect to the government’s longstanding commitment to introduce legislation that in migration matters will restrict access to judicial review in all but exceptional circumstances. This commitment was made in light of the extensive merits review rights in the migration legislation and concerns about the growing cost and incidence of migration litigation and the associated delays in removal of non-citizens with no right to remain in Australia...

… The result is to give decision makers wider lawful operation for their decisions, and this means that the grounds on which those decisions can be challenged in the Federal and High Courts are narrower than currently. In practice, the decision is lawful provided:

· the decision maker is acting in good faith;

· the decision is reasonably capable of reference to the power given to the decision maker – that is, the decision maker had been given the authority to make the decision concerned, for example, had the authority delegated to him or her by the Minister for Immigration and Multicultural Affairs, or had been properly appointed as a tribunal member;

· the decision relates to the subject matter of the legislation – it is highly unlikely that this round would be transgressed when making decisions about visas since the major purpose of the Migration Act is dealing with visa decisions; and

· constitutional limits are not exceeded – given the clear constitutional basis for visa decision making in the Migration Act, this is highly unlikely to arise.

9 The Explanatory Memorandum at [14], [15] and [16] said as follows:

[14] New subsection 474(1) introduces a privative clause for decisions made under the Migration Act, regulations made under that Act or other instruments under that Act except for decisions made under the provisions set out in new subsection 474(4) or as prescribed under new subsection 474(5). A privative clause affects the extent of judicial review by both the Federal Court and the High Court of decisions covered by the clause.

[15] A privative clause is a provision which, although on its face purports to oust all judicial review, in operation, by altering the substantive law, limits review by the courts to certain grounds. Such a clause has been interpreted by the High Court, in a line of authority stemming from the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton (1954) 70 CLR 598, to mean that a court can still review matters but the available grounds are confined to exceeding constitutional limits, narrow jurisdictional error or mala fides.

[16] The intention of the provision is to provide decision-makers with wider lawful operation for their decisions such that, provided the decision-maker is acting in good faith, has been given the authority to make the decision concerned (for example, by delegation of the power from the Minister or by virtue of holding a particular office) and does not exceed constitutional limits, the decision will be lawful.

10 It is pellucid from the terms of s 474 and the surrounding material that s 474 was directed to the decision-making process found within subss 65(1) and 36(2) of the Act. Any suggestion that s 474 was directed only to sections of the Act providing for the exercise of a discretion and that it was not directed to sections (such as ss 65 and 36) concerned with the coming to a state of satisfaction, or not, as a jurisdictional precondition to the exercise of a power or the consequent fulfilment of a duty, is not arguable, and I would reject it. Plainly, of all the concerns of the Act to which s 474 was intended to be relevant, the decision in respect of the grant, or not, of a protection visa was the most prominent. From the surrounding material it is clear that the widest constitutionally valid available operation for a ‘Hickman construction’ of s 474 in conjunction with the balance of the Act was intended by Parliament. Any proposition that s 474 is not sufficiently clear to achieve to the fullest extent that which was identified by Dixon J in Hickman should, in my view, be rejected.

11 What is also clear from the terms of the new Part 8 of the Act and the surrounding material is that despite what, in other circumstances, might have been taken to be the clear words of subs 474(1), denying to any court the authority to deal with such decisions in any way, the words were not intended to carry that clear meaning. Indeed, in so far as the section, by the phrase ‘in any court’, sought to affect the authority of the High Court to examine such decisions, it could not do so by reason of s 75(v) of the Constitution. If authority, and thus jurisdiction, of the Federal Court were intended to be removed, words of the clarity found in s 476 would no doubt have been employed. As para [15] of the Explanatory Memorandum makes clear, the Parliament intended that the words of s 474 would carry the meaning and effect ascribed to similar words by Dixon J in Hickman and the line of succeeding High Court authority following and applying Hickman. This was plainly intended for the High Court, the Federal Court and the Federal Magistrates Court, to like effect. It is those cases to which one must turn to appreciate the effect (or lack thereof) of s 474 on the proper content of the jurisdiction of the Court under s 39B of the Judiciary Act.

12 I need not set out the well known passages in Hickman, supra at 614 to 618. Since Dixon J was discussing the role and power of the High Court under s 75(v) of the Constitution, he made it clear that it was impossible for Parliament to impose limits on executive power, but deprive the High Court of authority to restrain the invalid exercise of power in excess of those limits. To do so would be, impermissibly, to cut away the scope of s 75(v). However, Dixon J said Parliament may provide for the validity of the exercise of the power by reference to circumstances wider than the apparent limits to the power, absent the privative clause. Dixon J, as a matter of statutory construction, construed the privative clause in question (in terms similar to s 474), together with the balance of the legislation, as providing an indirect widening of the authority to the executive to act, not as providing for a narrowing of the authority to the judiciary to review the executive act. Dixon J also made clear that the interpretation of the privative clause and the balance of the legislation would have to be in accordance with the Constitution; that is, that the widening of the authority to the executive to act could not exceed Constitutional limits. (See also Shrimpton v Commonwealth (1945) 69 CLR 613 at 629-30.)

13 Returning to the Act, and approaching s 474 in the above manner, s 474 is to be understood as having a relationship with subss 65(1) and 36(2) governing the executive decision in question: the review under ss 414 and 415 of the decision of the delegate, involving the necessity to be satisfied, or not, of Australia’s protection obligations. Construing s 474, with ss 65 and 36, in the context of the evident purpose of s 474 displayed by the explanatory materials, the state, or lack, of satisfaction about whether Australia has protection obligations to a non-citizen is not invalid if it is made in a bona fide attempt to act in the course of the authority, relating to the subject matter of the legislation, and if it is reasonably capable of reference to the power given to the Minister, delegate or Tribunal, because Parliament says so. This is so even if, absent a provision such as s 474, the decision (that is the reaching of the state, or lack, of satisfaction and acting thereafter in accordance with the state, or lack, of satisfaction) would have been bad in law for jurisdictional reasons in accordance with principles expressed in cases such as R v War Pension Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; Craig, supra; Yusuf, supra and The Hetton Bellbird Collieries, supra, or for non-jurisdictional error. This would not be because Parliament has successfully prevented the courts from dealing with such vitiating flaws in a decision, so as to introduce a concept of non-reviewable jurisdictional error; but, rather, because Parliament has widened the authority of the executive in respect of the decision in question. That widened authority means that the state, or lack, of satisfaction, however reached, with whatever attendance there may have been to what, absent s 474, may have been irrelevant considerations, or with whatever misunderstanding of the right question to answer, whether capricious, arbitrary or lacking a probative foundation or a rational connection with circumstances present, or fanciful, is within the lawful authority and jurisdiction of the decision-maker to reach, so long as the decision was reached bona fide and in compliance with the other requirements laid down in Hickman. Of course, erstwhile vitiating factors of the kind just mentioned may be relevant in an enquiry as to whether the Hickman test has been satisfied. Thus, if a decision can be described as capricious or arbitrary, that, and the reasons why one can say that, might be very relevant to the question whether there was a bona fide attempt to exercise the power. But the question is whether it was bona fide, not whether it had some other defect which might found a claim of jurisdictional error absent a privative clause of this kind.

14 Dixon J used the phrase ‘not invalid’, not the word ‘valid’. In some contexts the difference in such language may reflect the distinction between a valid act and one which is made without attendance to some limit on the exercise of power, but which is nevertheless operative, though perhaps the decision-maker remaining open to mandamus (cf Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355). Here, as a matter of construction, it is plain that the Parliament intended no such availability of mandamus: para 474(1)(c). The use of the double negative does not, it seems to me, detract from the substance of the approach to such a clause mandated by Hickman. Section 474 widens the authority of valid decision-making in the way I have described, at least so that it is within authority for the purpose of judicial review. As to the notions of validation and validity, see R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 399; O’Toole v Charles David Pty Ltd (No 2) (1991)171 CLR 232at 275 (per Brennan J) and 286 (per Deane J, Gaudron J and McHugh J); Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 194 and 195 (perBrennan J); R v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415 at 418-19 (per Mason ACJ and Brennan J); and R v Metal Trades & Employers’ Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208 at 249 (per Dixon J).

15 On this analysis, no part of the jurisdiction of the Federal Court under s 39B of the Judiciary Act is affected. Section 39B applies in full, but to a decision whose only lawful boundaries are the matters to which I have referred. Mason CJ in O’Toole, supra at 250-51, in describing the effect of the relevant privative provision in the Conciliation and Arbitration Act 1904 (Cth), said:

Section 60 extends the limits of theaward-making power and governs the effect of its exercise; it does not define the jurisdiction of this Court or the Federal Court. [emphasis added]

16 To this extent, I reluctantly disagree with the jurisdictional analysis of Hill J in Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 477 at [10] to [13]. (Compare Richard Walter, supra, at 185-186.) Gyles J in NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 accepted in substance the submissions of the Commonwealth Solicitor-General which were to the above effect. I respectfully agree with the approach of Gyles J.

17 Mr Godwin and Mr Killalea, who appeared for the applicants NAAG and NAAH, respectively, submitted that s 474 should be construed more narrowly than would be required by the approach of Dixon J in Hickman. They put the submission that the Constitution, framed as it was on the assumption of the rule of law (Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 193 (per Dixon J) and see Abebe v Commonwealth; Re Minister for Immigration and Multicultural Affairs (1999) 197 CLR 510at [137]), did not permit the Commonwealth Parliament to grant to someone exercising the executive power of the Commonwealth the authority to make a decision that was arbitrary, capricious, lacking a rational connection with attendant circumstances, or fanciful. Their submissions also conformed with the proposition that the Parliament could not authorise the executive to make a legal error or ask the wrong question. To the extent that the outer boundaries provided for by Hickman and by the later High Court authorities were wider than this, they submitted that they were Constitutionally invalid. Thus, they said, conformably with s 15A of the Acts Interpretation Act 1901 (Cth), s 474 would be construed with ss 65 and 36, as setting the outer boundaries of the decision-maker’s authority no wider than as set out in the line of authority referred to in [6] above, of which Boucaut Bay Co, supra and Buck v Bavone, supra are exemplifications (which line of authority, it should be recalled, dealt with an approach to the construction of statutes), and at a point which would not permit the decision-maker to misunderstand the law or ask the wrong question. It seems to me, from the reasons of the members of the High Court in Hickman, and from the many succeeding cases in the High Court, that that proposition can only be made good in the High Court, or, at least, not before a single Judge of this Court. I am bound by those cases, which do not stand for these propositions. These submissions may well raise a central question directed at the heart of the approach underpinning Hickman. They are of great Constitutional significance in that they question the outer limits of Parliament’s powers in the authorisation of conduct of the executive. However, they are not questions for a single Judge of this Court to decide, in the face of the High Court jurisprudence on Hickman, which does not support such a limitation on Parliament’s power.

18 Mr Killalea and Mr Godwin also called in aid the Bill of Rights 1688. In Egan v Willis (1998) 195 CLR 424 at 429 Kirby J referred to the Bill of Rights as ‘part of the Constitutional heritage of Australia’. See also 9 Geo IV c 83 and Commonwealth and Central Wool Committee v The Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 at 463 (per Isaacs J).

19 Reliance was placed on Article 2 of the Bill of Rights:

That the pretended power of dispensing with laws or the execution of laws by royal authority, as it hath been assumed and exercised of late, is illegal. [emphasis added]

20 Article 2 dealt with the royal prerogative and the setting aside of Parliamentary authority by the royal prerogative. The question, here, is the modern Australian converse: the extent of authority of the Commonwealth Parliament to enact laws providing for the lawful extent of executive action. Article 2 may be a source of content for the underpinning rule of law upon which the Constitution is founded as part of an argument in favour of limiting the authority of Parliament in some fashion to a point more circumscribed than as stated in Hickman. However, as I have said, such a Constitutional question is not for me sitting as a single Judge of the Court.

21 To the extent that Article 2 assists in informing the well known principles of construction that fundamental common law rights will not be invaded or affected by legislation without the clearest intent, for example Coco v R (1994) 179 CLR 427, so much can be accepted. However, here there is a body of High Court jurisprudence about the meaning and content of privative clauses of this kind and, indeed, in these terms. The Parliamentary intent, by a drafting mechanism, was plainly to invoke the widest application of those words as previously found by the High Court. That, it seems to me, is what Parliament (not the executive or the Crown) plainly intended.

22 It is necessary to turn to Hickman and the later High Court cases to be clear, so far as one can be, about the extent of the boundaries of the authority created, as a matter of construction, by privative clauses such as s 474.

23 In Hickman, it should be recalled (and Mr Killalea, counsel for applicant NAAH, placed great store on this), the constitutional writ was made absolute. Dixon J made clear, at p 618, that the board did not have the authority to decide whether the circumstances were within the purview of the regulation. The privative clause decision only applied to ‘industrial matters relating to the Coal Mining Industry’. It was for the Court, not the tribunal, to decide whether the circumstances related to the coal mining industry. In that sense, a ‘jurisdictional question’ lay outside the privative clause and rested with the Court. However, one does not conclude from that, that Hickman stands for the proposition that any so called ‘jurisdictional question’, as discussed in cases such as Craig, supra and Yusuf, supra, is ‘outside the Hickman principle’, as was submitted. That simply ignores and misconceives, with respect, what Dixon J said he was doing. The extent of the privative clause is a matter for statutory construction in the context of the rest of the legislation in question. If the decision, to which the privative clause applies, can only be made in connection with the coal mining industry, or protection visas or decisions under the Act or some other subject matter, then, as a matter of statutory construction, the decision (with its boundaries of lawful execution widened by the privative clause) cannot go past the limit of the subject matter provided for. This might be termed ‘jurisdictional error on the face of the decision’, but it is no more than understanding the limit of the authority to make the decision, as a matter of statutory construction: R v Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Ltd (1947) 75 CLR 361 at 369; R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123 at 130; and R v Murray; Ex parte Proctor, supra at 395, 398-9 and 400.

bona fide

24 As to the content of the phrase ‘bona fide’ in Hickman, it is unnecessary to deal with a debate as to whether one can travel beyond the face of the record in question. A majority of the High Court in O’Toole, supra at 249-50 (per Mason CJ), 275 (per Brennan J) and 305 (per Dawson J, with Toohey J agreeing) held that one could do so (contra 287 per Deane J, Gaudron J and McHugh J). No attempt was made here by the applicant to prove a lack of bona fides outside an examination of the Tribunal’s reasons. It is not appropriate to attempt a comprehensive definition of the phrase ‘bona fide’. Dixon J in R v Murray; Ex parte Proctor, supra at 400, made it clear that the phrase involves an ‘honest’ attempt to deal with the subject matter conferred to the executive. Bad faith is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question. Finn J in Daihatsu Australia v Federal Commissioner of Taxation (2001) 184 ALR 576 at [36] referred, by way of exemplification, to the exercise of a power knowingly for an improper purpose or where no attempt is made, knowingly, to act conformably with duty. Heerey J in SBAP v Refugee Review Tribunal [2002] FCA 590 at [47] said that the phrase ‘bona fide’ involved a serious question involving personal fault on the part of the decision-maker going beyond error of fact or law. It must be clearly identified and proved. I agree. I also agree with the statements of principle made by Mansfield J in SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547 at [34] to [36]. It is unnecessary for me to express a view on the conclusion his Honour reached in that case after a careful analysis of the facts. To the extent it was submitted before me that his Honour’s approach was one which enabled objective bad faith to be found without the need for personal fault on the part of the decision-maker, I reject that submission. The principles applied by his Honour were, with respect, correct.

the decision relates to the subject matter of the legislation

25 In the context of the Act and a decision of the Tribunal reviewing a decision of a delegate about the issue of a protection visa requiring the reaching of a state, or lack, of satisfaction under ss 65 and 36, the decision must be directed to those matters such that it can be said to relate to that subject matter or, perhaps more widely, that it can be said to relate to the subject matter of the Act. The essence of the matter for Dixon J in R v Murray; Ex parte Proctor, supra at 400, was that there be an honest attempt to deal with the matter conferred 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.

the decision is reasonably capable of reference to the power given to the Tribunal

26 In the context of the Act and a decision of the Tribunal, as referred to in [22] above, this requires some degree of connection between the decision and the power. Kitto J in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) (1967) 118 CLR 219 at 252-53, in terms approved by Mason ACJ and Brennan J in R v Coldham, supra at 418, paraphrased this requirement as not on its face going beyond the power. Dixon J, in R v Metal Trades Employers’ Association, supra at 249, in connection with this requirement in that case said that the award must not on its face exceed the express authority of the Arbitration Court. See also R v Murray; Ex parte Proctor, supra at 400 (see [23] above). In one sense, this requirement is no more than ascertaining whether, on the face of what was done, the executive act was within the power given. In Hickman the act was in point of fact not within the coal mining industry and so what was done was not protected by the privative clause.

27 I do not read this third requirement as intended to mean that the limits of the power in question, absent the privative clause, are analysed (including notions of jurisdictional error of the kind discussed earlier) so as to find ‘jurisdictional error’ and so to find an absence of ‘reasonable capacity of reference’ to the power. To do so would be to drain the privative clause of all intended content and effect.

28 Thus, using the language of Dixon J in R v Murray; Ex parte Proctor, supra at 399-400, in discussing the ‘first step’, one needs to find an honest attempt to deal with the subject matter confided to the Tribunal (being the review under ss 414 and 415 of the Act and the question of its state, or lack, of satisfaction as to Australia’s obligations) and an honest attempt to act in pursuance of the powers of the Tribunal (being those thrown up by ss 414 and 415 of the Act) in relation to something that might reasonably be regarded as falling within its province (being the questions thrown up by ss 65 and 36).

29 The fact that this is somewhat repetitive in this context is a result of there being no serious question here that the decision of the Tribunal was not on its face authorised to undertake the review under ss 414 and 415 (for example, that it was a decision that could not be made by the Tribunal, but only by some other person or body, or which was not capable of reference to protection visas – in the way the decision in Hickman was not in fact one about the coal mining industry or in the way certain matters in industrial awards could not be finally determined by the Commission in R v Coldham, supra at 427-28). The relationship between, and the narrow compass of, the second and third aspects of Hickman can be seen in what Deane J, Gaudron J and McHugh J said in O’Toole, supra at 287:

The second and third conditions are related. Both involve objective tests. The requirement that the award relate ‘to the subject matter of the legislation’ will ordinarily be satisfied if the purported award deals with industrial matters. Putting to one side breach of the rules of procedural fairness, the requirement that the award be ‘reasonably capable of being referred to the power’ will be satisfied if, on the face of the record, it appears that the award was made by the Commission in purported exercise of the power of conciliation or arbitration conferred by the Act: see Amalgamated Engineering Union where it was said that the requirement is satisfied if ‘the purported exercise [of power] … is reasonably capable of being referred to the power (ie does not on its face go beyond the power)’. See also Australian Workers’ Union.

30 Some of the High Court authorities refer to ‘inviolable limitations or restraints upon the jurisdiction or powers of the Tribunal’: O’Toole, supra at274 (per Brennan J) and R v Coldham, supra at 419 (per Mason ACJ and Brennan J). None of the High Court authorities identifies any source of such inviolable limitations or restraints, beyond the two sources identified in Hickman: either (a) the product of the process of statutory construction: that a limit on authority, otherwise provided for in the legislation, is not affected, or only affected in some attenuated fashion, by the privative clause, so that the authority of the executive to act is bounded by the elements described in Hickman andby the residual limitations within the legislation, or (b) the operation of the Constitution. See also R v Metal Trades Employers’ Association, supra at 248 and 249, where Dixon J used the expression ‘imperative duties or inviolable limitations or restraints… imposed by the Act’ [emphasis added]; R v Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia, supra at 369; and see R v Murray; Ex parte Proctor, supra at 400.

31 Thus, applying the above to the matter before me, it is necessary to conclude, for the decision of the Tribunal to have been made without authority and so to be amenable to review under s 39B of the Judiciary Act, that it was not made in a bona fide attempt to exercise the powers of review under ss 414 and 415 and to reach a view about the satisfaction or lack thereof contemplated by subss 65(1) and 36(2), or that the decision did not relate to the subject matter of the legislation, or that it was not reasonably capable of reference to the power given to the Tribunal, or that the Tribunal has transgressed limits (if any) otherwise existing within the statute on the proper construction of the statute, including s 474, or that some limit imposed by the Constitution was breached. That is the framework which must govern the analysis as to whether the decision is valid.

Other Authorities in the Court

32 Before turning to the decision of the Tribunal within this framework, it is necessary to say something further about the decisions at first instance in this Court. I have already expressed agreement with the approach of Gyles J in NAAX, supra. It will be necessary in due course to consider the views of Tamberlin J in SBBK v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 565 in dealing with an argument in relation to the validity of the Tribunal’s decision. However, I should express my concurrence with the approach of Heerey J in Turcan v Minister for Immigration and Multicultural Affairs [2002] FCA 397 and SBAP, supra. I have the misfortune to disagree with Wilcox J, Merkel J and Finkelstein J in Boakye-Danquah v Minister for Immigration and Multicultural Affairs [2002] FCA 438, Walton v Ruddock [2001] FCA 1839 and Kwan v Minister for Immigration and Multicultural Affairs [2002] FCA 498, respectively, as to the operation of s 474. What I have said up to this point illuminates, I think, with the addition of what follows, the difficulties I have with what their Honours have said in those cases.

33 It may be that the limits of the ‘scope and content of the conditions in the Hickman principle have not been examined in any detail’ as was said in Kwan, supra at [12], where Mason CJ in O’Toole, supra at 249 was cited; but it should not be forgotten, with respect, that Mason CJ said in that case:

‘… The scope and content of the three provisos in the Hickman principle have not been examined in any detail in subsequent decisions of this Court.’

[emphasis added]

34 Hickman has been applied repeatedly by the High Court. It has been described as a ‘classical’ formulation: Coal Miners’ Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia Ltd (1960) 104 CLR 437 at 455 (per Menzies J). The limits of the authority of the decision-maker are to be ascertained in accordance with this jurisprudence of the High Court concerning Hickman, not by reference to the English or Australian law of jurisdiction in administrative law, whether in the so-called ‘wider’ or ‘narrower’ sense, worked out in cases dealing with authority of decision-makers granted by statutes not necessarily containing a privative clause, and, in respect of the English cases, in a unitary constitutional framework: cf Rubinstein Jurisdiction and Illegality (Oxford 1965) pp 85 ff.

35 In Kwan, supra, in particular, there is reference to the inability of a privative clause to oust the court’s jurisdiction in the case of ‘narrow jurisdictional error’: see Kwan, supra at [12]. Reference was made to Hockey v Yelland (1984) 157 CLR 124 at 130 (per Gibbs CJ); Public Service Association (SA) v Federated Clerks’ Union of Australia (1991) 173 CLR 132 at 141 (per Brennan J); and Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602 at 633-34 (per Gaudron J and Gummow J). The passage of Gibbs CJ in Hockey v Yelland, supra, referred to in Kwan, supra, whilst directed to one form of privative clause, was not part of any discussion of Hickman in connection with the exercise of Commonwealth legislative power. The passage of Brennan J from Public Service Association (SA), supra, likewise, was dealing with State provisions in a particular form. Brennan J was not directing himself to Hickman and was not stating (without referring to Hickman) that Hickman had no application to errors capable of being described as ‘jurisdictional’, absent the privative provision in question, such as s 474 here. The passage of Gaudron J and Gummow J in Darling Casino, supra, was not a view expressed by their Honours as to the content of Hickman, but reflected the standard construction of some privative clauses. If there is an inability of a privative clause to touch ‘narrow jurisdictional error’, that amounts to, or reflects, a limitation on the Commonwealth Parliament’s legislative power to widen the authority of the executive so as to invade such jurisdictional territory. In my respectful view, the passages cited do not provide support for such a proposition. If the privative provision, as a matter of construction, is one which is adequate to widen the authority of the executive to act lawfully in a way which would ordinarily be characterised as displaying ‘jurisdictional error’, there can be but one other source of such a limitation – the Constitution. The above passages are not authority for such a Constitutional limitation on the power of the Commonwealth Parliament. The High Court has applied Hickman on numerous occasions. These passages in no way diminish its authority and force.

36 The width of the grant of power by the Parliament to the executive sets the boundaries of the executive authority – its ‘jurisdiction’. Absent conflict with the Constitution, notions of common law jurisdiction, whether in a ‘wide’ or ‘narrow’ sense, in other statutory contexts, appear to me to be at the very best attenuated, if not irrelevant. The ‘jurisdiction’ of the executive (here the Tribunal) is delimited by a process of construing the provision (here s 474), with any other relevant provision of the Act, in the light of the views of Dixon J in Hickman. Once that task is done, one has the ‘jurisdiction’ of the Tribunal as laid down by Parliament: see CFMEU v Australian Industrial Relations Commission (1999) 93 FCR 317, 347-49 at [88] to [90]. As Gaudron J and Gummow J said in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 at [47] ftnt 31:

See, with respect to privative clauses, R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, in which the privative clause there in question was construed as allowing challenge only where officers of the Commonwealth had exceeded their jurisdiction provided in the relevant statute or in the Constitution itself. See also Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 631-632 per Gaudron and Gummow JJ.

[emphasis added]

37 If there is a notion of ‘narrow jurisdiction’ attending any act of the Commonwealth executive which cannot be affected, or derogated from, by the Commonwealth Parliament, however hard it tries, and which is enforceable in an exercise of federal jurisdiction, that must come from within the Constitution, whether s 75(v), or elsewhere. No High Court judgment has as yet identified it. Until one does, I am bound by Hickman and later cases in the High Court in the manner I have identified.

38 As I have said earlier, as a matter of construction of the Act, it is plain that what Parliament intended was the widest possible application of the approach of Dixon J in Hickman in relation to any decision of the Tribunal reviewable by the Court under s 39B. Here, it is only necessary to deal with the inter-relationship between s 474 and ss 65, 36, 414 and 415. The correct approach, in my view, is as I have discussed in [31] above.

The Decision in NAAG and the Arguments

39 The first argument of the applicant was that s 474 is invalid for purporting to oust the judicial power of the Commonwealth which is vested in Chapter III courts. I reject this for the reasons Gyles J rejected the substantially identical submissions in NAAX, supra. Section 474, construed and approached in the way I have, does not oust or usurp the judicial power of the Commonwealth. It extends the authority of the executive.

40 Section 474 is not invalid as being inconsistent with s 75(iii) and/or s 75(v) of the Constitution. Again, this arises from the approach which I think is appropriate to s 474 given the long line of High Court authorities.

41 Further, for the reasons I have given, any limitation upon the power of the Parliament to widen the authority of the executive to the outer boundaries of non-capricious, non-arbitrary, rational and non-fanciful executive action, is not a matter for a single Judge of this Court.

42 The submission was put that s 474 is not effective to deny review of a decision where the ground of review is ‘constructive failure to exercise jurisdiction’ or ‘excess of jurisdiction’. I reject this. As I have indicated, this submission presupposes some core jurisdictional notion untouchable by Parliament in a way narrower than allowed by the widening of authority conformable with Hickman.

43 In elaboration of this jurisdictional attack the applicant NAAG has made an attack on the reasonableness of a number of findings of fact, which facts are said to be jurisdictional facts. The following matters are put in paras 4(a), (b) and (c) of the amended application:

4(a) the RRT’s finding that the applicant was not a Christian was a finding which it could not reasonably have reached, and this finding was critical to the ultimate conclusion of the RRT that the jurisdictional fact of it being satisfied that the applicant had a well founded fear of persecution for a Convention reason was not made out.

(b) the RRT’s finding that the applicant’s rape in detention was an ad hoc act was a finding which it could not reasonably have reached, and this finding was critical to the ultimate conclusion of the RRT that the jurisdictional fact of it being satisfied that the applicant had a well founded fear of persecution for a Convention reason was not made out.

(c) the RRT’s finding that the applicant was not politically active previously was a finding which it could not reasonably have reached, and this finding was critical to the ultimate conclusion of the RRT that the jurisdictional fact of it being satisfied that the applicant had a well founded fear of persecution for a Convention reason was not made out.

44 The applicant NAAG then sought to identify ‘relevant material’ ignored by the Tribunal in an attempt to show jurisdictional error of the kind discussed in Yusuf, supra. The following matters are put in paras 5(a) to (d) of the amended application:

5(a) The RRT ignored the material which suggested that the applicant was commonly known by the name Mariam

(b) the RRT ignored the applicant’s claims that she had previously been politically active

(d) the RRT ignored the applicant’s assertion that she had been persecuted in the past by reason of an imputed religious profile adverse to the Muslim religion

45 The applicant NAAG then sought to identify matters exhibiting a constructive failure to exercise jurisdiction. The following matters are put in paras 6(a) to (d) of the amended application:

6(a) The applicant repeats particulars 5(a) to 5(d)

(b) The RRT erred in assessing her claims of past persecution for walking and talking with men in public as being the operation of laws of general application.

(c) The RRT failed to determine whether the penalty for breaching these laws would offend the standards of civilised nations.

(d) The applicant repeats particulars 4(a) to 4(c)

46 Whether or not the matters in 4(a) to (c) are properly called ‘jurisdictional facts’, or whether the matters in 5(a) to (d) are, in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 and Yusuf, supra, relevant considerations required to be taken into account, and whether the matters in 6(a) to (d) reflect a constructive failure to exercise jurisdiction, absent s 474, need not be dealt with. For the reasons which I have given, the only proper approach is to ask whether the Tribunal bona fide attempted to exercise the powers of review under ss 414 and 415, whether what it did related to the subject matter of the legislation and whether what it did was reasonably capable of reference to the power given to it. The question of inviolable rights can only be a result of the process of statutory construction of s 474. On the proper construction of ss 474, 65, 36, 414 and 415, I see no relevant inviolable limitation here; however, I will return to this question at [54] and following, below. Following Gyles J in NAAX, supra, as I do, there is no relevant Constitutional impediment.

47 Thus, the validity of the Tribunal’s decision is to be tested against these benchmarks, not those claimed in the application and having their source in jurisdictional analysis assuming s 474 not to be present. The applicants asked me to deal with this matter on the hypothesis that I am wrong in relation to the application of s 474. On reflection, I do not think I should do this. I do not think that it would be a proper exercise of judicial power to set out a discussion of what the parties rights would, or might, be on the assumption of a different governing legislative framework. I would have to hypothesise what I find not to be the law and then give, in a sense, an advisory opinion about it. If I be wrong in relation to the law, I will be corrected on appeal.

48 The first issue is whether the decision was made bona fide in the exercise of the powers of review. It was submitted in NAAG that it was not. I was asked to draw this inference from the terms of the decision. Mr Godwin sought to call in aid all the criticisms of the decision relevant to the jurisdictional attacks otherwise made on the decision in order to characterise the decision as so marked by error, of an egregious nature, with convenient findings of fact on credit, so as to display a less than honest attempt to deal with the claims.

49 I reject this attack. The decision making in NAAG does not, I have to say, leave me confident that the factual conclusions are correct or reliable. However, whilst it is not my task to reach a state of satisfaction as to the correctness or reliability of the fact finding. I do not think that the execution of the task of review was such as to lead to the conclusion that it was not undertaken in a bona fide way.

50 The Tribunal accepted that the applicant NAAG experienced a number of serious matters. The applicant was a female university student who had been forced to leave a university in Iran because of her resistance to Islamic dress and behaviour codes. Her room-mate at university was an opposition political supporter. The applicant participated in the 1999 student demonstration in Tehran in which she was injured. She was not accepted into Tehran University because of adverse reports from her former place of study. She participated in the 2000 student demonstration in Tehran at which she distributed pamphlets containing the protestors’ demands. She was arrested and detained for two days in gaol where she was brutally sexually assaulted by gaolers who referred to her political activity and threatened her, as well as assaulting her. However, the Tribunal was not satisfied that there was a real chance of persecution if she returned, because it found that the authorities were not, and would not be, interested in her on her return, as long as she was not politically active, which it found (contrary to her evidence) she would not be. These findings involved rejecting her evidence about her family providing bribes to have her released from prison, about her house being raided by the authorities and about her mother being assaulted.

51 I do not propose to set out exhaustively all the findings challenged and the reasons for such challenge. It suffices at this point to say that I have examined the reasons of the Tribunal carefully and the arguments that a number of critical factual findings were unreasonable in the sense discussed in Eshetu, supra, and have come to the firm view that the reasons and the attacks on the findings do not disclose an approach of the Tribunal which lacked bona fides or honesty, intellectual or otherwise. Whether they disclose a defensible body of factual findings may be open to doubt, but that is not the question.

52 Plainly the decision related to the Act and to the review under ss 414 and 415 of the Act of the decision of the delegate.

53 Further, the decision was reasonably capable of reference to the powers under ss 414 and 415 of the Act and the role given to the Tribunal to review decisions of the delegate under the Act, in the sense I have referred to above.

54 The last paragraph, is subject to one possible qualification. This qualification is also a matter which relates to the question of inviolable limitation referred to in [46] above. The task to be undertaken by the Tribunal is to review the decision of the delegate and attend to the claims of the applicant. That (at least absent s 474) is the statutorily mandated task of the Tribunal: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 and W396/01 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 103.

55 It was submitted by Mr Godwin that here the Tribunal failed to examine all of the claims of the applicant NAAG. He said that her claims were as recounted by the Tribunal in its reasons, as follows:

My claims are based upon my political beliefs, my opposition to Islam, the discrimination against me as a woman and the abuse of our rights under Islam, my non-acceptance of the social cultural, and moral restrictions imposed by Islam, the dangers that face me because of my husband’s political troubles, my Christian faith, and the difficulties my mother faces because of my problems in Iran.

56 He submitted that the Tribunal had failed to deal with opposition to Islam and the non-acceptance of the social, cultural and moral restrictions imposed by Islam. This being so, it was submitted, the effect of s 474 did not protect a decision of the Tribunal in which there had been a failure to complete the task required of it.

57 In examining cases such as Htun, supra, and W396/01, supra, and the failure of the Tribunal in those cases to complete the task statutorily mandated by the Act, and in particular by ss 414 and 415, care must be taken not to transpose the reasoning in those cases without due regard being paid to s 474 and its effect. Those cases stand for the proposition that (at least absent s 474) the mandated task of the Tribunal is to look at all integers of the applicant’s claim and to ask and answer the correct question as to whether a well-founded fear of persecution was present on the basis of all the material before the Tribunal and with the degree of speculation required by the Act: the essential task of the review. However, a privative clause may protect against a refusal or failure to exercise power as much as an excess of jurisdiction: Darling Casino v New South Wales Casino, supra, at 630-31 per Gaudron J and Gummow J, where their Honours said:

In that situation it treats the refusal or failure as if there were no obligation to exercise the power in question. And by withdrawing the jurisdiction of the Court’s to review, it operates to reduce the scope of the decision-maker’s duty. In both situations the privative clause operates in effect to recast the legislative provisions which confer the power in question and which condition its exercise.

[emphasis added]

58 It is a question of construction, whether, in the face of a bona fide attempt to exercise the power of review provided for by ss 414 and 415, the Tribunal is taken to have failed to complete its jurisdictional task under sections such as ss 414 and 415 by failing to deal with one aspect of a claim which can be said to be not just a matter of evidence but one way of putting the claim for asylum. In Htun, supra, the Tribunal did not deal with a claim for imputed political opinion based on the appellant’s personal associations in Australia with members of a military organisation which the Burmese authorities viewed as terrorist in nature. The Tribunal had dealt with the claim of the appellant based on his political activity in Burma and some political activity in Australia. I approached the matter as a failure to take into account a relevant (that is required) consideration. In Htun, as in Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196, I distinguished failing to deal with one way of putting the claim (as such, an ‘integer’ of the claim and so a relevant consideration) from dealing with the claims but failing to direct attention to evidence. Merkel J approached the matter somewhat differently, though with the same result, and in a way approved by a later Full Court in W396/01, supra. Merkel J said that the Tribunal had failed to step back from the particular grounds and consider the material in its entirety.

59 For either of these approaches to remain a valid basis for a jurisdictional attack on a decision of the Tribunal with s 474 in the Act, it must appear, or be able to be characterised, as the failure of the Tribunal to undertake an essential component of its task which it is obligated under the statute to undertake, taking into account the effect of s 474. For my part, I cannot so construe ss 414, 415 and 474, if there has been displayed, as I think there has been here, a bona fide attempt (albeit inadequate) to undertake the task given by ss 414 and 415. In those circumstances, I do not see that a failure of the Tribunal to undertake the task in the manner provided for by Htun, supra or W396/01, supra, is inviolable in the sense discussed in R v Coldham, supra. In SBBK, supra, Tamberlin J concluded that the Tribunal had committed a fundamental error of principle by failing to address the central question of whether the applicant was a member of a particular social group comprised by ‘women in Iran’ or ‘divorced women in Iran’. In the absence of such a consideration, his Honour held that the Tribunal could not decide whether, as a member of a social group, there was any real chance that if returned to Iran she would be persecuted for reasons of membership of that group. His Honour stated, at [44]:

In my view, the failure to address these essential questions comes within the exceptions to the principles laid down in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616 ff. See also R v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 297 and Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602. It is clear from these and other authorities that a privative clause will not usually protect a decision that exceeds constitutional limits, or a decision that is made in breach of a specific, express or indispensable precondition to jurisdiction or exercise of power, nor will the privative clause serve to validate a decision where there has not been a compliance with a condition that is essential to the exercise of jurisdiction in accordance with statutory terms. These principles underpin the enactment of s 474 so that, in my view, the protection afforded by s 474 of the Act does not apply in the present case.

60 I need not deal with my views as to the correctness of his Honour’s conclusion, except to say that to the extent that his Honour was identifying a process of statutory construction to ascertain the reach of the validation process effected by s 474, I agree with him. I have, however, difficulty with the proposition that a legal error in the approach to identifying the right question to ask becomes a fundamental error of principle leading to the invalidity of the exercise of the relevant power, if Parliament has, by s 474, sought to validate decisions, and thus define authority, in the way it has. Validation or grant of authority is not, it seems to me, restricted to what otherwise would be vitiating factual error, but also legal error. If some legal error is to remain outside the reach of s 474, the process of statutory construction requires the identification of the statutory duty or obligation left untouched by s 474. I have difficulty in seeing how a misdirection in law, even an important one, or asking the wrong question, falls into such a category in the light of the intended reach of s 474. Of course, conformably with what I have set out above, the statutory duty or obligation may be left untouched by s 474 by reason of the operation of the Constitution. However, the identification of that basis for any residual inviolable right is, as I have said, not a matter for me.

61 It is sufficient to say here that even if it be the case that the Tribunal has overlooked one aspect of how the applicant put her claim, the intention of Parliament, it seems to me, was to widen the authority of the Tribunal by making valid a decision bona fide undertaken in exercise of the power of review under ss 414 and 415 and which is reasonably referable to that power in the manner I have described (which includes the reduction of the Tribunal’s duty to deal with the way the applicant puts his or her claim). That authority will be lawfully executed if a bona fide attempt is made to exercise it. It is not required that the attempt to exercise the power be complete, as it was required to be before the introduction of the provision widening authority.

62 In any event, I am not persuaded that the Tribunal has not dealt, albeit briefly and obliquely, with all the claims of the applicant. The findings about her likely lack of political activity and that she will not proselytise her new found Christian faith, together with the statement by the Tribunal that all the evidence has been considered as a whole, may have led to the decision being vulnerable under the approach of Merkel J in Htun, supra and the Full Court in W 396/01, supra, but I do not think that there has been such a fundamental failure to deal with the claims of the applicant. Thus, I do not think that this complaint can successfully found an argument that the decision is not reasonably capable of reference to the power given to the Tribunal. Further, even if the approach of Tamberlin J in SBBK, supra be correct, I do not think that the approach of the Tribunal supports a conclusion that the decision was made in breach of an ‘inviolable’ limitation in the Act, or in breach of ‘an indispensable precondition to jurisdiction or exercise of power’, or that the decision reflects a lack of ‘compliance with a condition that is essential to the exercise of jurisdiction in accordance with statutory terms.’

63 For the above reason the application should be dismissed with costs.

I certify that the preceding sixty three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated: 5 June 2002

Counsel for the Applicant:	Mr D H Godwin

Solicitor for the Applicant:	Ian D Graham & Associates

Counsel for the Respondent:	Mr T Reilly

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	16-17 May 2002

Last submissions received:	4 June 2002

Date of Judgment:	5 June 2002

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