FEDERAL COURT OF AUSTRALIA

NAJD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1088

NAJD of 2002 & Ors v Minister for Immigration & Multicultural & Indigenous Affairs

N 468 of 2002

ALLSOP J

3 SEPTEMBER 2002

SYDNEY

THE COURT ORDERS THAT:

1. The applications be dismissed.
2. The first applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     I have before me an application under s 39B of the Judiciary Act 1903 (Cth) in the form of a second amended application which I granted leave to file in Court today and which I amended after granting that leave by adding the initials of the fifth applicant at the top of the page. 

2                     The applicant seeks orders by way of declarations as to nullity in relation to, or in respect of, a decision of the Refugee Review Tribunal (the Tribunal) made on 28 March 2002 which affirmed the decision of a delegate of the Minister, who is a respondent to these proceedings, to reject the claims made for protection visas.

3                     The first named applicant, “NAJD of 2002”, is a man who was born in Syria in 1964.  I will refer to him as the applicant husband.  He is married to a woman who is a national of the Philippines, the second applicant “NAJE of 2002”, if I may refer to her as the applicant wife.  The three other applicants in the proceedings are the children of the marriage, and it is common ground that their position is governed by the combined fate of the applications of the husband applicant and the wife applicant.

4                     Given the date of the Tribunal decision, the review under s 39B of the Judiciary Act is carried out in the light and context of the Migration Act 1958 (Cth) (the Act), in its terms after the amendments in the last quarter of 2001, specifically with s 474 of the Act in its current terms being present. 

5                     The Full Court of this Court has dealt with five matters compositely referred to as NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228.  In those appeals there were five reasons for judgment.  The Chief Justice, Beaumont, Wilcox, French and von Doussa JJ expressed views as to the operation of s 474, in particular in relation to a review under ss 412 to 414 by the Tribunal of a decision in respect of a protection visa under ss 65 and 36 along the lines of those expressed by Gyles J in NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 and myself in NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713.  Indeed, Beaumont and von Doussa JJ specifically agreed with the reasons in NAAX, supra and NAAG, supra.

6                     The Chief Justice in par 4 of his reasons for judgment said this:

I have had the advantage of reading in draft the reasons for judgment of the other members of the Court and, except in two cases, I have reached the same conclusions as to outcomes of these appeals as Beaumont and von Doussa JJ.  I would dismiss the appeals in NAAV, NABE and Ratumaiwai.  I would also do so essentially for the reasons given by von Doussa J and, subject to what follows, I agree with what his Honour has said about the construction of s 474 and its effect in these appeals.  I also agree with the reasons of von Doussa J for rejecting the submissions that s 474 is invalid as being offensive to Chapter III of the Constitution.

7                     The Chief Justice, Wilcox and French JJ were in a majority in the appeals in upholding the appeals in Turcan v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 397 and Minister for Immigration and Multicultural and Indigenous Affairs v Wang [2002] FCA 167.  It was the Chief Justice's disagreement with Beaumont and von Doussa JJ, who dismissed all the appeals in Wang, supra, and Turcan, supra, which gives content to the disagreement between the Chief Justice and von Doussa J referred to at [6] above.  That is, it gives content to the phrase "subject to what follows".

8                     I will be more precise in a moment, however, the cases before me of the applicant husband and the applicant wife are not analogous to, or similar to, the position of Mr Turcan or Mr Wang.  The Chief Justice was of the view that in Wang, supra, there was on the proper construction of the Act as a whole, including s 474, a jurisdictional fact required to be satisfied before a decision under s 131 to revoke a cancellation of a visa could be made.  This case has no connection with that part of the Act.

9                     In Turcan, supra, also a visa cancellation case, the Chief Justice was of the view that looking at the Act as a whole, including s 474, it could not have been intended by Parliament that a tribunal should be allowed to fundamentally mistake a legal question within par 116(1)(f) of the Act.  That part of the Act likewise has no connection with this case.

10                  What this case concerns is the legitimacy of the satisfaction reached by the Tribunal in the applicant husband's case.  No submissions were put as to the applicant wife's case.  I need to return now to the facts to make clear the proper approach to the disposition of the matter.

11                  As I said, the applicant husband was born in Syria in 1964.  His father was, it would seem, of some rank in the Syrian armed forces and it would appear that his father held some political views which were opposed to the then President of Syria.  It was accepted by the Tribunal that the applicant husband is the son of a high ranking military officer in the Syrian Army who was in fact detained and mistreated for eleven days in 1982 in Syria.  It was accepted by the Tribunal that the applicant husband left Syria illegally in 1982 by paying a bribe.  At this point he had not met his future wife.

12                  Prior to this, the family had gone to Saudi Arabia.  The mistreatment of the father apparently arose upon return to Syria in 1982 and at this point it would appear that the applicant husband decided to leave Syria.  After returning to Saudi Arabia for some period of time, in about 1988 the applicant decided to leave Saudi Arabia and go to live in the Philippines.   There he met his wife whom he married in 1989.

13                  The family came to Australia on a visitor's visa in 1999 and the applicant husband travelled on a false Syrian passport issued in his own name on 7 August 1996 which the Tribunal accepted his family obtained through a bribe.  After coming to Australia applications were lodged for protection visas.

14                  The claims of the applicant husband and the applicant wife were different and separate.  The Tribunal dealt with the claim of the applicant wife which concerned, in particular, the attitude of her family and others in the Philippines to her having converted to the Muslim faith upon marrying the applicant husband.  Questions of particular social group and other issues concerning the Convention and its application were dealt with by the Tribunal, which concluded that any harm the applicant wife feared would be as a result of defying her family's authority by her conversion to Islam and marrying an Arab and not for reasons of her membership of a particular social group, race or religion or any other Convention ground.  Therefore the Tribunal concluded that the applicant wife did not have a well-founded fear of persecution for a Convention reason.   No submissions are put in support of a review of, or a challenge under, s 39B of the Judiciary Act to, that conclusion.

15                  The attack is made upon the Tribunal’s decision insofar as it relates to the applicant husband.  Mr Killalea for the applicant and Ms Henderson for the respondent have both filed written submissions which are on the file and shall remain with the file.  I am indebted to both counsel for their assistance in those submissions and in oral submissions today.

16                  The attack on the decision which Mr Killalea on behalf of the applicants makes is at a number of levels.  Depending upon which end of the spectrum one starts at, he seeks to apply R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598or alternatively seeks to constitutionally challenge it.  I should be a little more precise.  His first proposition is that to the extent that s 474 has the effect which I described in NAAG, supra, and which Gyles J described in NAAX, supra, and which Beaumont and von Doussa JJ described in the appeals to which I have referred and which the Chief Justice described in [4] of those appeals, subject to the limitation which I have referred and to which I will return, it is unconstitutional.  In large part this matter was ventilated before the Full Court in NAAV, supra.  It was certainly ventilated before Gyles J in NAAX, supra, and before me in NAAG, supra.  Without seeking to be in any way disrespectful to Mr Killalea's submissions, they have been put before and I think can only be made out in the High Court.  They are in written form and I propose to pass over them, as I said, not out of rudeness or disrespect, but on the basis that in my view they have either been dealt with by the Full Court squarely or dealt with by Gyles J and myself squarely and I do not propose to deal with them in any detail today.

17                  That leaves the attack on the decision itself on the hypothesis that s 474 is not constitutionally invalid.  Mr Killalea identifies three ways of putting the matter in his written submissions and in his oral submissions.  The first is what can be called jurisdictional unreasonableness.  The second is what is referred to as constructive failure to obtain or exercise jurisdiction.  The third is a lack of bona fides in the decision-maker.

18                  The third of those ways of putting the matter is plainly available under the Act in the light of s 474.  It is the primary ground in one sense which Hickman, supra, leaves open.  That is that the Tribunal or decision-maker in question has not honestly or bona fide attempted to do its, his or her job.  I will return to bona fides shortly.

19                  The other two matters are not in my view open to the applicants here.  There may be circumstances in the operation of the Act where there is a jurisdictional fact revealed which must be satisfied in fact before a decision-maker is entitled to make a decision and before that decision-maker's decision is protected by the privative clause.  Wang, supra, was such a case in the opinion of Mansfield J, the primary judge, and the Chief Justice, Wilcox and French JJ on appeal.  That minds may differ about these sorts of statutory construction questions is exhibited by the fact that Beaumont and von Doussa JJ disagreed.

20                  In Hickman, supra, itself, whether one talks in terms of jurisdictional fact or simply statutory construction, Dixon J made plain at 618 that it was not for the Tribunal or decision-maker in that case to arrogate to itself jurisdiction or authority where on a proper reading of the statute it did not lie.  Decisions about the coal mining industry were protected by the privative clause, not decisions about people not in the coal mining industry.  That essentially identifies what the debate was in Wang, supra:  whether there was an enlivening act in the world which had to take place before the decision-maker could validly engage in whether or not to revoke the cancellation.  That is, was there a response to a valid notice under s 128 of the Act?  The majority were of the view that that was something intended to be in fact in existence before the power or jurisdiction in s 131 of the Act could be exercised.

21                  Here, despite the submissions of Mr Killalea, I am not persuaded that there is any such jurisdictional fact.  The Act provides clear guidance to what the Tribunal's task was.  It was to review matters under s 412 and following when an application for review was made.  An application for review was made.  Once that occurred, the Tribunal was obliged, as an administrator de novo,to make the decision or deal with the matter itself, afresh.

22                  The Tribunal’s task was to assess whether it could reach a state of satisfaction one way or the other under s 65 about the s 36 protection visa.  If it was not satisfied that Australia owed protection obligations it was obliged to refuse the visa.  If it was satisfied of Australia's protection obligations it was obliged to grant the visa.  As I said in NAAG, supra, and as a majority said in the Full Court matters, it is plain that the provision, that is s 474, was intended to be directed to this kind of decision making.  Of all the decisions, as I said in NAAG, supra, that were intended to be covered, applications for protection visas were the most obvious.

23                  There is no jurisdictional or threshold fact here that is not satisfied.  This is not a case like Wang, supra.  Nor is this a case where Mr Killalea submits some fundamental inviolable legal construct or framework in the Act has been misunderstood.  I say this because this is not a case where the content and extent of the difference between the Chief Justice and von Doussa and Beaumont JJ need be explored.  What is said here is that there is such a lack of probative material and such an absence of logical approach that it cannot be said that the state of satisfaction or lack of satisfaction about the applicant husband is one that could be said to be lawfully or bona fide reached.

24                  As I said a moment ago, consistent with my views in NAAG, supra, and my conformity, in my view, with the views of the majority in the Full Court appeals, the jurisdictional analysis carried out and propounded by Mr Killalea is not available in a case such as this.  That leaves the question of bona fides or the alleged lack thereof.  All the alleged defects in the Tribunal's reasons are available to be used in an assessment as to whether the Tribunal approached the matter in the appropriate way.

25                  In NAAG, supra, I dealt with the question of bona fides, and I referred to the decision of Mansfield J in SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547.  I was careful in NAAG, supra, not to comment upon the application of principle by Mansfield J in SAAG, supra, though I agreed with the principles he expressed in approaching his task.  I do not think it is necessary to repeat what I said in NAAG, supra, about good faith.  The only thing which I need to add is that it is plain in my view that the task of assessing whether there has been a good faith approach can involve simply looking at the fact findings and the legal analysis because that may in itself be of such a character as to disclose an approach which lacks bona fides.

26                  Thus it is necessary to examine what Mr Killalea puts as amounting to the error committed by the Tribunal, not to assess whether there was probative material to found the conclusions, not to engage in a task of the kind referred to Gummow J in Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611, not to engage in a task of a kind described in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (No 2) (1944) 69 CLR 407 or Buck v Bavone (1976) 135 CLR 110, but to see whether this Tribunal member failed to bring to the task at hand a level of honest bona fide approach which would be expected of him or her in such a task under the Act.

27                  As I said, the detailed submissions of Mr Killalea and Ms Henderson are on the file.  I think I can dispose of the matter by making the following comments which assume a familiarity with those written submissions.  The attack is founded on four particular aspects of the Tribunal's reasons given for not accepting the applicant.  Those matters were the discrepancy between the father's recollection as to how long he was detained for and that of the applicant husband (that is his son).  There was also the inability of the applicant husband to recall more details about the arrest of his neighbours.  There was the finding that the Syrian authorities would not be interested in the applicant twenty years after his family left Syria and there was a finding concerning the passport issued to the applicant consequent upon a bribe being paid.

28                  If I may summarise initially before descending into a little detail, I do not think that these matters taken individually or collectively reflect a lack of bona fides.  That is not to say that I am of the view that they necessarily reflect a wholly accurate body of factual findings.  That is simply not my job to investigate.  It is fair to say, as Ms Henderson does in her written submissions and in her oral submissions, that the Tribunal was unimpressed with the evidence of the applicant husband and was of the view that his evidence was not, in significant part, acceptable.

29                  There was a view set out at p 19 of the Tribunal’s decision, that much of the evidence of the applicant husband was vague, general and not sufficiently detailed, in particular in the light of his education and his capacity to speak, read and write English.  I think it fair to say that in relation to the first three of the factual matters to which I refer, real debate might take place about whether another decision-maker would confidently come to the sorts of views that this decision-maker did.  However, it goes without saying and it has been said in countless appeals of this kind and of other kinds, that the ability to view the witness give evidence is of inestimable value, even if that does not translate into precise findings.

30                  The fourth finding which was referred to (that is the passport finding), contained on p 20 of the decision, was somewhat strange.  The Tribunal accepted that the applicant's passport was a fraud and obtained by bribery, but the Tribunal said that it did not accept that if the Syrian authorities were interested in him, they would have issued him this passport in his own name.  I have difficulty understanding what it was the Tribunal was trying to say.  If a passport has been obtained by bribery I do not see any rational foundation for saying that the Syrian authorities would not issue the passport to him in his own name.  Ms Henderson conceded in part that the finding might well be described as somewhat baffling.  I think that is a precise and lucid way of expressing my problem.  However, baffling though I find that factual finding, I do not think it bespeaks dishonesty or lack of bona fides, nor does this particular finding, together with the other findings, display an approach which can be described as lacking honesty and bona fides.  

31                  In those circumstances and given that there is no central and inviolable question of law of the kind in Turcan, supra, nor a jurisdictional fact of the kind in Wang, supra, I am of the view that the limits of the available challenge in s 39B of the Judiciary Act have been exhausted and that in those circumstances the challenge to the decision of the Tribunal should be dismissed in relation to the applicant husband.  As I said earlier, in relation to the applicant wife, there is no separate challenge to the findings made about her in the Tribunal's decision.  In those circumstances, the applications of the children, the third, fourth and fifth applicants, necessarily fail also.

32                  I should add two matters.  The first is that it should not be forgotten that it is for the applicant to satisfy the delegate, and in this case the Tribunal, of a state of affairs.  If that satisfaction has not been reached after, as the Tribunal says, listening to and reading all the evidence and having considered the evidence as a whole and after having carefully considered the written submissions, then a defect in the expression of the reasoning process will not ground review.  That defectiveness of the expression of the reasoning process has to be such as to betray an approach to the task which can be characterised as one lacking bona fides. 

33                  The second thing which I would like to add is that though I have indicated my views as to at least one if not more of the aspects of the fact finding, I have not sat, as counsel well know, as an appeal court on factual matters.  I should not be taken to be passing any personal criticism on the Tribunal member, save and except that which naturally flows from the difficulty I have with some of the facts as found.

34                  As I said, I do not think the attack on the decision making can amount to a successful making out of lack of good faith.  In those circumstances, in the light of the matters that I have otherwise referred to, the application, in my view, must be dismissed.

35                  The second order is that the first applicant pay the respondent’s costs.  The reason I make that limited order as to costs is that only the first applicant’s claim was pressed.  Of course the other applicants were in support of that by reason of being parties who may take the benefit of it.  But it is appropriate I think, in all the circumstances, that the order for costs be limited to the first applicant.

Associate:

Dated:              9 September 2002