WAAA v Minister for Immigration & Multicultural Affairs [2002] FCA 132 (14 February 2002)

Last Updated: 21 February 2002

FEDERAL COURT OF AUSTRALIA

WAAA v Minister for Immigration & Multicultural Affairs [2002] FCA 132

MIGRATION - application for review - application lodged 2/10/01 - whether decision of tribunal in the particular circumstances was final and conclusive

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 36(2), 474(1), 476,

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

R v Proctor; Ex parte Murray [1949] HCA 10; (1949) 77 CLR 387 cited

Walton v Philip Ruddock, The Minister for Immigration & Multicultural Affairs [2001] FCA 1839 referred to

WAAA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W457 of 2001

RD NICHOLSON J

14 FEBRUARY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W457 of 2001

BETWEEN:	WAAA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	14 FEBRUARY 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W457 of 2001

BETWEEN:	WAAA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	14 FEBRUARY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1 The applicant brings an application seeking review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 20 September 2001. The application was lodged on 2 October 2001. It is brought in reliance upon s 476 of the Migration Act 1958 (Cth) ("the Act").

2 The applicant is a citizen of Sri Lanka. He arrived in Australia on 17 April 2001. On 7 July 2001 he applied for a protection (class XA) visa under the Act. That application was refused by a delegate of the respondent on 3 August 2001. The Tribunal in its review affirmed the decision of the delegate.

3 The applicant claimed a well-founded fear of persecution if he was to be returned to Sri Lanka. He did so on the grounds of his Tamil race and also both actual and imputed political opinion. He claimed to fear persecution from both the authorities and also the Liberation Tigers of Tamil Eelam ("LTTE"). The details of his factual claims may be summarised as follows:

(a) His house had been ransacked and set alight by rioters during the riots between Sinhalese and Tamil in 1980. During that incident his brother-in-law had been killed when caught inside a van which was set alight;

(b) In 1986 he had gone to Jaffna in the hope of joining the Tamil Eelam Liberation Organisation ("TELO"), but had not joined. He then returned to Colombo. In Colombo he had hidden some weapons for a TELO member named Kumar. The weapons were kept until 1989 when they were moved to the house of the applicant's sister. The weapons were found by the police at the applicant's sister's house. Kumar and others were arrested and the applicant went into hiding. The applicant believes the LTTE see him as having tipped off the police about the weapons, and that he is at risk from the LTTE should he return;

(c) The applicant left Colombo in 1990 as the police were after him, and moved to Negombo and lived there until 1993. He married and began a street stall, then acquired a three-wheel taxi;

(d) While working as a taxi driver, the applicant was on one occasion beaten by Sinhalese drivers. He reported it to the police who took no action;

(e) One day the applicant transported some goods for a regular customer. The following day (9 February 2001) he was told the police had been to his home and taken his wife to the police station. He discovered that the customer had been arrested for transporting weapons and that the police believed the applicant had transported weapons for that customer. The police were searching for the applicant and had posted a picture of him as a wanted man. A letter from an attorney at law in Negombo was provided in support of this claim, although the details of the incident were not the same;

(f) The applicant left Sri Lanka by boat in March 2001.

4 When the matter came before the Tribunal it dealt with it as follows in its reasons:

(1) It accepted the applicant and his family had problems in the 1983 riots but not that this indicated the applicant would face a real chance of persecution should he now return;

(2) It accepted as plausible the applicant's account of the hiding of the weapons in 1986-1989. However, it found it implausible that he would now be wanted for those events. In this finding, it had regard particularly to the applicant having lived without hindrance in Negombo, a short distance from Colombo, since 1990;

(3) It described the submission that the applicant risked capture or death from the LTTE as a result of these events in 1989 as fanciful;

(4) It accepted that the applicant worked a three-wheeler taxi and that he may have unwittingly transported weapons for someone. It did not accept as plausible that the authorities were seeking the applicant as someone suspected of involvement in transporting the weapons. In this finding it had regard to country information about the profile of those of interest to the authorities;

(5) It did not accept that the applicant's wife had been detained, and (having particular regard to inconsistencies between the applicant's account and that in the letter put forward by the applicant in support of his case) found the applicant's story about the problems claimed to have arisen in February 2001 to have been concocted;

(6) It found it was plausible the applicant had on one occasion been beaten by Sinhalese drivers, but did not see it as other than an isolated incident.

The Tribunal concluded that:

"Taking all of the applicant's claims into account the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason."

5 The reference by the Tribunal to a Convention reason was an invocation of the relevant provisions of the Refugees Convention and the Refugees Protocol. Respectively they are the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. They receive effect in Australian domestic law by operation in particular of s 36(2) of the Act. That provides a criterion for the grant of a protection visa such as that sought by the applicant is that an applicant for such a visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

6 In his application the applicant gave as his ground on which he sought review that the decision of the Tribunal did not consider the relevant immigration law concerning his fear of persecution. He did not further specify or particularise in what way it was that the Tribunal had not considered the Act.

7 In his oral submissions to this hearing the applicant said that the principal difficulty he had with the reasons of the Tribunal was that the Tribunal had not believed him. He said this had come about because the Tribunal had not scrutinised the facts. He offered to provide to this Court a telephone number of a police station in Sri Lanka and the registration number of a car from which support, he said, could be obtained for the facts which he had placed before the Tribunal. I take that to be relevant in particular to the matters summarised in par (5) above in the summary of the reasoning of the Tribunal.

8 The applicant also indicated that he would not have gone to the hardship of coming to Australia were it not for his having a well-founded fear of persecution. He claims to have a continuing fear that if he were returned to Sri Lanka he would suffer persecution.

9 The applicant is unrepresented by a lawyer and lacks legal skills. It is understandable that he should therefore not bring to the Court matters which on their face might arguably fall into the category of errors of law that could be examined by the Court. In common with many applicants it is difficult for him to fully understand that this Court, whatever its jurisdiction, does not have jurisdiction which entitles it to remake findings of fact made by the Tribunal. A finding of fact includes adverse findings of credibility.

10 In the case of the applicant there are particular considerations arising from the fact that his application was lodged with the registry of this Court on 2 October 2001. On that date, substantial amendments to the Act came into force. That was the result of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). The consequence of those amendments is that the jurisdiction of this Court is that which arises pursuant to s 39B of the Judiciary Act 1903 (Cth). The respondent does not dispute that the applicant's application should be treated as an application in the form requisite to invoke that jurisdiction.

11 The section on which the applicant relies in his application, s 476, was significantly changed by the amendments. Expressed in summary form, it now provides that this Court does not have any jurisdiction in relation to what is called a primary decision. It is no longer in the form which applicants prior to 2 October sought to invoke in its various paragraphs.

12 Even more significantly, s 474(1) of the Act, as in effect from 2 October states that the decision of the Tribunal:

"(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."

13 The effect of these provisions is complex and it cannot be anticipated that the applicant would be able to address them. In summary, as submitted for the respondent, the effect is:

"In order to impugn a decision covered by a privative clause an applicant must establish:

(a) that the constitutional authority of the Parliament to define the powers of the decision-maker has been exceeded;

(b) alternatively, that the exercise of power in the decision challenged was unrelated to the subject matter of the legislation;

(c) alternatively the decision made was, on its face, beyond power or was not an honest attempt to exercise the power conferred on the RRT under Part 7 of the Act. Despite the presence and scope of the privative clause, compliance with the obligation in question must have been intended to be an essential precondition to the exercise of the power (see R v Proctor; Ex parte Murray at 401)."

14 The effect of the amending Act has had the benefit of consideration by Merkel J in Walton v Philip Ruddock, The Minister for Immigration and Multicultural Affairs [2001] FCA 1839. That reasoning, together with my own reading of the amendments, enables me to accept the respondent's submission as appropriate for this case. Merkel J in pars 34 to 37 of his reasons also dealt with issues of procedural fairness/natural justice, but they do not arise here. Counsel for the respondent envisaged them as being incorporated within the second sentence of par (c) of the above formulation of the effect of the amendments.

15 In par 45 of his reasons in Walton, Merkel J lists the issues requiring determination in a case such as the present involving the operation of s 474. That list reads:

"...the issues requiring determination in a case involving the operation of s 474 are:

§ whether there was a failure to observe or comply with any provisions of the Act or of any other requirement imposed by law (including a failure to comply with the rules of natural justice) in respect of the decision;

§ whether the decision was a privative decision but, in particular, whether the decision was a decision "made, proposed to be made, or required to be made, as the case may be, under this Act";

§ whether, interpreting the Act as a whole (including s 474), the requirement that was not observed or complied with was one that the legislature required must be observed or complied with, in the sense that the legislature imposed the requirement as an "indispensable condition", "imperative duty" or an "inviolable limitation or restraint" when it is sought to exercise the power conferred under the relevant provisions of the Act;

§ whether the decision involved jurisdictional error, in the sense of refusal to exercise jurisdiction or excess of jurisdiction;

§ if the jurisdictional error was a failure to comply with the rules of natural justice, whether review of the decision on that ground is excluded by s 474;

§ if the requirement was not one that must be observed and did not involve jurisdictional error, was the decision a bona fide attempt to exercise the decision maker's power, was it related to the subject matter of the legislation and was it reasonably capable of reference to the power given to the decision maker."

16 I have had regard to that list, which does not arise for any necessary further consideration in the circumstances of this particular case.

17 Here, the decision of the Tribunal was undisputedly one made on review of the decision of the delegate to refuse to grant a protection visa to the applicant. There is no question that the Tribunal honestly attempted to deal with the subject matter confided to it under the Act and to act in pursuance of its powers. The approach adopted by the Tribunal, as summarised above, and as read in full, does not manifest a legally erroneous view of its task. This is not a case where there is any alleged identification of a requirement or limitation on the exercise of power by the Tribunal with which it has not complied and which, notwithstanding the effects and terms of s 474, is said to be essential to a valid decision.

18 The consequence is that as a result of the amendments to the Act made by the Parliament of Australia, in the particular circumstances of this matter, the decision of the Tribunal is final and conclusive. That means that this Court must, as a matter of law, dismiss the application.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Associate:

Dated: 21 February 2002

The applicant represented himself
Counsel for the Respondent:	Mr JD Allanson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 February 2002
Date of Judgment:	14 February 2002