FEDERAL COURT OF AUSTRALIA

WAGL v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 952

Migration Act 1958 (Cth) s 474(2), 475A, 476

Judiciary Act 1903 (Cth) s 39B

R v Hickman, Ex parte & Clinton (1945)70 CLR 598 followed

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

O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 referred to

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

Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 referred to

Walton v Minister for Immigration & Multicultural Affairs [2001] FCA 1839 referred to

NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281 referred to

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

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

Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397 referred to

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

SAAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 101 referred to

Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438 referred to

Kwan v Minister for Immigration & Multicultural Affairs [2002] FCA 498 referred to

Awan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 594 referred to

WAGL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W127 of 2002

RD NICHOLSON J

30 JULY 2002

PERTH

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

1                     The applicant brings an application seeking an order for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 April 2002.  The decision was to affirm the decision of a delegate of the respondent not to grant to the applicant a protection visa, class XA. 

Background circumstances

2                     The applicant arrived in Australia on 25 March 2001.  He claimed to be from Iran and that he had left there because he saw injustice in his study and sport.  Additionally, he claimed to have participated in a demonstration against the salty water in Abadan and, a summons having been sent for him, he had escaped. 

3                     On 24 August 2001 he made a further claim that he could not go back to Iran because he had changed his religion and was a Christian. 

4                     His application for a protection visa was lodged on 10 October 2001. 

5                     The adverse decision of the delegate against him was made on 12 November 2001.  His application for review to the Tribunal was lodged on 19 November 2001. 

6                     On 25 December 2001 the applicant was baptised into the Catholic Church. 

Tribunal’s reasons

7                     In its findings and reasons the Tribunal accepted that the applicant was an Iranian national.  However, it did not accept that he had been expelled or was given a fail mark at school for reasons of being an apostate or troublemaker.  It found on the evidence before it that the applicant was with a football team until August 2000 and he had left it to come to Australia.  It also found he left Iran legally on a valid passport issued in his name.  It found that if the Iranian authorities had wanted to detain him for apostasy or for attending a water protest they would have been able to prevent him from leaving Iran at that time. 

8                     As to the participation in the water demonstration, the Tribunal found that on the basis of his description of a very light participation in the event (the shouting of slogans) and on the basis of his not having been any ring leader, he would be of no interest to authorities in relation to that episode.

9                     The Tribunal accepted the applicant’s early claim to the effect that he is a Muslim although it accepted that he was not a particularly devout Muslim.  Some Muslim prayers that were discovered in his possessions were found to belong to him. 

10                  The Tribunal found itself overwhelmingly dissatisfied with the applicant’s claims concerning his exploration of Christianity in Iran.  It did not accept that his recent baptism was evidence of a sincere embracing of the Catholic faith.  Rather, it concluded it was a ploy to make a Convention-related case where one had not previously been conceived.  It concluded further that in the event of the applicant returning to Iran he would abandon Catholicism as easily as he entered into it.  It considered that the applicant had manufactured his case by being baptised into the Catholic faith.  On the independent evidence regarding scarcity of convictions for apostasy in Iran, the Tribunal found the chance of the applicant being punished over his actions in Australia were very remote.

11                  The Tribunal also concluded on the independent evidence before it that his asylum bid in Australia would not be held against him by authorities in the event of his return to Iran. 

12                  As to the applicant having been dumped by his football team, that did not give rise to any Convention-related issue and did not constitute persecution. 

13                  It found the applicant to be an unreliable witness.  It was not satisfied he faced a real chance of Convention-related persecution and that his claims to have fear of such were not well-founded. 

Grounds of application

14                  The application did not specify any grounds but rather referred to a later submission to be filed.  On the day of the hearing the applicant faxed to the Court a list of five items which he said gave rise to legal error in the reasoning of the Tribunal.  They were:

(1)               The Tribunal had failed “to make independent considerations” in relation to his sacking from the football team, his exile in Isfahan and the water protest.

(2)               The Tribunal had made some items in his property as a base for its findings where as it should have relied on his statements (this is a reference to the Muslim prayers).

(3)               The Tribunal had been wrong to say that he was thrown out of the football team because of the wearing of the Christian cross; rather he had said that he had drawn the cross shape on his body when he had made a goal. 

(4)               The Tribunal had no basis for finding that he had misled witnesses.

(5)               The Tribunal had no basis for rejecting his faith in Christianity. 

15                  The applicant appeared unrepresented.  His grounds are therefore formulated in that context. 

Absence of identification of error of law

16                  In the grounds which the applicant has drawn no error of law or procedure is disclosed.

17                  The grounds relied upon as now formulated before the Court are in the nature of challenges to findings of fact.  There is nothing in them capable of showing that the findings of fact were not open to the Tribunal and not lawfully made. 

18                  The central problem for the applicant was that he was not believed by the Tribunal.  His credibility was not accepted.  There is nothing which indicates that the findings made were not supported by the material before it or were made after not giving the applicant proper opportunity to address the concerns felt by the Tribunal member on the material before him.  To the contrary there is evidence to support the findings and to establish that opportunity was given to the applicant. 

19                  In those circumstances there is nothing before this Court that would be capable of sustaining review by the Court if it had jurisdiction to so act. 

Jurisdiction to review

20                  In any event, the decision of the Tribunal is a “privative clause decision” under s 474(2) of the Migration Act 1958 (Cth) (“the Act”).  The combination of ss 475A and 476 of the Act limits the jurisdiction of this Court, relevantly, to that conferred by s 39B of the Judiciary Act 1903 (Cth).   For this Court to be able to grant relief, there must be errors identified as such as to attract relief under that section.  In R v Hickman, Ex parte & Clinton (1945)70 CLR 598 at 616, Dixon J stated:

“… 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 its limits, so long as done bona fide and bearing on its face every appearance of an attempt to act in the course of its authority, shall not be regarded as invalid.”

21                  In this judgment Dixon J succinctly stated the three pre-conditions to the valid exercise of decision-making powers to which such a clause applies:

(a)                    the decision-maker is required to have made “a bona fide attempt to exercise its power”;

(b)                    the decision “relates to the subject matter of the legislation”; and

(c)                    the decision “is reasonably capable of reference to the power given to” the decision-maker.

These three conditions, known as the “Hickman conditions” or “Hickman grounds of review”, have been restated on many occasions in the High Court:  R v Coleman; Ex parte Australian Workers’ Union (1983) 153 CLR 415; O’Toole v Charles David Pty Ltd (1991) 171 CLR 232; Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168; and Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602.

22                  The operation of these principles in relation to s 474 of the Act has been accepted and applied in a number of decisions handed down by single judges of the Federal Court.  For an early statement of the principles, see Walton v Minister for Immigration & Multicultural Affairs [2001] FCA 1839 at [14] – [33]; more recently see NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281 pars [11] – [31] (Tamberlin J); NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 pars [13] – [33] (Gyles J); Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311 at [33] – [51] (Hill J); Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397 pars [38] – [45] (Heerey J); NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 (Allsop J).  Differing views as to the extent of review available under the Act have been expressed in, eg, SAAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 101 (Mansfield J), although the application was dismissed; Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438 (Wilcox J); Kwan v Minister for Immigration & Multicultural Affairs [2002] FCA 498 (Finkelstein J); Awan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 594 (North J).  The respondent has appealed to the Full Court against each of the last three decisions and submits that the approach to Pt 8 in those decisions is incorrect and should not be followed.

23                  It is not necessary here to resolve the differing views as to the effect of the privative clause to determine the current application.  Even if the privative clause does not exclude matters such as jurisdictional error, there is nothing here to enliven such jurisdiction. 

24                  Likewise, there is nothing to enliven the Hickman conditions as set out in the dicta of Dixon J above.  It cannot be claimed that the decision was unrelated to the subject matter of the Act or that it was not reasonably capable of being referred to the power under which it was made.  There is no scintilla of evidence that the exercise of power by the Tribunal was other than a bona fide attempt.

25                  I am therefore also of the view that no matter how the Hickman conditions are understood in terms of the authorities above referred to, there is nothing to activate them in the circumstances raised by the applicant.

Conclusion

26                  It was for these reasons that at the hearing I considered that the application should be dismissed.

Associate:

Dated:              31 July 2002