FEDERAL COURT OF AUSTRALIA

QAAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1220

MIGRATION - protection visa - appeal from decision of Refugee Review Tribunal - privative clause - application of Hickman principles - whether decision reviewable under privative clause - whether decision of Tribunal discloses an absence of good faith - where absence of material regarding applicant’s claims - where Tribunal failed to undertake further investigation - where the applicant failed to receive notice of hearing.

Migration Act 1958 (Cth)

R v Hickman;  ex parte Fox and Clinton (1945) 70 CLR 598 Foll

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 Appl

NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 Appl

SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547 Appl

NACL v Refugee Review Tribunal [2002] FCA 643 Refd

SBAP v Refugee Review Tribunal [2002] FCA 590 Refd

QAAB OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Q25 OF 2002

COOPER J

BRISBANE

9 OCTOBER 2002

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay the respondent’s costs of and incidental to the application, including reserved costs, if any, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1                     The applicant is a national of Pakistan.  He arrived lawfully in Australia on 11 October 1996, being the holder of a Student Visa Class TU Sub-class 560.  His presence in Australia remained lawful until 9 July 1999.  On 23 May 2000 he applied for a Protection Visa (Class XA) to be issued to him under the Migration Act 1958 (Cth) (“the Act”).  The application was refused by the delegate of the Minister for Immigration and Multicultural Affairs on 31 August 2000.  The applicant applied to the Refugee Review Tribunal (“the RRT”) on 18 September 2000 for review of the decision of the delegate.

2                     The RRT by its decision made on 16 January 2002, affirmed the decision not to grant a protection visa.  The applicant applied to this Court for an order of review on 28 February 2002.

3                     The applicant was self-represented in the preparation and presentation of his application to the Court.

4                     The grounds pleaded in the application are :

“(a)     Musharraf is not Chief Executive, but President of Pakistan and have certain political ambitions.

(b)       I was not invited for interview to appear before the Tribunal.

(c)        After military coup, when my family started being harassed politically, I decided to apply for protection visa on my family advice.”

5                     The decision of the RRT is a “privative clause decision” within the meaning of s 474(2) of the Act and subject to the operation of Part 8 of the Act, as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).  Thus, although the jurisdiction remains under s 39B of the Judiciary Act 1903 (Cth) to review the decision of the RRT (s 475A), s 474(1) of the Act continues to operate in respect of the RRT’s decision in any exercise of that jurisdiction:  s 475.

6                     Section 474(1) of the Act 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.”

7                     The apparent blanket prohibition from judicial review of privative clause decisions provided for in s 474(1) is subject to conditions identified by Dixon J in R v Hickman;  ex parte Fox and Clinton (1945) 70 CLR 598 at 615:  see the decision of a Full Court of this Court in  NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 at [9], [10], [104], [281], [298], [499] - [500], [612].  Those conditions are that :

(a)        the decision is a bona fide attempt to exercise the power;

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

(c)        the decision is reasonably capable of reference to the power given to the decisionmaker;

(d)        there has been compliance with any inviolable limitations or restraints imposed by the Act.  (See NAAV at [17], [613], [619] - [620], [625] ).

8                     The decision of the RRT is thus to be considered by reference to whether these conditions have been satisfied.  If they have not been satisfied, s 474(1) will not save the decision from judicial review:  NAAV at [21], [106].

9                     The applicant claimed in the RRT that he had a well-founded fear of persecution because he was a member, as was his father, of the Pakistan Muslim League (“PML”).  The PML is the political party of former Prime Minister Nawaz Sharif, whose government was overthrown by a military coup on 12 October 1999.

10                  The RRT was not satisfied that the applicant was a person to whom Australia owed protection obligations under s 36 of the Act.

11                  The RRT dealt with the applicant’s claims as follows :

“The applicant’s claim is vague and general in nature.  He has not provided sufficient details to substantiate his claim that he or his family had been involved in politics in Pakistan and that such involvement might bring adverse attention against him or his family.  He has provided no information to substantiate his alleged membership although he has stated twice since he lodged his application that he would lodge his political documents.  He has provided no information as to when he allegedly joined the party, what his role and activities were, whether he was anything more than a nominal member or a follower, whether he was an activist, or what the alleged relationship of his father was with the party.  He has not provided an explanation of his claim that he is in the record of the government.

The applicant claimed in both his original application and in his application for review that the police have tried to arrest his father for trying to organise a demonstration against the military government in his town.  He has provided no details of this vague and general claim, such as the date of the alleged proposed demonstration, what ‘trying’ actually means and amounted to, who were the group being organised and who were the organisers, and how the police tried to arrest him.  He has provided no detail of the claim that his father is in hiding and is wanted by the authorities, and what action, if any, has been taken by the family of friends to assist him.

In addition the applicant has not provided any information about his father’s political background other than his vague claim in his application for review, ‘I belong to a political family.’  He has provided no information to support the claim that his family was a political family.  The applicant has not claimed that his father was a member or office-bearer of the PML.  However, even if the Tribunal were to accept that the father was a member of the PML or a follower of Sharif and the PML, there is no evidence before the Tribunal that the father was a high profile political activist in the PML, such as to attract adverse attention from political opponents.

Sharif’s party, the PML, was and remains one of the two leading political parties in Pakistan and as such would have had many millions of supporters, and a huge number of members.  There is nothing to suggest that these millions of supports, including the huge number of members, have been targeted in any way by the authorities.  Despite the coup, political parties have not been banned and continue to function. ...

...

In addition, the applicant has not claimed that he had been subjected to persecution while in Pakistan due to his membership with the PML.  There is no evidence before the Tribunal to indicate that the activities of the applicant whilst in Pakistan or his activities whilst in Australia would bring adverse attention against him from the present military-led Musharraf government of Pakistan.

Country information does not support the applicant’s claim that the military government has been particularly harsh against PML members.  The focus of attention of the new government upon taking office and after moving quickly to stabilise the situation, has been against corruption.  It launched a drive against corruption as such, and targeted those alleged to have taken part in corruption under previous administrations (Reuters News Service 7 December 1999 Pakistan Interview - Pakistan Ruler Sees long Corruption War).  There is nothing to suggest that the applicant has been engaged in corruption or has attracted the adverse attention of the authorities on that basis.  There is nothing to suggest that the applicant’s father had been singled out on this basis, or that he was at any time accused of corruption.”

12                  The applicant claims that he was not given an opportunity to be heard by the RRT and provide the information sought.  The absence of the applicant before the AAT was dealt with by the RRT in its reasons as follows :

“On 22 May 2001, the Tribunal wrote to the applicant, by letter addressed to the applicant at his address advised by him to the Tribunal, advising that it had considered all the papers relating to this application but it was unable to make a favourable decision on that information alone.  The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 20 June 2001.  The applicant was advised that if he did not attend the hearing and a postponement was not granted that the Tribunal may make a decision on his case without further notice.  No response was received.  On 20 June 2001 the Tribunal checked to see that it had done everything it could to actually notify the applicant of the hearing.  The Tribunal checked that it had sent the invitation to the address for service and residential address recorded on its system.  It checked its files for a more recent address.  The applicant had not supplied the Tribunal with a phone number and he did not have an agent.  DIMA files were checked for a more recent address and phone number.  The Tribunal checked with DIMA for more recent address and phone number;  DIMA had the same address as the Tribunal. The Tribunal made a Movement Database check at the above date and again on 3 December 2001 which indicated that there was no record that the applicant had left the country.  The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear.  On 6 July 2001 the Tribunal’s invitation was returned with the envelope marked ‘unclaimed.’  In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.”

13                  The RRT was obliged to invite the applicant to appear before the RRT to give evidence and present arguments relating to issues arising in relation to the decision under review:  s 425(1).  That invitation was to be by notice given to the applicant by one of the methods specified in s 441A:  s 425A.  Dispatch by pre-paid post to the last service or residential address provided to the RRT by the applicant is sufficient service:  s 441A(4).  The RRT was entitled if it chose, when the applicant did not appear, to make a decision on the review without taking any further action to allow or enable the applicant to appear before it:  s 426A.

14                  Applying the Hickman principles to the decision of the RRT, the decision relates to the subject matter of the Act, namely the review of an “RRT-reviewable decision”:  s 411.  It is reasonably capable of reference to the power of the RRT to affirm, vary or set aside RRT-reviewable decisions:  s 414, s 415.  There has been compliance with s 425, s 425A and s 441C(4) so as to entitle the RRT to proceed under s 426A.  Thus, it cannot be said that there has been a failure to comply with any inviolable limitation or restraint imposed by the Act.  On its face, the decision of the RRT is a bona fide attempt to exercise the power to review a RRT-reviewable decision.  However, the submissions of the applicant suggest that the RRT did not act bona fide in relation to either giving him a hearing or in purporting to investigate his claim.

15                  The question of what constitutes “bad faith” for the purposes of the Hickman principle has been considered by a number of judges of this Court in the context of the Act.  In NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713, Allsop J said :

“[24]  ... Dixon J in R v Murray; Ex parte Proctor, supra at 400, made it clear that the phrase involves an ‘honest’ attempt to deal with the subject matter conferred to the executive.  Bad faith is not just a matter of poor execution or poor decision-making involving error.  It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question.  Finn J in Daihatsu Australia v Federal Commissioner of Taxation (2001) 184 ALR 576 at [36] referred, by way of exemplification, to the exercise of a power knowingly for an improper purpose or where no attempt is made, knowingly, to act conformably with duty.  Heerey J in SBAP v Refugee Review Tribunal [2002] FCA 590 at [47] said that the phrase ‘bona fide’ involved a serious question involving personal fault on the part of the decision-maker going beyond error of fact or law.  It must be clearly identified and proved.  I agree.  I also agree with the statements of principle made by Mansfield J in SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547 at [34] to [36]”.

16                  In SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547, Mansfield J said :

“[34]  I respectfully agree with Finn J in Daihatsu Australia Pty Ltd v Commissioner of Taxation (2001) 184 ALR 576; [2001] FCA 588 at [34] that it is not appropriate in a matter such as the present to attempt a comprehensive exposition of what is and what is not countenanced by the expression ‘bona fide attempt to exercise [a] power’.  As his Honour said, the burden of the expression has been illustrated by example.  I will not repeat the examples his Honour there gave.  They were but examples.  Also in the context of ss 175 and 177 of the Income Tax Assessment Act 1936 (Cth), the Full Court (Spender, Burchett and Hill JJ) in Commissioner of Taxation v Stokes (1996) 141 ALR 653; [1996] FCA 1128 upheld a finding that there had been no bona fide attempt by the Commissioner of Taxation to exercise the power of assessment not by any mala fide on his part but because the power had not been exercised so as to create a definitive liability:  see at [67].  That case too illustrates that no comprehensive exposition of what is meant by the expression under consideration should be undertaken.

[35]    I am also mindful of the judicial strictures against making a finding of lack of good faith on the part of an administrative decision maker too readily.  The reasons for that approach are clear.  Again, they are discussed by Finn J in Daihatsu at [32] and [36].  It will be a rare and extreme case in which an administrative decision maker will be shown not to have acted in good faith.  I am conscious that I should not :

            “ … make the leap too readily from factual error or faulty reasoning (even serious factual error or misconceived reasoning) to a finding …”

            of lack of good faith.  That reference is to the judgment of Sackville J in Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 at [32] in the context of an allegation of actual bias so as to enliven the former s 476(1)(f) of the Act, but is I think equally applicable to my present consideration.”

17                  The allegation of bad faith is a serious allegation, not to be made lightly and must be clearly proved:  NACL v Refugee Review Tribunal [2002] FCA 643 at [21] - [22];  SBAP v Refugee Review Tribunal [2002] FCA 590 at [47].

18                  The applicant has filed two substantial affidavits in support of his claim.  One includes press clippings and print-outs of news reports on the internet sites of reputable media sources.  These articles relate to political, legal and social conditions in Pakistan since the military coup.  The other includes original correspondence received by the applicant at his residential address, both before and after the date when the invitation to appear was notified to him by post.

19                  The applicant submits that the media material demonstrates that his contentions as to the treatment of supporters of the PML in Pakistan were correct.  Further, he submits that the existence of the material proves that the RRT did not properly, or at all, investigate the conditions which existed in Pakistan or the substance of his claims.  This, he submits, shows that the RRT did not properly attempt to exercise the power of review otherwise it would not have made the findings which it did, or come to the conclusions which it did, as to conditions in Pakistan.

20                  The applicant submits that he did not receive the letter sent to him inviting him to appear.  As the letter was sent by pre-paid registered mail, that is correct.  The notification sent to him by the post office at Holland Park East, was the card notifying him of the registered mail held at the post office.  The envelope containing the written notification was returned to the RRT by Australia Post as unclaimed mail.  The applicant says that a second notice should have been sent to him when he did not respond or appear, and, that the fact that no second notice was given shows bad faith.  He said :

“I should - everybody deserve a second chance.  It was not my mistake.  I received all other letters.  That was the only one which went missing, your Honour.  It can happen to anyone, your Honour.  It was just some mishandling, misplaced.  Any other reason.  So many reason, your Honour.  They could have send me another letter, but no.  They were just waiting for something to happen.  They never - and not only that, your Honour.  After that, they say that to make contact to Department of Immigration and this and that.

...

I would have taken the same appropriate step if I’d received their letter, but it was just an unfortunate incident.  It can happen to anyone, your Honour, and many letters every year go missing.  Anything can happen, but do the relative department don’t send them second letter, third letter, final notice? ... third and final notice, your Honour.  I’m looking for only one other chance, second letter, but they did not.  They were just waiting for something to happen and that’s it.  That’s end of the story.”

21                  It was for the applicant to make out the elements of his claim to be a person to whom Australia owed protection obligations within the meaning of s 36 of the Act.  It was not for the RRT to undertake the task of disproving the claims which he made;  nor to make the applicant’s case for him.  Further, the RRT is not required to accept uncritically any or all of the claims made by an applicant.  Although there is no onus on an applicant to satisfy in order to make out a claim, there is in a practical sense the exigency that there must be sufficient material for the RRT to satisfy itself of the relevant facts and that those facts are sufficient to allow the RRT to be satisfied that the statutory criteria are made out. 

22                  A consideration of the RRT’s reasons shows that it was the absence of material relating to the applicant’s and his father’s activities with the PML which caused it not to be satisfied.  That would not have been overcome by the RRT undertaking internet and media searches of the type undertaken by the applicant and put before this Court as exhibits to his affidavits.  The mere existence of factual error, faulty reasoning or faulty research if it is found to exist, cannot render an attempt to exercise an administrative power as one lacking in good faith. There is nothing in the published reasons of the RRT which would support a finding of bad faith.

23                  Nor in my view, can a case of bad faith be made out from the circumstances surrounding the notification of the RRT’s invitation to appear before it and give evidence in support of his claim.  The reasons of the RRT disclose what steps the RRT took to attempt to ascertain that it had done everything it could to notify him of the invitation.  The RRT did not act precipitously when the applicant failed to appear at the hearing on 20 June 2001.  It did not act until 16 January 2002, almost seven months later.  It is obvious that the applicant did not during that period contact the RRT.  Notwithstanding this statement in his application dated 18 September 2000 for review by the RRT that :

“Because of troubles of my family through this military government it was not possible for me to get all my political documents in short time.  But I am trying my best to get all my relevant political documents and as soon as I receive them I will forward you all informations.”

he appears to have taken no steps with respect to the RRT in his own self-interest to advance his application for review.

24                  There is no basis to conclude that in exercising the power to proceed under s 426A after the expiration of almost seven months without hearing from the applicant, and having taken the steps recorded in its reasons, the RRT did so without acting in good faith.

25                  The applicant makes out none of the Hickman limitations.  In that circumstance, s 474(1) applies.  The decision of the RRT is by operation of the section final and conclusive and beyond challenge.

26                  The application will be dismissed with costs following the event.

Associate:

Dated:              2 October 2002