FEDERAL COURT OF AUSTRALIA

VDAE v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 1557

MIGRATION – protection visa – review of decision of Refugee Review Tribunal – privative clause decision – whether Tribunal decision in breach of indispensable condition to or inviolable limitation upon its jurisdiction – whether Tribunal acted in good faith in making decision

Migration Act 1958 (Cth) ss 36, 65, 474

R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 616 applied

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 at [37], [639] and [107] applied

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

Minister for Immigration and Multicultural Affairs v Yusuf  (2001) 180 ALR 182 referred to

SBBK v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 565 at [44] not followed

NAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 at [59]-[60] followed

SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [44] applied

SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397 at [19] applied

VDAE, VDAF and VDAG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 302 of 2002

HEEREY J

16 DECEMBER 2002

MELBOURNE

THE COURT ORDERS THAT:

1.      The applications are dismissed.

2.      The applicants pay the respondent’s costs, 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 first applicant is a female of Sri Lankan nationality.  Together with her husband the second applicant and her daughter, the third applicant, she seeks orders under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal (the Tribunal) made on 26 March 2002 which affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. 

2                     Section 36 of the Migration Act 1958 (the Act) provides that one of the criteria for the grant of a protection visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees and the Protocol to that Convention.  In terms of Art 1A(2) of the Convention and Protocol, Australia has protection obligations to any person who:

“owing to 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 …”

If satisfied as to this, together with other criteria, the Minister, or on review under s 414, the Tribunal, is to grant a visa: s 65(1)(a)(ii).

3                     The Convention ground relied on was that of an imputed political opinion.  The first applicant had previously been married to A, a political figure in Sri Lanka.  The first applicant claimed that A and an associate B had been directly involved in the assassination in 1993 of a politician C.  The first applicant claimed that she feared persecution by the PA party in Sri Lanka, which party was opposed to A’s party, the UNP.  Alternatively she feared persecution by A and B themselves out of fear that she would disclose knowledge of their implication in the crime.

4                     The Tribunal considered the central questions in this case to be whether the first and second applicants have information, or are believed to have information, which could implicate A in the assassination of C and so lead A to face trouble if it were to be exposed; and whether A’s political opponents have, or could be perceived as having, an interest in exposing such information and so lead A and his associates to act to silence the first and second applicants by harming them.  The Tribunal found that A was not suspected of involvement in the assassination of C and that A would have little reason to fear that the episode will have a negative effect on him.  Further, the Tribunal was not satisfied that there was a real chance that the issue of A’s alleged involvement would be raised in any substantive way if the applicants were to return to Sri Lanka and if what they know were to be revealed.  The Tribunal was unable to accept that the applicants have information of a kind which has not been aired already.  The Tribunal did not accept that A has acted to silence the applicants in the past or that there was a real chance he would do so in the future in relation to the information they claim to have.

5                     The applicants’ first ground in their amended application for review alleges that the decision of the Tribunal was made in breach of an indispensable condition or an essential pre-condition to, or any inviolable limitation or restraint upon, the power conferred upon the Tribunal and the jurisdiction necessary for the existence of the satisfaction required by s 65 and its jurisdiction to conduct the review pursuant to s 414 of the Act.  The Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction.  Particulars are given as follows.  It is said that the Tribunal failed to consider the applicants’ case as presented in that it failed to deal with the applicants’ fears of persecution by A and/or B themselves by reason of the perception that the applicants on return to Sri Lanka might reveal or disclose the details of those persons’ involvement in the assassination of C giving rise to a well-founded fear of persecution for reasons of imputed political opinion. 

6                     It is accepted that the decision of the Tribunal is a “privative clause decision” and thus subject to s 474(1) of the Act, introduced in 2001, 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.”

7                     It is also accepted that s 474(1) is subject to the satisfaction of the pre-conditions of validity stated in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 616, namely that the decision-maker has made a bona fide attempt to exercise is power, that the decision relates to the subject matter of the legislation and is reasonably capable of reference to the power given to the decision-maker. 

8                     The recent decision of the Full Court of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 makes it clear that once the authority of a body like the Tribunal is validly invoked by the making of a valid application for review to a validly constituted Tribunal, the exercise of its authority and powers comes within the expanded area of authority and powers conferred by s 474(1), with the consequence that the Tribunal’s decision is lawfully made: see at [37] and [639].

9                     It is therefore not open to this Court to entertain an application for review based on the kind of error alleged in ground one. The majority in NAAV held that a decision infected by error of a jurisdictional nature of the kind recognised in Craig v South Australia (1995) 184 CLR 163 at 179 and Minister for Immigration and Multicultural Affairs v Yusuf  (2001) 180 ALR 182 will be validated by s 474(1):  see NAAV at [639] per von Doussa J with whom Black CJ at [4] and Beaumont J at [277] agreed.  Counsel for the applicants relied on what was said by Tamberlin J in SBBK v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 565 at [44] to the effect that a failure by a Tribunal to consider the correct issue can still invalidate a decision notwithstanding s 474(1).  However, that view was expressly overruled in NAAV at [639]; see also NAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 at [59]-[60]. 

10                  Ground two alleges that the Tribunal asked itself the wrong question, identified the wrong issue and failed to take account of relevant material and its decision was made without jurisdiction or was affected by want of jurisdiction.  The particulars under ground one are repeated.  It is further said that the Tribunal misstated the base upon which the applicants’ fears of persecution were framed and asked itself the wrong question.  It is also said that the Tribunal “ignored or failed to take into account” relevant material, namely the evidence of threats by A to the third applicant to kill her and the other two applicants. 

11                  As to the last mentioned matter, the Tribunal noted in its recital of the evidence that A had been in custody and was released on bail on 20 August 1997.  The first applicant said that A had told her daughter after his release that he would kill the family if the first applicant went to the court and that he (A) had a person who had already killed two people.  This allegation is not otherwise directly referred to in the reasons, although the Tribunal did say after reviewing various allegations by the applicants:

“Given the disagreement about who was responsible for what occurred now more than eight years ago, I am unable to be satisfied that there is a real change that the issue of (A’s) alleged involvement would be raised in any substantive way if the applicants were to return to Sri Lanka and if what they claim to know were to be revealed.  I do not accept that (A) has acted to silence the applicants in the past as has been claimed and I do not accept that there is a real chance that he would do so in future in relation to the information they claim to have.”

12                  A fair reading of this includes a non-acceptance of the evidence as to A’s acting by making threats to the daughter.  Otherwise ground two meets the same insuperable obstacle in the form of s 474(1) as does ground one. 

13                  Ground three is that the decision of the Tribunal was made in excess of jurisdiction and/or it constructively failed to exercise its jurisdiction in that it did not act in good faith in making the decision and/or the decision did not involve a bona fide attempt to exercise power pursuant to s 65.  Particulars of this ground are that the Tribunal did not approach the applicants’ claims and their application with a mind open to persuasion, that it made the decision with a mind directed to deciding the claims and application adversely to the applicants and did not address the applicants’ claims by asking whether they met the criteria but on the basis that it should look for reasons why it could reject their claims. 

14                  In support of this ground counsel relied on what was said to be the “blatant disregard of the daughter’s evidence” and also a number of instances from the transcript of the hearing which were said to be repeated instances of rejection or dismissal of assertions which could not be said to be in any way implausible or not credible as a matter of logical human experience and which reflected a mind closed to inferences that were favourable to the applicants.  An example is the following passage.  The first applicant was giving evidence through an interpreter.  The applicant said that A had been in charge of the propaganda for the election campaign for the UNP in 1994:

“Interpreter:  He’s the person who has been designing posters and all that sort of thing for the Colombo District, and under his name all those posters have gone, and in fact he requested this lady to send a poster to us, if possible. 

Tribunal:         Not for me.  I don’t need a poster – for you to have? 

Interpreter:     Because as the propaganda person, his name has been mentioned around the poster.

Tribunal:         Don’t imagine that you need to get that for me.  I’ve looked on the Internet and I can find no mention of him having any involvement in this just past campaign.

Interpreter:     That is why we asked them to send a poster, so that we can submit it to you.

Tribunal:         Well, I don’t want it, thank you.  I mean, I’m just saying to you that his name might be on the bottom of the poster but he hasn’t appeared in any of the news items that are extensively reported on the Internet about the election, but be that as it may, he has obviously been involved in the UNP for a long time and he might have been involved.

Interpreter:     In fact we wanted to submit to the Tribunal a photograph which was taken with the present Prime Minister, the Deputy Leader and (A) appears in that photograph.

Tribunal:         So what am I supposed to make of that?

Interpreter:     That means that he’s still having political connections with them.

Tribunal:         If he’s still got political connections, I’m not disputing that.  There’s plenty of other things for me to dispute.”

15                  A fair reading of this passage merely indicates that the Tribunal member was taking a view, based on information which she disclosed to the first applicant, that A’s involvement in the campaign was not as great as she was suggesting.  The use of the word “dispute” is not indicative of a closed mind.  In context, bearing in mind that the Tribunal only conducts a hearing if not satisfied on the papers (see s 425(2)(a)), it does no more than convey that there were matters about which the Tribunal wished to enquire and as to which it was, at the moment, not satisfied. 

16                  Another example was when the Tribunal was asking about the first applicant’s divorce from A:

“Tribunal:       How long does it take to get divorced in Sri Lanka?

Interpreter:     Once you file the divorce application in the courts, it depends on the time taken to hear the case.

Tribunal:         But can it be as quick as that?

Interpreter:     Sometimes I don’t know if they adhere to the law, but A is a person who doesn’t care about the law.

Tribunal:         We need to go a bit beyond that.  Don’t just say that to me all the time about him.  I don’t want you to tell me all these things about him.  It’s just pointless.  I will ask you particular things about his political involvement, but you don’t need to gratuitously give me these little remarks.”

At worst this might display a degree of irritation on the part of the Tribunal member.  It falls far short of actual bias or lack of good faith. 

17                  It is not my intention to turn to all the instances counsel for the applicants relied on.  The foregoing are, I think, a fair sample.  They may display a vigorous approach by the Tribunal member but nothing at all in my opinion unfair or disclosing bias or lack of good faith.

18                  An allegation of lack of good faith is a serious one.  The circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme: see SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [44].  The allegation implies a lack of an honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision maker: see NAAV at [107].  An allegation of bad faith, like an allegation of fraud, should not be advanced by an advocate unless there are proper grounds for doing so: see SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397 at [19].

19                  In my view there are no proper grounds for such an allegation here.  Indeed, a fair reading of the transcript as a whole reveals a number of occasions where it is clear that the Tribunal member conveyed human empathy with the position of the first applicant.  For example, the first applicant had said that she withdrew from active involvement in the UNP’s Women’s Group in 1994 and said through the interpreter:

“Applicant:     I had realised what politics involved and then thereafter I really gave up all those things.

Tribunal:         It just sounds like a huge amount of unpaid work to me, Mrs (VDAE).  I think that politicians’ wives all over the world would identify with what you have described.  What I want to talk to you about now is your family in Sri Lanka.  Are you parents still alive?”

20                  I think the most effective answer to the allegation of bad faith made by counsel is what the first applicant said herself at the conclusion of the hearing.  There had been an earlier hearing of the Tribunal whose decision had been set aside by this Court.  The hearing with which we are concerned was thus her second experience of the Tribunal.  The following passage appears:

“Tribunal:       Are there any other things that you want to say to me today, either of you? 

Interpreter:     No.  She wants to know whether there are any other areas where they have not covered.

Tribunal:         No, I’ve covered all the things that I need to know.  I’ve given you a very clear picture of the critical issue I think that I have to decide on and that is whether there’s a real chance that this knowledge that you have would lead to you to be persecuted, and I’ve told you about some of the problems that I had.

Interpreter:     She felt that you have read a lot about that case.

Tribunal:         I have.  I should have said at the beginning actually that you can count on members usually – usually - to have read everything that comes before us.  I certainly have read everything here that’s on the file about your application, and we have to do that carefully so that when we come to the hearing, we can talk about the things that are problems that -you know, the issues.

Interpeter:       She is satisfied more than the last enquiry because she’s afraid that she hadn’t been asked whatever had to be asked, and she’s clear that you know about the whole case, and she says she’s satisfied with that.

Tribunal:         Good.  I’m glad.  Thank you very much for saying that.  It’s encouraging to know that we have actually thought about that.

First Applicant:  I had big cry.  I was upset, you know.  You can read all the lot.

Tribunal:         No.  I can read it.  We have complicated things.  That’s my job Mrs (VDAE).  You don’t have to thank me for it in any event but thank you anyway.  I have read it carefully.  I have told you about the issue that I have to think about and it’s the question of whether there is a real chance you could be harmed.  I’ll think about this and we’ll write to you in a while.  I don’t know,  it will probably take a few weeks actually before I get to this.

Interpreter:     She’s all alone now and only she has to live with the child.  So if something happens to her, the child will get lost.

Tribunal:         Well yes alright.

Interpreter:     And she’s very good in her education here.

Tribunal:         Is she?  That’s good.  She would probably be good in her education wherever she was, but that must be very pleasing for you to see her doing well at school.  I know you want to stay here, Mrs (VDAE) but the only think that I can do is to think about what would happen to you if you were to go back to Sri Lanka,  whether there is a real chance that you would face serious harm.  I explained at the beginning my role is a very limited one.  I am sure you had a sleepness night last night getting ready for this so hopefully now you’ll feel a bit relieved that it’s over,  but I’ll think about it carefully and we’ll write to you soon.  Thank you very much.”

21                  I do not think there is any basis for contending that the Tribunal did not make a good faith attempt to carry out its difficult task.

22                  The application will be dismissed with costs.

Associate:

Dated:              16 December 2002