FEDERAL COURT OF AUSTRALIA

VAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1201

MIGRATION – refusal of protection visa by Refugee Review Tribunal – judicial review – alleged failure on part of Tribunal to consider particular aspect of applicant’s claim – whether jurisdictional error – privative clause decision – whether alleged error falls within Hickmanprinciples – whether transgression of “inviolable limitation or restraint on power”

Migration Act 1958 (Cth) s 474(1)

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615-616 referred to

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 at par [10] applied

R v Coldham; Ex parte The Australian Workers’ Union (1983) 153 CLR 415 at 419 referred to

SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161 at [30] referred to

Ahvazi v Minister for Immigration and Multicultural Affairs [2002] FCA 279 referred to

VAJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENEOUS AFFAIRS

V1101 OF 2001

WEINBERG J

27 SEPTEMBER 2002

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

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.

REASONS FOR JUDGMENT

1                     This is an application for review of a decision of the Refugee Review Tribunal (“the RRT”) given on 19 September 2001.  By that decision the RRT affirmed a prior decision of a delegate of the Minister on 27 July 2001 not to grant the applicant a protection visa.  The applicant seeks review of that decision under s 475A of the Migration Act 1958 (“the Act”) and s 39B of the Judiciary Act 1903 (Cth).  It is accepted that this application, having been instituted on 17 October 2001, is governed by the amendments to the Act which came into effect on 2 October 2001.  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.”

Background

2                     The applicant, a citizen of the Federal Republic of Yugoslavia, arrived in Australia on 26 December 1980 on a three month visa.  After that visa had expired, he remained in Australia.  He was arrested in June 2001 by Immigration Officers. 

3                     On 26 June 2001 the applicant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs.  On 23 July 2001 he was interviewed in connection with his application.  On 27 July 2002 the delegate determined that the applicant was not a person to whom Australia had protection obligations under the 1951 Convention Relating to the Status of Refugees (“the Convention”), as Amended by the 1967 Protocol, on the basis that the applicant did not face a “real chance of persecution upon return to Yugoslavia”. 

4                     Article 1A(2) of the Convention provides that the term “refugee” shall apply to any person who:

“… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return it”.

5                     On 2 August 2001 the applicant applied to the RRT for a review of the decision of the delegate to refuse a protection visa.  On 10 September 2001 a hearing was conducted by the RRT.  Written submissions were also received on behalf of the applicant. 

6                     On 19 September 2001 the RRT gave its decision affirming the decision of the delegate under review.  That lead to the institution by the applicant of this proceeding in this Court. 

The applicant’s claims

7                     The applicant was born in 1944 in Begec, Vojvodina, which is now in the Federal Republic of Yugoslavia.  From an early age he lived in Ilok, which is in the Vukovar region, in what is now Croatia.  The regions of Vojvodina and Ilok are close together and are separated by the Danube River which was formerly the border between the old states of the Federation of Serbia and Croatia respectively.  It is now the border between the Federal Republic of Yugoslavia and Croatia.

8                     The applicant is of Slovakian ethnicity.  His birth name was originally Hungarian.  However, the authorities required it to be changed to a more acceptable Serbo-Croatian version. 

9                     The applicant claimed that as a young man he had held and expressed political beliefs which were contrary to the “political climate” of the day.  He had openly expressed loyalty to Hungary, and as a result had been harassed by the police. 

10                  The applicant also claimed that his father had been a partisan during World War II, and that this had led to further harassment on the part of the Croatians among whom he was then living.  He claimed that his employment prospects were poor because of his Slovakian ethnicity.  He claimed that he had been subjected to physical assaults and as a consequence, suffered deafness in one ear.  The assaults were said to have occurred between 1966 and 1971.  He also claimed to have been detained by the police in Vukovar, and beaten by them in 1971.

11                  The applicant said that he had left Yugoslavia in 1971, and gone to live in Israel.  He remained in that country until 1980 when he came to Australia.  During his time in Israel he returned to Yugoslavia, for periodic visits, in 1972, 1976, 1977 and 1980.  He claimed that on the last of these visits he had been arrested in Ilok, but had managed somehow to escape.

12                  The applicant claimed that, while in Israel, he had been attacked by a Serbian ultra-nationalist who had formerly been a police inspector.  He claimed that he suspected that this person, who had since returned to Vojvodina, would kill him if he were ever to return to his homeland.

13                  In broad terms, the applicant claimed that he was fearful that if he were to return to Croatia he would be executed on account of his father’s pro-communist sympathies.  He also claimed that if he were returned to the Federal Republic of Yugoslavia he would be conscripted to the army and “sent to the front”.  He also claimed that he feared persecution by reason of his being a member of the Evangelical Church. 

The RRT’s reasons

14                  The RRT found that the applicant had been, as he claimed, born in Vojvodina and that he was a “national” of the Federal Republic of Yugoslavia.  It concluded that although he had spent many years in Croatia, there was insufficient evidence to warrant a finding that he was a national of that country. 

15                  The RRT found that the situation in Yugoslavia “has changed dramatically since the applicant left there initially in 1971”.  It concluded that nothing that had happened to him prior to his departure indicated that he faced a “real chance of persecution” should he now return.  It noted the applicant’s claims with regard to the partisan background of his father, the assaults which he claimed to have suffered between 1966 and 1971, and his detention and the beating which he claimed to have sustained in 1971.  However, it observed that his frequent visits to Yugoslavia, while living in Israel, (the last occasion being 1980) suggested that he did not face a “real chance of persecution at that time”. 

16                  The RRT noted that “it [was] possible he may have had a brush with the police on his last visit”.  However, it observed that:

 “the fall of Communism and the disintegration of the former Yugoslavia mean that there is no real chance he will face persecution now because of any of the events of 1980”. 

17                  The RRT observed that the applicant had specifically claimed that he would be killed by the former police inspector who had attacked him in Israel, and since returned to Vojvodina.  It noted that the applicant had claimed that this person had sent someone to kill him in the past.  However, it did not accept that this person wished to have the applicant killed.  The applicant had spent a number of years in Israel after his initial confrontation with that person in 1972.  In the RRT’s view, had that person wished to harm the applicant, he would have done so by now.  The RRT was also not satisfied that during this period the person had sent someone to kill the applicant.  Indeed, that claim was regarded as fanciful.  Whatever personal enmity there may have been towards the applicant, the RRT did not accept that this stemmed from the partisan activities of his father.  The RRT also did not accept that it stemmed from the applicant’s ethnicity, or any differences in political opinion that the applicant and the person might hold, including that person’s alleged adherence to Serbian ultra-nationalism. 

18                  The RRT observed from the country information before it that, whilst Slovaks still faced discrimination in Yugoslavia, there was a sizeable Slovak population living in the region of the applicant’s birth.  It therefore concluded that there was no real chance that the applicant would face serious harm, sufficient to constitute persecution, simply by reason of his Slovak ethnicity. 

19                  Finally the RRT noted that more than fifty percent of Slovaks were followers of the Evangelical Church.  The country information indicated that the Church was able to operate in Vojvodina.  In those circumstances, the RRT did not accept that there was any real chance that the applicant would face persecution because of his membership of that Church.

20                  The RRT concluded that:

“Taking all of the applicant’s claims into account the Tribunal finds that there is no real chance the applicant will face persecution because of his Slovak ethnicity, his religion, his political or any imputed political opinion or for any other Convention reason.”

Submissions by the applicant before this Court

21                  The applicant relied primarily upon two grounds in support of his application for review before this Court. 

22                  The first ground was that the RRT had failed to apply the correct legal test when determining whether the applicant met the criteria for a protection visa because it failed: to make findings in relation to his claims of past persecution; to ask itself whether, in light of a change of circumstances, there was a real chance of such persecution occurring in the future; and to refer to any evidence or country information in relation to the circumstances presently existing in the applicant’s country of nationality going to the risk of prospective persecution for reasons of actual or imputed political opinion. 

23                  The second ground was that the RRT had only dealt with the applicant’s claim of a fear of persecution by one person, the former police inspector and concluded that “there was no real chance this person will target him if he now returns to Vojvodina” without considering the broader question of whether, on return, he would face a real chance of persecution by para-military groups.  The second ground was also couched in the alternative.  It was argued that the RRT had misstated or misconceived the applicant’s claims by dealing solely with a fear of persecution by one person, rather than asking itself the question whether he had a well-founded fear of persecution at the hands of para-military groups.

Submissions by the respondent before this Court

24                  The respondent submitted that, by reason of ss 475A and 476 of the Act, the jurisdiction of this Court is now limited, relevantly, to that conferred by s 39B of the Judiciary Act 1903.  The respondent further submitted that as the decision which is the subject of this proceeding is a privative clause decision, s 474(1) of the Act severely operates to restrict this Court’s power to review that decision.  More particularly, the restriction on the scope of review is that identified by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615-616.

25                  The respondent submitted that the decision sought to be challenged contained no error of the type that could justify judicial review pursuant to the Act.  In relation to the applicant’s first ground of appeal, the respondent submitted that, given that the RRT had found that he was a national of Yugoslavia, and would therefore only be returned to that country, any fear which the applicant might have concerning his possible return to Croatia was entirely irrelevant. 

26                  The respondent further submitted that the applicant’s claims of persecution, based on political opinion, were all derived from events that had allegedly occurred in Croatia, where the applicant had lived, and grown up.  None of those claims derived from events in Vojvodina, the region in the present Federal Republic of Yugoslavia, to which he would be now returned. 

27                  In relation to the applicant’s second ground of appeal, the respondent contended the only basis upon which the applicant claimed to fear persecution in Vojvodina was the personal enmity which had been displayed towards him by the former police inspector while the applicant was living in Israel.  There was no real claim, as a matter of substance, involving any persecution at the hands of “para-military” persons, and the RRT was not obliged to deal with any such claim. 

28                  Moreover, the respondent submitted that, there was nothing in the material before the RRT to suggest that any paramilitary groups might wish to harm the applicant because of his Slovak ethnicity.  The applicant had not advanced any evidence to suggest that para-military forces were operating in the region of his birth.

Conclusion

29                  Whatever the position might have been prior to the enactment of s 474(1) of the Act, it is now clear that the applicant can only succeed in his application for review if he can demonstrate that his case falls within the principles enunciated by Dixon J in Hickman (supra).

30                  Section 474(1) is in substantially the same terms as the provision in the World War II National Security Regulations considered by the High Court in Hickman.  It is also in substantially the same terms as the privative clause in the industrial legislation considered by the High Court in the many cases set out in the judgment of Black CJ in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 at par [10]. 

31                  What is described as a “Hickman clause” will validate a decision under review provided that three conditions are fulfilled.  These are:

·                    the purported exercise is a bona fide attempt to exercise the power;

·                    it relates to the subject matter of the legislation; and

·                    it is reasonably capable of being referred to in the power.

32                  In substance the Hickman doctrine operates to reconcile apparently inconsistent statutory provisions, one of which seems to limit the powers of the decision maker and the other, the privative clause, seems to contemplate that the decision shall operate free from any restriction.  The inconsistency is resolved by reading the two provisions together and giving effect to each.  The Hickman clause is taken into account in ascertaining what the apparent restriction actually signifies.  This is so that the court can determine whether the situation is one in which judicial review is available.  The one limitation upon the scope of a Hickman clause, for which there appears to be substantial support, is that it cannot affect the operation of a provision which imposes “inviolable limitations or restraints” upon the jurisdiction or powers of a decision-maker: see R v Coldham; Ex parte The Australian Workers’ Union (1983) 153 CLR 415 at 419 per Mason ACJ and Brennan J. 

33                  The only argument advanced on behalf of the applicant which could conceivably give rise to a jurisdictional error of a kind sufficient to warrant prerogative relief under s 39B was that the RRT had misunderstood or misconceived an aspect of his claim, and failed to deal with it:  see SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161 at [30].  The argument turned upon a particular question set out in the pro forma application for a protection (class XA) visa, and the applicant’s answer to that question.  The applicant was asked whether he thought the Yugoslav authorities would protect him if he returned to that country, and if not, why not.  His reply was “no”, because there were para-military groups acting independently of the authorities and outside their control and supervision.  Those authorities had acted against ethnic minorities, including Slovaks and minority religions, and had participated in ethnic cleansing.

34                  That claim was developed on behalf of the applicant in his written submissions lodged on 20 June 2001.  Par [15] of those submissions was in the following terms:

“One day in Israel in Azot a man named [B], a former police inspector of Serbia attacked him as [B] was a supporter of Serbian nationalism.  He believes that [B] is now back in Vojvodina conducting para-military operations in Novi-Sad persecuting those against Serbian nationalism.  The applicant believes and is convinced that [B] will kill him if [B] encounters him in Vojvodina for the political beliefs and opinion [B] knows that the applicant holds and which he expressed freely when the applicant was in Israel.”

35                  It is clear that neither the delegate, nor the RRT, dealt specifically with the claim that para-military forces posed a threat to the applicant’s well-being if he were required to return to Yugoslavia. 

36                  The delegate referred to an incident involving [B] who had since returned to Serbia from Israel, and whom the applicant feared.  However, he did not link that individual to any para-military groups except in the broadest of terms. 

37                  The RRT noted the applicant’s claim that on one occasion in Israel a man named [B], who was a former police inspector in Vojvodina and a Serbian nationalist, had attacked him.  It also noted the applicant’s claim that [B] had returned to Novi-Sad and had conducted para-military operations during the war.  The enmity between the two men was said to have begun at a party in 1972 when there was an altercation between them.  The applicant claimed that [B] sent a friend in 1978 to kill him.  He claimed that after 1972 he saw [B] across the street, but never spoke to him again. 

38                  As noted earlier, when dealing with this aspect of the applicant’s claims, the RRT did not refer in terms to the possibility that para-military forces associated with [B] might cause him harm if he were to return to Yugoslavia.  It did, however, conclude that there was no basis for the assertion that [B] wished to have the applicant killed. It specifically rejected the applicant’s claim that [B] had arranged for someone to try to kill him.  Given that the applicant’s claims regarding the threat from para-military forces were linked, at least in his written submissions lodged with the RRT on 20 July 2001, to the threat from [B], it is difficult to see how it could be said, even without recourse to s 474(1), that the RRT had committed an error which went to jurisdiction by not addressing specifically, and in terms, a possible threat from the para-military: see Ahvazi v Minister for Immigration and Multicultural Affairs [2002] FCA 279

39                  However, even if that conclusion were open, the effect of s 474(1) is to preclude it from being reached.  It cannot now be said that a failure on the part of the RRT to address a particular claim made by an applicant gives rise to reviewable error.  Such a failure will seldom, if ever, satisfy the requirements of one or more of the three Hickman conditions.  It will not of itself demonstrate that the RRT’s decision was not made bona fide.  Nor will it show that the RRT’s decision did not relate to the subject with which the Act dealt, or that it was not reasonably capable of reference to the power possessed by the RRT. 

40                  It is difficult to see how, within the framework of the Act as it currently stands, a failure to address a particular claim can fall within the concept of transgression of an inviolable limitation or restraint upon the jurisdiction or powers of the RRT. 

41                  A similar argument was considered and rejected by the Full Court in NAAV.  One of the five matters dealt with by the Court in that case was NABE of 2002.  That was an appeal from a decision of Tamberlin J before whom the appellant’s claim for judicial review had been principally put on the basis that the RRT had misunderstood his claims because it misidentified the persons by whom he claimed to be persecuted.  This was said to give rise to a constructive failure to exercise jurisdiction, an error which, the appellant submitted, went to the jurisdiction of the RRT. 

42                  The Full Court concluded that there was no substance in the appellant’s claim that there had been a constructive failure to exercise jurisdiction.  Their Honours went on to say that even if that claim were accepted, the privative clause would operate to protect the decision from review.  The reasoning of the Full Court is directly applicable to the facts in the case before this Court.  I am bound by that reasoning.  Accordingly I find that even if, contrary to my earlier conclusion, the RRT did fail to address a claim made by the applicant, which it was bound to consider, the decision under challenge is protected by s 474(1) from review on that ground. 

43                  It follows that the application for review must be dismissed.  The applicant must pay the respondent’s costs.

Associate:

Dated:              27 September 2002