FEDERAL COURT OF AUSTRALIA

VDAA v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 1071

MIGRATION – review of decision of Refugee Review Tribunal – privative clause decision – whether alleged error “jurisdictional”, “structural” or “inviolable”

Migration Act 1958 (Cth) s 474

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 applied

Craig v South Australia (1995) 184 CLR 163 at 179 distinguished

Minister for Immigration & Multicultural Affairs v Yusuf [2001] 180 ALR 1 at [39-44] and [82-83] distinguished

Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459 cited

Simsek v Macphee (1982) 148 CLR 636 at 643 followed

Fernando v Minister for Immigration & Multicultural Affairs (2000) 58 ALD 91 at [32]-[37], [53], [55] followed

VDAA v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 251 OF 2002

HEEREY J

29 AUGUST 2002

MELBOURNE

THE COURT ORDERS THAT:

1.      The application is dismissed.

2.      The applicant pay the respondent’s costs to be taxed, including reserved costs.

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

REASONS FOR JUDGMENT

1                     The applicant seeks review under s 475A of the Migration Act 1958  (“the Act”) and s 39B of the Judiciary Act 1903 (Cth) of a decision of the Refugee Review Tribunal given on 2 April 2002 affirming a decision of a delegate of the Minister not to grant the applicant a protection visa.

2                     The applicant arrived in Australia on 31 December 2001.  His application for a protection visa was lodged on 9 January 2002 and refused by a delegate of the Minister on 30 January 2002.

3                     It is accepted that this application is governed by the Act as amended in October 2001 and that the decision under review is a privative clause decision and thus subject to s 474(1) of the Act which provides:

“(1)     A privative clause decision:

            (a)        is final and conclusive; and

(b)        must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

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

The applicant’s claims

4                     The applicant is a 38 year old male citizen of Nepal.  He claims to be a refugee within the meaning of the Refugees Convention by reason of a well-founded fear of persecution on the ground of political opinion imputed to him as a supporter or Maoist rebels.  He also claims a fear of persecution by those rebels and inability to obtain State protection.

5                     The applicant has a wife and two children who remain in Nepal.  His children are aged 16 and 13.  The family live at Ramboth Tole which is about 200 km from Kathmandu. 

6                     The applicant lived for various periods in Saudi Arabia where he worked as a driver.  In recent times he returned home in 1998 and again in 2001.  He claimed that after he returned to Saudi Arabia in 1998 his wife told him that Maoists had come to their house and demanded food and money.  In 2001 after his return from Saudi Arabia the Maoists came again on two occasions, once in a group of thirty to forty and the second in a group of forty to fifty.  They threatened the applicant and showed him grenades and guns.  They warned him that if he or his family went to the police they would be killed.

7                     On 10 September 2001, two days after the second occasion, the police visited the applicant.  They warned him that if Maoists came again and he did not warn the police that they were there he would be shot.  They said if they came again they would issue him with a warrant.

8                     The applicant claimed he was in an impossible situation.  On 15 December he took the bus to Pokhara and then to India.  He left his passport home as he did not need it in India.  He sold his house.  His wife and children are now renting a house in the same village.  He could not bring them with him as he did not have enough money and the children are still at school.  His wife has told him that the Maoists are still giving trouble and they have taken her gold necklace.

9                     The applicant stated that he has learned that there is a warrant out in his name.  It has been stated in a newspaper that he is wanted by the authorities.

10                  The applicant has a brother renting accommodation in Kathmandu.

11                  At the Tribunal hearing the applicant stated that his wife was sending further documents.  He was given a week to provide them.  The documents were not provided in time.  However subsequently the applicant provided a letter from his wife with translations.  The Tribunal recalled its decision to reconsider this letter.

12                  In the letter the applicant’s wife states that the police are still looking for him.  They come to the house every day and ask where he is.  They say they will kill him if they find him.  She says that it has been published in various newspapers that he is wanted.  She states that all their gold, silver and other possessions have been looted.

Tribunal’s reasons

13                  The Tribunal did not accept that the applicant or his wife had been threatened by Maoists.  It gave a number of reasons for this conclusion.  First, on learning that his wife had been threatened the applicant did not return to Nepal.  He claimed that this was because he could not get leave.  However the Tribunal did not accept this reason.  It considered that had he learned that his wife was being threatened by Maoists demanding food he would have returned immediately.  Secondly, the Tribunal did not accept that had the threats been made as alleged the applicant would have left his wife and children behind in the same village when he came to Australia.  The Tribunal considered that at a minimum he would have taken them to another place before leaving for Australia.  Thirdly, the Tribunal considered it implausible that the authorities would issue a warrant against him.  In the Tribunal’s view, if the authorities had any reason to detain him for assisting Maoists they would have done so when they visited him and not issued a warrant at a later stage.  Also his further suggestion that the contents of the warrant had been printed in a newspaper was implausible.  There was nothing in the applicant’s account to indicate that the press would have any interest in him. 

14                  As to the applicant’s wife’s letter, the Tribunal did not consider it plausible that the police would come every day looking for him or repeatedly say they would kill him.  The applicant’s claims did not indicate that the police would have sufficient interest in him to harass his wife every day and threaten execution.  The Tribunal thought that the implausibility of the applicant’s claims in relation to the police was another reason why the applicant should not accept the applicant’s other claims about the Maoists being after him.  Further, given these findings, the Tribunal did not accept that the Maoists had been troubling his wife since his departure.  The Tribunal considered that if the applicant’s claims were genuine he would have taken his whole family to a safer place either somewhere in Nepal or India.  If he had enough money to come to Australia he had ample for them to all travel to India.  His failure to do this indicated to the Tribunal “that he was not then and is not now facing a real chance of persecution from either the Maoists or the authorites in Nepal”.

15                  Finally, the Tribunal thought that if it was wrong about that finding the Country Information indicated that the applicant could relocate to another part of Nepal.  The information indicated that Maoists do not operate throughout the country and that the government authorities maintained control of various regions, including Kathmandu.  The applicant has a brother in Kathmandu.  The applicant is of a young age and his ability to travel to Australia indicates that he has ability to adapt.  His ability to live elsewhere than in his home town is also evidence by his living and working in Saudi Arabia. 

16                  Taking all the applicant’s claims into account the Tribunal found that there was no real chance that he would face persecution for an imputed political opinion or other Convention reason in Nepal.  The Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason.  Having considered the evidence as a whole, the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.  Therefore the applicant did not satisfy the criterion set out in s 36(2) of the Act for a protection visa. 

Argument on review

17                  The hearing of the application took place shortly after the delivery of the judgment of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228.   In the light of that decision Ms Sarah Porritt, counsel for the applicant, only pursued those grounds of the amended application which alleged that the Tribunal exceeded its jurisdiction or committed a jurisdictional error. 

18                  Two errors of this kind were identified.  First, in rejecting the applicant’s claims of Maoists demands the Tribunal had reasoned that if such events had occurred the applicant would have returned from his employment in Saudi Arabia, would not have left his wife and children behind in the same area when he came to Australia and would have taken the family to a safer place elsewhere in Nepal or in India.  Counsel said that the Tribunal had erred by assessing the applicant’s conduct against its own views (the basis of which were not articulated) as to the appropriate conduct by the applicant in the circumstances.  The Tribunal had erred in failing to consider whether the applicant was a refugee within the meaning of the Convention and instead had considered the irrelevant question as to whether his standard of conduct towards his wife and family met some unarticulated standard of the Tribunal.

19                  The second alleged error was that in finding that the Maoists did not operate throughout Nepal and that the government authorities maintained control of various regions, including Kathmandu, the Tribunal failed to assess the role and attitude of the police in controlling Maoists in Nepal and thus failed to assess whether the applicant enjoyed effective State protection in that country.

Conclusion

20                  The applicant’s argument is based on the principle enunciated by the High Court in Craig v South Australia (1995) 184 CLR 163 at 179 which was considered to be applicable to the Act in its pre 2001 amendment form by members of the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [39-44] and [82-83].  Under this principle, an administrative tribunal will fall into jurisdictional error if it indentifies a wrong issue, asks itself the wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion.  However it is now established by the majority judgments in NAAV that this ground is no longer available where the application for review is governed by the Act as amended:  see per von Doussa J at [636]– [639]; Beaumont J (at [277]) agreed with von Doussa J, as did Black CJ (at [30]).

21                  There remains the question whether the present application concerns one of the few “jurisdictional factors” which attract the authority and powers of the decision-maker and which must be satisfied as a pre-condition to the operation of s 474:  see per von Doussa J at [625].  Black CJ (at [37]) preferred the term “structural element”.  Such an element has also been described as an “inviolable limitation or restraint” on power: per von Doussa J at [625].

22                  Counsel for the applicant argued that the requirement of satisfaction as to prescribed criteria (s 65(1)(a)(ii)) and, in the case of a protection visa, the criterion of satisfaction that Australia has protection obligations to the applicant under the Refugees Convention (s 36(2)(a)) answer that description.  They are pre-conditions that are “fundamental”, “structural” or “inviolable”.  Thus, counsel said, the criterion of s 36(2)(a) and the satisfaction as to this criterion (s 65(1)(a)(ii)) should be equated with the pre-condition of the exercise of the power of visa cancellation on satisfaction that a grant was in contravention of the Act (s 116(1)(f)).  The latter provision was an issue in the case of Turcan, one of the five appeals dealt with in NAAV.  In relation to Turcan, Black CJ joined the judges otherwise in a minority (Wilcox and French JJ) in forming a majority (Beaumont and von Doussa JJ dissenting) for the upholding of the appeal.  Black CJ (at [30]) after holding that s 474(1) provided a “contrary intent” so as to exclude the doctrine in Craig v South Australia said:

“For this reason, I take s 474(1) to express the Parliament’s intention that the Minister’s satisfaction is to be taken to exist even if the Minister (or the delegate) has identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material.  But here the question as to ‘contravention of [the] Act or any other law of the Commonwealth’ raised by s 116(1)(f) is so centrally definitional to ‘satisfaction’ that is required by s 128, and is posed so directly as a legal question about the operation of the Act itself, that a line might have been crossed, in that it would seem inherently unlikely that the Parliament intended that the Minister be given a power to decide that question in a way that is wrong as a matter of law.  Not only is the ultimate question to which s 116(1)(f) requires an answer posed, in terms, as a question of law, but part of that question relates back to the equally fundamental question of validity of the application for the visa (see s 46).”

(emphasis in original)

23                  Counsel argued that it was “inherently unlikely” that Parliament intended that the Minister, or the Tribunal, reach a stage of non-satisfaction for the purpose of s 36(2) in a way that was “wrong” as a matter of law.  It was implicit in counsel’s argument that in this context she meant meant “wrong” in the Craig v South Australia sense.  Counsel advanced two reasons for imputing this intention (or lack of intention) to Parliament.  First there was the international importance of Australia fulfilling its obligations under the Refugees Convention.  Secondly, there was the importance of the decision itself for an applicant for refugee status. 

24                  But the Refugees Convention establishes no particular procedural process for the purpose of determining whether any individual is in fact entitled to refugee status.  Contracting States may establish whatever procedures they see fit for the purpose of such determinations and those procedures in fact vary widely:  Simsek v Macphee (1982) 148 CLR 636 at 643; Fernando v Minister for Immigration & Multicultural Affairs (2000) 58 ALD 91 at [32]-[37], [53], [55]

25                  As to the second suggested reason, while the importance to an asylum seeker of a decision on review is self-evident, the hard fact is that Parliament both in 1992 and 2001 has passed amendments to the Act which on any view curtailed substantially judicial review rights of asylum seekers (along with others affected by migration decisions) as compared with other litigants seeking administrative law relief.  No doubt the Act evinces an intention that decisions as to protection visas should not be “wrong”, either factually or legally.  Parliament must be taken to intend that all of its Acts be obeyed.  But the unavoidable conclusion is that Parliament intended that this Court’s role in determining whether or not a migration decision is “wrong” is to be strictly limited.

26                  Moreover, enquiry as to the likelihood, inherent or otherwise, of Parliament in fact having a particular intention is probably not the true task of a court.  Rather that task is, in the words of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459,

“…to give effect to the will of the legislature but as it has been expressed in the law and by ascertaining the meaning of the terms of the law.”

27                  In any event, the judgments of the majority in NAAV make it clear that “jurisdictional” or “structural” or “inviolable” factors or elements are matters which arise at the initiation or activation of the decision-making process; see per von Doussa J at [625]. Likewise Black CJ (at [37]), in relation to the Wang appeal, thought that the particular area of decision-making had to be “enlivened”, and “enlivened only by a notice having a particular quality”. 

28                  By contrast, the decision which the Tribunal made as to the non-satisfaction as to the applicant’s answering the definition of refugee came at the end of the process.  The Tribunal had embarked on this task lawfully.  It was empowered by the Act to do so.  Section 474 has the effect that the way it went about its task is protected from judicial review.

Orders

29                  The application will be dismissed with costs, including reserved costs.  I would express the Court’s appreciation to Ms Porritt, who appeared under the Court’s pro bono scheme.

Associate:

Dated:              29 August 2002