FEDERAL COURT OF AUSTRALIA

QAAD of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCA 1038

MIGRATION - privative clause decision - refusal of protection visa by Refugee Review Tribunal – matter remitted to tribunal by single judge of the federal court – whether tribunal obliged to consider matter afresh – whether failure to consider matter afresh constitutes jurisdictional error or alternatively, failure to give bona fide consideration to matter – whether unclear which of previous findings Tribunal intended to adhere to – whether circumstances give rise to a  ‘jurisdictional factors’ question  - whether tribunal required to ask ‘what if I am wrong’ in every case and where no real doubt 

STATUTORY INTERPRETATION - interpretation of privative clauses

Statutes

Migration Act 1958 (Cth) ss 91S, 474, 424

Cases

Awan v Minister for Immigration and Multicultural & Indigenous Affairs [2002] FCA 594 Cited

Minister for Immigration and Multicultural and Indigenous Affairs v Rajalingam [1999] FCA 719 Applied

NAAV v Minister for Immigration and Multicultural & Indigenous Affairs and Turcan v Minister for Immigration and Multicultural Affairs [2002] FCAFC 228 Applied

R v Hickman; Ex parte Fox (1945) 70 CLR 598 Applied

Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 167 Applied

QAAD OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Q57 of 2002

KIEFEL J

30 SEPTEMBER 2002

BRISBANE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondents’ 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                     On 8 January 2001 the Refugee Review Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa.  Drummond J ordered that the Tribunal’s decision be set aside and referred the matter to the same Tribunal member for further consideration.  On 20 February 2002 the Tribunal again affirmed the decision not to grant a protection visa.  The applicant seeks an order setting aside or quashing that decision.

2                     The applicant claimed to be a citizen of the Federal Republic of Yugoslavia.  He arrived in Australia in April 1999.  The Tribunal, in its firstmentioned decision, accepted that he was who he claimed to be, that he was born in Decani in the province of Kosovo, Serbia and that he was 18 years of age.  The Tribunal accepted his claim that his family home was blown up in December 1998 and that his father had been injured in the explosion.  It also appeared to accept his account of his family’s movements after that incident, to Pac near Decani, then to Ulcinj in Montenegro and then into Albania. 

3                     The applicant’s claims to refugee status were based upon persecution of his family on account of their religion, Catholicism, and because they were regarded as Serbian collaborators and therefore an enemy of Muslims in the area where they resided.  The applicant produced a number of documents but the Tribunal expressed concerns about their authenticity and about the connexion between the bombing of their home and the commencement of hostilities.  It had some doubts apparently concerning his credibility.  The Tribunal largely based its decision upon the changes which had occurred in his country since the applicant’s departure.  It also had regard to the absence of any claim that he was seen to be a Serbian collaborator and concluded that he did not face a real chance of being persecuted for his religion or his Albanian ethnicity should he return to Yugoslavia.

4                     Drummond J expressed concern at the lack of findings made by the Tribunal on the applicant’s claims that he and his family had been the target of religious and ethnic persecution, except for expressing its view about the bombing incident.  It did not even make findings about his religion or his ethnicity.  It had focussed its reasoning upon the authenticity of three documents put forward by the applicant to support his claims.  It gave two reasons for not accepting them as genuine.  His Honour considered that the second reason, namely that the documents had all been created in the same manner and at the same time, was unassailable.  His Honour did not however, consider that it was then open to the Tribunal to use its findings about the documents to answer the claims otherwise made by the applicant, and which depended upon an assessment of other evidence.  His Honour held that the Tribunal had made an error of law because it ignored that material, which was relevant.  His Honour considered that an assessment of that evidence may have affected the Tribunal’s decision about the changed circumstances in Kosovo.  There were other errors of law identified by his Honour.  The Tribunal had not asked itself the question “What if I am wrong” when it was in a state of uncertainty, and it had misunderstood the relationship between the relocation principle and the qualification of reasonableness.  The matter was remitted to the same Tribunal member for further consideration. 

5                     In the Tribunal’s further reasons it referred to the applicant’s claims as they were outlined in the earlier reasons, which it attached.  It said that at the hearing it had questioned the applicant on some specific issues and set out the responses

6                     The applicant told the Tribunal on this occasion that he and his family had left Decani for Montenegro in June 1996.  His father was unhappy and had been involved in  arguments that arose from the fact that the majority of people in the town were Muslims and the family was not.  They were criticised for being Christians. They left the land and house but they were not “kicked out” of the village.  In the two years they spent in Ulcinj, Montenegro, the applicant worked in a bakery.  They planned to stay in Ulcinj.  They took a risk in returning to Decani to sell their property.  They arrived there early in the morning and a bomb went off at about 7.00 am, whilst his father was inside the house.  The applicant said that the bomb meant “if you come here, here is what will happen”.  He took his injured father to the Decani hospital, then to Ulcinj and then to Albania.  They did not think Ulcinj was safe enough and that someone was “after them”.  In April 1999 they left Albania.  The Tribunal was also advised that the applicant’s father had been shot since the applicant had been in Australia.  The incident was said to have arisen out of a blood feud.  Further documents were submitted, including one from a person who confirmed that the applicant’s father and another person had been shot and wounded in Albania.  He mentioned the blood feud again and said that it would take many years to “sort out” the dispute. 

7                     In its “Findings and Reasons” the Tribunal limited its consideration to “claims and relevant findings for those elements where there was some dispute arising out of the appeal to the Federal Court and when the Court has given directions.  Previous findings on other matters stand”.  The Tribunal gave the applicant the benefit of its doubt and accepted that he was a Catholic and that he and his family had been the target of religious harassment in Decani before they left the area in June 1996.  It did not however accept that it amounted to persecution.  The criticism and harassment they received for being Catholics did not constitute serious harm.  The Tribunal did not accept that the bomb was linked with persecution.  The applicant’s story was inconsistent in one respect and it had never been claimed that it was associated with the war in Kosovo “irrespective of the date which one wishes to chose [sic] for its beginning”.  (This I take to be an answer to a criticism raised by the Court in the earlier decision).  The Tribunal observed that, on the applicant’s version of events, the bomb was set to go off on the very morning when they returned.  That would have required them to announce their return and it had never been suggested that the people in Decani knew of it.  It was unclear why the bomb was planted, but it did not accept the asserted reason.

8                     The Tribunal noted that the issue of blood feuds loomed larger as the case progressed. The Tribunal doubted the existence of such a feud, or that any revenge against  the applicant’s father was sought because of a Convention reason.  It had previously been suggested that the feud emanated from his family allowing their house to be used by Serbs whilst they were in Ulcinj, but at the second hearing the applicant said that it remained empty.  If the Tribunal was to assume that a blood feud existed, it was the father who was the person targeted.  Section 91S of the Migration Act 1958 (Cth) had the effect that a relative of a person targeted for a non-Convention reason is not thereby to be taken as a person persecuted for Convention reasons.  The Tribunal also found that his residence from 1996 to the end of 1998 was Montenegro, a republic of the Federated Republic of Yugoslavia.  The Tribunal did not consider that he would have a real chance of persecution if he returned to Ulcinj.

9                     The applicant contends that the Tribunal was obliged to consider the matter afresh and did not do so and that this constitutes a jurisdictional error.  Alternatively, it submits that this approach shows that it failed to give bona fide consideration to the matter.  The applicant submitted that the Tribunal failed to give weight to the evidence that Catholic Albanians were at risk if perceived to be Serbian collaborators.  The applicant also submitted that the Tribunal failed to properly apply the question “What if I am wrong”.  It was left to speculate as to the reason for the bombing and should have asked itself whether the bombing was for a Convention reason.  The Tribunal failed to properly assess the relocation issue, given that the applicant was only in Montenegro temporarily and was seeking refugee there, it was submitted.  The Tribunal wrongly held the applicant not to be a refugee even if his father was the target of persecution and misapplied s 91S in that regard.  Lastly, it was submitted that the reasons were inadequate, but this would appear to be a mere restatement of the first mentioned ground. 

10                  The general allegation of a lack of good faith on the part of the Tribunal, was not maintained in oral argument.  It was not claimed that the Tribunal was biased in fact towards the applicant or his case.  The submission went only so far as to suggest that it might be possible to conclude that the Tribunal brought a closed mind to the matter because it did not hear the matter afresh.  The process undertaken by the Tribunal would not seem to me to provide a basis for acceptance of even that possibility.  It continued its inquiry.  In doing so it revisited the claims and considered them in light of the evidence, including the further evidence and further claims.  There is no basis for a conclusion that it lacked good faith. 

11                  It was not in dispute that the Tribunal’s decision is a “privative clause decision” within the meaning of s 474(2) of the Migration Act.  Section 474(1) provides:

“474    Decisions under the 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

(c)        is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

12                  The applicant submitted that the court had power to provide the relief sought and to make orders setting aside or quashing the decision and remitting it for further hearing, on account of jurisdictional error and notwithstanding the presence of the privative clause.  The applicant’s principal argument in this respect had regard to the first ground referred to above, namely the failure, on the part of the Tribunal, to consider the matter afresh and identify which of its findings stood and which did not.  It was submitted that the ‘fundamental requirement” of s 424A(1) of the Act was not met.  That subsection provides:

424A   Applicant must be given certain information

(1)       Subject to subsection (3), the Tribunal must:

(a)        give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review;  and

(b)        ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review;  and

            (c)        invite the applicant to comment on it.”

13                  The applicant placed reliance upon the decision in Awan v Minister for Immigration and Multicultural & Indigenous Affairs [2002] FCA 594. 

14                  In my view nothing in the Migration Act prevented the Tribunal from taking the course it did on the second consideration of the matter.  The applicant complains that it was unclear which of its previous findings the Tribunal was intending to adhere to.  But this overlooks the fact that the reason it was remitted was that there had been only a limited number of findings made.  The Tribunal, it seems to me, did consider the matter by making the necessary findings on the evidence which had been put forward on both hearings.  Although it stated that those previously made stood, this did not amount to much more than attaching the applicant’s prior claims.

15                  The argument that there was a breach of s 424A(1) and a denial of the requirements of procedural fairness, must also be rejected.  The subsection requires that information which the Tribunal has itself gathered, and of which an applicant may be unaware, be produced to an applicant for comment.  The circumstances here relied upon are different and suggest that the correct context is that of procedural fairness.  The applicant’s difficulty is that it cannot be accepted that he was confused as to the process being undertaken by the Tribunal.  Drummond J had identified the lack of reasoning and the Tribunal was, effectively, to go over the matter on the basis of the claims of the applicant and by considering the evidence he adduced at both the first and second hearings.  It would have been obvious that the Tribunal harboured some doubts about the applicant’s claims in the first decision, but this does not establish that it was unable to consider, or did not in fact consider, the matter as it was required to do.

16                  Since this matter was heard, a Full Court of this Court has given judgment on five appeals involving the application of the privative clause which is s 474(1), including NAAV v Minister for Immigration and Multicultural & Indigenous Affairs and Turcan v Minister for Immigration and Multicultural Affairs [2002] FCAFC 228.  It was held by the majority that the “Hickman principles” (R v Hickman; Ex parte Fox (1945) 70 CLR 598), which are imported into s 474(1), operate to extend the authority of the Tribunal and to severely limit the availability of prerogative relief for error.  The conditions to a privative clause operating in that way (Hickman, 616) are that the decision be bona fide, an exercise of the power given to the decision-maker, and that it be reasonably capable of reference to that power.  The practical effect of the operation of s 474(1) is that a decision to which it relates will not be invalidated.  As Von Doussa J otherwise observed [628-638] (and see Beaumont J from [91]) this will extend to encompass what were generally spoken of as errors of law and jurisdictional errors.  That would deny the applicant relief on most grounds.

17                  The applicant provided further, written submissions based upon aspects of these judgments and in particular the reasoning of the Chief Justice in Turcan [31].  The Chief Justice was there speaking of what is often called “jurisdictional factors” (see Von Doussa J [657]).  This application does not raise such a question.

18                  The applicant also referred to the judgment in Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 167 and to the Chief Justice’s opinion concerning certain statutory requirements which could be described as fundamental [37] and [38].  The Chief Justice was speaking of a requirement which must be satisfied before the statutory power is attracted [38].  The statutory requirement sought to be relied upon, s 424A(1), does not fall within this category.

19                  As I have earlier observed, the applicant’s claims of error in the process undertaken by the Tribunal and the information it provided, also fail at a  factual level.  The claim that it failed to give sufficient weight to the relevant risk is a question of fact, not of law, the Tribunal having addressed the risks to the family as Catholics who might have been Serbian collaborators.

20                  Other aspects of the submissions show a misunderstanding of the view taken by the Tribunal.  It was submitted that the Tribunal was obliged to ask itself whether it might be wrong about the bomb not having been planted for a Convention reason or, as was put in Minister for Immigration and Multicultural and Indigenous Affairs v Rajalingam [1999] FCA 719 [60]-[62] and [137], it must take account of that uncertainty and not foreclose that possibility in considering whether there is well-founded fear of persecution.  A Tribunal is not however required to enquire in every case (Rajalingam [140]) and certainly not if it harbours no real doubt.  Here the Tribunal did not accept that the motivation for the bomb could be for a Convention reason and gave reasons for its conclusion.  It could not say what the reason was, but this does not translate to an uncertainty about whether it could have been for a Convention reason.  That possibility was rejected.  In relation to s 91S, the Tribunal found that the father was being targeted for a non-Convention reason and that this did not avail the applicant. This would not appear to involve an error in the application of s 91S, if such a breach could found relief.  In relation to the issue of relocation, if one assumes, for present purposes, that it remains a ground for invalidity, it seems to me that the complaint made is not one of an error of law.  The factual finding, that the applicant was a resident of Montenegro, was disputed.

21                  In NAAV, Von Doussa J [628-638] (with whom the Chief Justice agreed in this respect at [4]) dealt with the claim that breaches of procedural fairness were not excluded by s 474(1) and rejected that argument (also see Beaumont J from [91].  In the event that the applicant’s first ground is viewed in this way, the majority decision gives the answer to it.

22                  That leaves the question whether the conditions referred to in Hickman are made out.  Only one is contentious, that of good faith.  Conscious no doubt that a claim of misconduct or dishonesty cannot be made by a legal representative to a court without a known factual foundation, Counsel for the applicant did not go so far.  The highest the submission could be put is that a person such as the applicant might not think that his case is being reviewed afresh.  That does not disclose a lack of good faith on the part of the Tribunal.

23                  The additional bases for drawing an inference that the Tribunal might not have approached the matter with an open mind were the processes undertaken by the Tribunal and the questions it should have asked.  The Tribunal’s approach in these respects is not indicative of a closed mind, assuming for present purposes that such an approach is encompassed by the concept of good faith in this context.

24                  The application will be dismissed with costs.

Associate:

Dated:              30 September 2002