Applicant WAFV of 2002 v Refugee Review Tribunal

Case [2003] FCA 16

FEDERAL COURT OF AUSTRALIA

Applicant WAFV of 2002 v Refugee Review Tribunal [2003] FCA 16

MIGRATION – judicial review – refugee – Refugee Review Tribunal – breach of natural justice – whether indicative of want of good faith – criteria for establishing want of good faith – high threshold – evaluative concept – not limited to dishonesty, malice or personal interest – encompasses reckless or capricious decision-making – not obverse of bad faith – requires conscientious attempt to exercise power – applicant asserting Afghan nationality – Tribunal reliance upon linguistic analysis – inadequate provision of content of analysis to applicant – unfair – not indicative of want of good faith – application dismissed

Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) s 474

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 cited
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited
R v Murray; Ex parte Proctor (1949) 77 CLR 387 cited
Little v The Commonwealth (1947) 75 CLR 94 cited
Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 152 ALR 127 cited
Westminster Corporation v London and North Western Railway Company [1905] AC 426 cited
Webb v Minister of Housing and Local Government [1965] 1 WLR 755 cited
Roberts v Hopwood [1925] AC 578 cited
Cannock Chase DC v Kelly [1978] 1 WLR 1 cited
Western Fish Products Ltd v Penwith DC [1981] 2 All ER 204 cited
SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547 cited
SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 cited
SBAP v Refugee Review Tribunal [2002] FCA 590 cited
NAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 cited
NACL v Refugee Review Tribunal [2002] FCA 643 cited
Kordan v Federal Commissioner of Taxation (2000) ATC 4812
Daihatsu Australia Pty Ltd v Commissioner of Taxation (2001) 184 ALR 576 cited
NAAP v Minister for Immigration &  Multicultural &  Indigenous Affairs [2002] FCA 805 cited
SBAU v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1076 cited
NADR v Minister for Immigration & Multicultural  & Indigenous Affairs [2002] FCAFC 293 cited
NAAQ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 300 cited
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 cited
SBAQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 985 cited
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 cited
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 cited
Kamal v Minister for Immigration & Multicultural Affairs [2002] FCA 818 cited
Latif v Minister for Immigration & Multicultural Affairs [2001] FCA 1701 cited

Wade and Forsyth, Administrative Law, 8th ed, Clarendon Press, 1994 at 413-414
De Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed, Sweet & Maxwell, 1995 at 553
Craig, Administrative Law,

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Applicant WAFV of 2002 v Refugee Review Tribunal [2003] FCA 16
Case
[2003] FCA 16
Decision Date

CaseChat Overview and Summary

In the Federal Court, the Applicant, a visa applicant, challenged a decision of the Refugee Review Tribunal (RRT), which was a decision to refuse the grant of a protection visa. The Applicant argued that the Tribunal had not exercised its power in good faith. The central issue before the court was whether the Tribunal’s decision could be reviewed on the ground that it was not a bona fide exercise of its power, despite the privative clause in the Migration Act. The court examined whether the privative clause precluded judicial review on the ground of want of good faith and whether the Tribunal had exercised its power in good faith.

The court found that the privative clause in the Migration Act precluded judicial review on the grounds of want of good faith. The court relied on the construction of the privative clause in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs and the principles articulated by Dixon J in R Hickman; Ex parte Fox and Clinton. The court held that the privative clause effectively precluded judicial review on the grounds outlined by the Full Court, including the ground of want of good faith. The court further held that the requirement for a bona fide attempt to exercise power was distinct from the mere absence of bad faith. The court concluded that the Applicant had not demonstrated that the Tribunal had failed to make a bona fide attempt to exercise its power.

The court dismissed the application and ordered that the Applicant pay the respondents’ costs of the application. This decision underscored the limited grounds for judicial review of decisions made under the Migration Act, particularly in light of the privative clause.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant is to pay the respondents’ costs of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH J
The jurisdiction of the Federal Court in relation to decisions under the Migration Act 1958 (Cth) derives primarily from s 39B of the Judiciary Act which provides in the relevant parts:“39B(1) Subject to subsections (1B) and (1C), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.39B(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a)in which the Commonwealth is seeking an injunction or a declaration; or (b)arising under the Constitution, or involving its interpretation; or(c)arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.”The Migration Act, following its most recent amendments, creates a class of decision called a “privative clause decision”. Such decisions are defined in s 474(2) thus: “474(2) In this section: “privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).”Section 474(3) defines “decision” in broad terms which it is not necessary to enter into at present. It is not in dispute that the decision of the Tribunal, the subject of review in this case, is a “privative clause decision” within the meaning of s 474(2). Section 474(1) provides: “474(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.” This provision has been construed by the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 as effectively precluding judicial review of decisions to which it applies on any of the following grounds: 1.The decision exceeds the constitutional limits upon legislative power imposed by the Commonwealth Constitution.2.The decision was not made in good faith.3.The decision was not reasonably capable of reference to the power under which it was made.4.The decision related to the subject matter of the legislation.5.The decision was not made in breach of an inviolable limitation on the power under which it was purported to have been made. The Refugee Review Tribunal is established by s 457 of the Act. It has the obligation, under s 414, of reviewing, inter alia, decisions to refuse the grant of protection visas (ss 411 and 414). In undertaking such a review it may exercise all the powers and discretions conferred by the Act on the person who made the decision (s 415(1)). It may: (a)affirm the decision;(b)vary the decision; or(c)if the decision relates to a prescribed matter – remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or(d)set the decision aside and substitute a new decision (s 415(2)).Where the Tribunal varies or sets aside the decision and substitutes a new one, the varied or substituted decision is taken to be a decision of the Minister (s 415(3)).

Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

Also relevant in the present case are ss 424A and 425 of the Act. Section 424A provides, inter alia that: “424A(1) Subject to subsection (3), the Tribunal must: (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c)invite the applicant to comment on it.”Subsections (2) and (3) are not material. Section 425(1) requires the Tribunal to invite the applicant to appear before it, to give evidence and present argument relating to the issues arising in relation to the decision under review. Want of Good Faith as a Ground of Review in Migration Act Cases The primary ground of review in this application is that the Tribunal’s decision was not a bona fide exercise of its power. This ground invokes one of the grounds of review left open after the enactment of s 474 as construed by the Full Court in NAAV. The Court’s construction of that section relied upon the approach to the construction of privative clauses enunciated by Dixon J in R Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. The relevant passage in the judgment of Dixon J, which concerned Reg 17 of the National Security (Coalmining Industry Employment) Regulations 1946 (Cth), appeared at 614-615 in the following terms: “The particular regulation is expressed in a manner that has grown familiar. Both under Commonwealth law, and in jurisdictions where there is a unitary constitution, the interpretation of provisions of the general nature of reg 17 is well established. They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.” (emphasis added)It is to be noted immediately that what is required by the decision-maker is not “bona fides” at large but “a bona fide attempt to exercise its power…”. While this is not to be read as though it were a statutory phrase, its composite character should be recognised. The Tribunal must attempt to exercise its power and that attempt has to be made in good faith. It does not logically follow that a failure to make a bona fide attempt to exercise its power amounts to bad faith. That is to say the requirement of good faith in this context requires more than the mere absence of bad faith.