Applicant WAFV of 2002 v Refugee Review Tribunal

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.