NAFS and NAFT v Minister for Immigration - [2002] FMCA 238

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAFS & NAFT v MINISTER FOR IMMIGRATION

[2002] FMCA 238

MIGRATION – Application for review of decision of the Refugee Review Tribunal – no jurisdictional error – bona fide attempt – privative clause decision – application dismissed.

Migration Act 1958
Migration Legislation Amendment (Judicial Review Act) 2001
Judiciary Act 1903
Income Tax Assessment Act 1936

Paramananthan v MIMA (1998) 94 FCR 28
MIMA v Sarrazola[No. 2] (2001) 107 FCR 104
MIMA v Applicant S [2002] FCAFC 244
Craig v South Australia (1995) 184 CLR 163
MIMA v Yusuf (2001) 180 ALR 1
SBBK v MIMA [2002] FCA 265
NAAV v MIMIA [2002] FCAFC 228
R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598
Zahid v MIMIA [2002] FCA 1108
Sellamuthu v MIMA (1999) 90 FCR 287
NABM of 2001 v MIMIA [2002] FCAFC 294
NADR v MIMIA [2002] FCAFC 293
NAAG of 2002 v MIMIA [2002] FCA 713
MIMA v Khawar [2002] FCA 14
MIMA v Applicant Z [2001] FCA 1823
Daihatsu Australia Pty Ltd v Commissioner of Taxation (2001) 184 ALR 576
R v Murray; Ex parte Proctor (1949) 77 CLR 387
Commissioner of Taxation v Stokes (1996) 141 ALR 653
NAGT v MIMA [2002] FCA 815

Applicants:

NAFS & NAFT

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ429 of 2002

Delivered on:

16 October 2002

Delivered at:

Sydney

Hearing Date:

5 September 2002

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicants:

Mr G. Johnson

Solicitors for the Applicants:

Rutland’s Law Firm

Counsel for the Respondent:

Mr D. Jordan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application be dismissed.
That the applicants pay the respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ429 of 2002

NAFS & NAFT

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 13 March 2002 affirming a decision of the respondent (the Minister for Immigration and Multicultural and Indigenous Affairs) to refuse to grant protection visas to the applicants.
The applicants applied to the Federal Court under s.39B Judiciary Act 1903 on 16 April 2002. The matter was transferred to this Court by Lindgren J on 14 June 2002.
The applicants, who are citizens of the Peoples Republic of China (China) are husband and wife. Only the applicant husband (the applicant) made specific claims under the Refugees Convention. His wife sought a protection visa on the basis of her family relationship with the applicant.
In China the applicant husband had been employed at a poultry factory in Shanghai which was a government enterprise and subsidiary of the Shanghai Poultry and Egg Corporation (the Shanghai Corporation). In 1994 he was sent by the Shanghai Corporation to develop and manage a poultry farm in Australia which was operated by SS Foodstuffs Pty Limited a company in which the Shanghai Corporation was the majority shareholder.
In 1996 the applicant husband became ill and complained to SS Foodstuffs about his working conditions. He claimed that this resulted in him being treated as a pariah. The company sent the applicant’s wife from China to assist him.
In June 1998 the applicant husband again complained about his working conditions to officials of the Shanghai Corporation visiting Australia. He was dismissed from his employment and ordered to return to China with his wife. He states that he refused to do so because he feared persecution because the corporation is a Chinese Government enterprise.
In February 2001 the applicant and his wife lodged claims against SS Foodstuffs for unfair dismissal and underpayment of Australian award wages in the Industrial Relations Commission (IRC). He sought compensation for unpaid wages and leave entitlements. He claimed that corporation officials went to his father’s home in China and said that he had acted against the company, that he must be punished and that he would not have any work. He claimed that his father was threatened and that he now fears persecution, particularly deprivation of work and rights as Chinese citizens from the government. The applicant also claimed that directors of SS Foodstuffs visited him in Australia and advised him not to pursue the action in the IRC.
The Tribunal held a hearing on 18 February 2002. The applicant told the Tribunal that the unfair dismissal claim had been dismissed by the IRC due to the delay in commencing proceedings. He claimed that he would be persecuted in the sense that the Shanghai Corporation would retaliate against him and pursue him for liability because he had damaged the company’s reputation and they had to spend money and send people to Australia. He suggested that the corporation would bring a law suit against him to recover the costs in the case he had brought in the IRC and to bankrupt him. This would occur despite the fact that the complaint to the IRC had not been heard because the corporation would wish to save face and reputation and to make an example of him to others in the Shanghai Corporation. He stated that he had also offended an Australia director of SS Foodstuffs when he told visiting directors of the Shanghai Corporation in 1998 that the amount of money the director said that he had spent on the Australian poultry farm operation was incorrect. The applicant thought some of the money had been taken but he did not know this and could not prove it.
On the basis of these concerns the applicant submitted through his adviser that he would be targeted not for reason of his political opinion but for reason of his membership of a particular social group “of those who challenge or point out corruption”.

The Tribunal’s findings

The Tribunal rejected the claim of persecution for reason of membership in a particular social group being “those who challenge or point out corruption”. It added that even assuming that such people were a particular social group within the meaning of the Refugees Convention the Tribunal did not accept, on the basis of his own evidence, that the applicant challenged or pointed out corruption. He had merely told Shanghai Corporation directors that he did not think the amount spent on the farm was correct. His case in the IRC was not about possible corruption or mismanagement of funds but was a case of an individual who believed he had been dismissed unfairly and paid under award wages. Further the case had been dismissed without the substance of the claim being heard.
The Tribunal was not satisfied that the treatment feared by the applicant on return to China was directed at him for a Convention reason including, in the applicant husband’s case, for reason of his membership of a particular social group of people who point out or challenge corruption or even for reason of his actual or imputed political opinion arising from having acted against the Chinese Government by challenging or acting against the Shanghai Corporation (a State-owned enterprise) or for any other Convention reason. Rather the Tribunal found that on the applicant’s own evidence any redress to be sought by the Shanghai Corporation in China would be motivated by a desire for compensation from the applicant as an individual for the time and cost spent in relation to the Industrial Relations Commission proceedings.

The applicant’s submissions

The applicant husband submitted that he had a well-founded fear of persecution in China by reason of membership of a particular social group into which would have been placed as a result of the actions of the husband which were detrimental, or perceived to be detrimental, to Chinese interests – particularly to the Shanghai Corporation.
It was submitted that the Tribunal was obliged to consider not only the particular social group formulated by the applicants (or their representative), but also any other particular social group requiring consideration on the material before the Tribunal.
It was claimed the Tribunal’s failure to do so was jurisdictional error of the kind recognised in Craig v South Australia (1995) 184 CLR 163 at 177-179 and MIMA v Yusuf (2001) 180 ALR 1 at 82 as the Tribunal had failed to consider and answer questions it was obliged to address.
In particular it was said that the Tribunal did not consider whether the applicant had a well-founded fear of persecution by reason of membership of any particular social group other than “those who challenge or point out corruption”. It was pointed out that the applicant’s claims were not limited to matters involving corruption or dishonesty. The Tribunal had accepted that the applicant had brought legal proceedings in Australia for unfair dismissal against a Chinese Government enterprise controlled by Shanghai Corporation which is a government owned corporation. The applicant claimed that he feared that he would be punished on return to China as a result of this claim because the Shanghai Corporation would want revenge on him or to punish him because he had cost time and money and had refused to return home.
The applicant’s Counsel submitted that there were a number of other possible particular social groups into which the applicant could fall which should have been considered by the Tribunal. For example he raised the possibility that there might be a group comprised of people who had criticised Chinese Government owned corporations abroad and/or who had brought proceedings against such corporations abroad and/or who had exposed such corporations to costs. It was said that the Tribunal should have asked whether there was a particular social group in China into which the applicant would fall and if so whether he would face a real chance of persecution by reason of such membership.
It was claimed that the Tribunal was not entitled to reject as “individual persecution” the applicant’s fear of reprisal for the industrial proceedings in Australia and/or their cost, without first addressing whether there was some other formulation of “particular social group” into which he fell and whether any persecution would be by reason of such membership.
Reference was made to SBBK v MIMA [2002] FCA 265 in which Tamberlin J had found that the Tribunal had made a fundamental error by failing to address a central question of whether the applicant was a member of a particular social group comprised of “women in Iran” or “divorced women in Iran”. It was submitted that the protection of the Hickman principle could not extend to such an error as the need to address such particular social groups was in the nature of an essential precondition to the exercise of the Tribunal’s power.
It was conceded by the applicant that the Court was bound to follow the decision of the Full Court of the Federal Court in NAAV v MIMIA [2002] FCAFC 228 but submitted that the decision, at least as regards any majority reasoning in the appeals that was inconsistent with the submissions, was wrongly decided. It was further suggested that the argument based on SBBK was consistent with the reasoning of members of the Federal Court in NAAX other than von Doussa and Beaumont JJ.
Furthermore it was argued that there had been no attempt or no genuine attempt by the Tribunal to address questions that ought to have been addressed. Hence there was no “bona fide attempt” to exercise power and that hence the Tribunal decision would not be validated by the privative clause. It was argued that “bona fide attempt” in the Hickman sense is not demonstrated merely by showing that the decision maker was bona fide.

The respondent’s submissions

The respondent submitted first that there was no jurisdictional error and secondly that if there was a jurisdictional error the decision was validated by section 474(1) of the Migration Act in accordance with the majority reasoning in NAAV.
It was submitted that there was no failure by the Tribunal to deal with the claims advanced by the applicant. It was said that there was no evidence to suggest that there was some other particular social group to which the applicant belonged and that the applicant’s submissions merely pointed to collections of individuals with no externally perceivable link as to their unifying characteristics which define them as a social group. (See NAAV v MIMIA [2002] FCAFC 228). It was also said that there was no evidence before the Tribunal of such a group or of other members of such a group taking some sort of equivalent action and that in so far as the argument was based on the IRC action this was an individual dispute.
It was also submitted that the Tribunal in fact addressed not only the claim in relation to the alleged particular social group of those who challenge or point out corruption but also the possibility that there might be some other particular social group such as persons who challenge or embarrass a government owned enterprise. This was dealt with by the Tribunal in dealing with the possibility that the applicant was persecuted for reason of his actual or imputed opinion arising from having acted against the Chinese Government by challenging or acting against the Shanghai Corporation State-owned enterprise. By characterising this issue as a political opinion issue and dealing with it in that way the Tribunal was said to have avoided the need for the applicant to establish that he was a member of another particular social group for the purposes of the Convention.
Counsel for the respondent suggested that the issue of a particular social group was dealt with implicitly in the Tribunal’s affirmative finding that retribution, if there was to be any in China, would be for individual reasons not for any other reason.
It was also submitted that on the reasoning in NAAV (in particular the decision of von Doussa J with whom Beaumont J agreed and with whom the Black CJ agreed in relation to jurisdictional error) this was not a case in which there was a breach of any inviolable limitations. Furthermore it was clear from NAAV that jurisdictional errors of the Craig type were validated by section 474.
As to the argument that there was not a bona fide attempt to exercise power, it was submitted that the concept “bona fide” involves a serious question involving personal fault on the part of the decision-maker going beyond error of fact or law that must be clearly identified and proved. The issue was whether there was a bona fide attempt to exercise the power, not whether there was a bona fide attempt to ask the right question. In this case the Tribunal was exercising its power under the Migration Act, was acting in good faith and exercised the power in accordance with law.

The applicable law

It was common ground that the Tribunal’s decision is a privative clause decision within the meaning of section 474(2) of the Migration Act 1958 and is thus subject to the limitations on judicial review prescribed by section 474(1) which were introduced by the Migration Legislation Amendment (Judicial Review Act) 2001 as applicable to all applications made to the Court on and from 2 October 2001.
The proper construction of s.474 has now been the subject of detailed consideration by the Full Court of the Federal Court in NAAV v MIMIA [2002] FCAFC 228. Each member of the Court delivered a separate judgment in relation to each appeal. All agreed that s.474(1) is constitutionally valid and that the amendments have removed what would otherwise be errors in the making of some migration decisions from the scope of judicial review by validating decisions that might otherwise have been invalid.
There was broad agreement that s.474(1) is not to be read literally but is to be construed in the same manner as the kind of privative clause considered in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598. In that case Dixon J observed at 615:
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.
There was also broad agreement in NAAV that the purported exercise of power by the decision-maker must not be one that contravenes what is variously described as an ‘inviolable limitation or restraint’ (Black CJ at [12]), a ‘final limitation upon the powers, duties and functions of the decision-maker’ (von Doussa J at [619]) or a ‘structural’ element in the operation of the Act (Black CJ at [37]). As a matter of construction, the broad statement of legislative intention expressed in a privative clause may be displaced by a provision which makes clear Parliament’s intention that the observance of some procedure or the proper consideration of some issue is to be a precondition for a valid decision. As outlined by Sackville J in Zahid v MIMIA [2002] FCA 1108, there is a difference between the approach taken by the majority (Black CJ, Beaumont and von Doussa JJ) and that of the minority (French and Wilcox JJ) in relation to the correct approach to such final or inviolable limitations on the decision-maker’s powers.
There are two aspects of these decisions of particular relevance. The first relates to the applicant’s argument based on the principles enunciated by the High Court in Craig v South Australia (1995) 184 CLR 163 and MIMA v Yusuf (2001) 180 ALR 1 that a decision-maker will fall into jurisdictional error if it identifies a wrong issue, asks itself the wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion.
In this case the applicant husband claimed fear of persecution for reason of his membership of the particular social group of ‘those who challenge or point out corruption’. Unlike SBBK this is not a case in which the Tribunal failed to consider a social group suggested by the applicant. The question is whether, on the material before it, the Tribunal was obliged to consider (inter alia) whether there was some particular social group of which the applicant was a member (other than the one identified by him) within the meaning of the definition of ‘refugee’ in Article 1A(2) of the Convention Relating to the Status of Refugees 1951 and whether the applicant as a member of that particular social group, had a well-founded fear of persecution if returned to China.
A number of authorities have endorsed the principle that the Tribunal ‘is not to limit its determination to the case articulated by an applicant of the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant. That obligation arises by reason of the nature of the inquisitorial process and is not dependent upon whether the applicant is or is not represented’.(Merkel J in Paramananthan v MIMA (1998) 94 FCR 28 at 63. See also Sellamuthu v MIMA (1999) 90 FCR 287 at 294 per Hill J, MIMA v Applicant S [2002] FCAFC 244 at [73] per Stone J and Applicant NABX of 2002 v MIMIA [2002] FCAFC 249 at [31].
However, this principle requires consideration of the evidence and material before the Tribunal. (See MIMA v Khawar [2002] FCA 14 and MIMA v Applicant S [2002] FCAFC 244). The applicant’s Counsel referred to Tribunal findings as to the legal proceedings in Australia against a Chinese government controlled enterprise, which in turn was controlled by a government-owned corporation and the applicant’s claimed fears of punishment as a result of his IRC claim because the government-owned corporation is said to want revenge on him or to punish him or to make an example of him as he claims. These are matters that relate to the applicant personally. He also claimed that his replacement at the poultry farm said things on his (the applicant’s) behalf in China and as a result was dismissed and unable to return to Australia although his visa was still valid.

These matters and the other material before the Tribunal of which the court is aware do not support a finding that Chinese society, or some clearly identifiable section of it, perceives there to be some other particular social group or distinct social unit of which the applicant is a member. I note in this respect that the particular social group must exist independently of, and not be defined by, the form of persecution feared (Applicant A v MIEA (1997) 190 CLR 225 at 242 per Dawson J at 263 per McHugh J and at 185 – 186 per Gummow J), although the actions of persecutors may ‘serve to identify or even cause the creation of’ a particular social group in society (McHugh J at 264). In this case there was nothing before the Tribunal to indicate institutionalised discrimination against a ‘social unit’ with ‘internal linking or unity of characteristics, attributes, activities, beliefs, interests or goals’ as McHugh J said at 264. Nor is there evidence that the applicant has attributes which identify him as a member of a group. Both McHugh and Gummow JJ in Applicant A express the view that a collection of individuals albeit with similar characteristics do not comprise a particular social group. Gummow J agreed with what Burchett J said in giving the judgment of the Full Court of the Federal Court in Ram v MIMA (1995) 57 FCR 565 at 569:
There must be a common unifying element binding the members together before there is a social group of that kind. When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the in the eyes of their persecutors, so that it is a fitting use of language to say that it is ‘for reasons of’ his membership of that group. (Also see Kiefel J in MIMA v Applicant Z [2001] FCA 1823 at [30]).
This is not a case where if the facts were as allegation by the applicant he may have established membership of a particular social group rather than being one of a collection of individuals. There is nothing to suggest that there is a relevant identifiable social unit with unity of characteristics, attributes, activities, beliefs, interests, or goals which sets a group apart from society at large (Applicant A at 264 per McHugh J and at 241 per Dawson J). There is no evidence either directly or by inference, that would have justified a conclusion by the Tribunal of a public perception that there was a recognisable group to which the applicant belongs. There was, for example, nothing to indicate institutionalised discrimination against any group. Indeed the only other person mentioned (the applicant’s replacement) is said to have been dismissed for speaking out on behalf of the applicant. This does not establish that he and the applicant share a common attribute which links them and sets them apart from society as a recognisable group. (MIMA v Applicant Z [2001] FCA 1823 at [31] per Kiefel J and at [31] per Sackville J.) There is no evidence to support a claim that there are factors (such as cultural, social, religious and legal factors) which would leave it open to the Tribunal to conclude that there is another relevant particular social group in China. (See MIMA v Khawar [2002] HCA 14 at [83] per McHugh and Gummow JJ). The applicant formulated some alternative social groups in this application. However there is no evidence to support a conclusion by the Tribunal that any such particular social group exists in China. It was said that the Tribunal did not rely on any country information reaching its decision but the applicant does not point to any particular relevant information not taken into account by the Tribunal.
I have taken into account the fact that the Tribunal has a broad inquisitorial function. It may initiate additional enquiries (s.424 and s.427(1)(d) of the Migration Act) but is not required to do so. As Stone J, with whom Whitlam J agreed, indicated in MIMA v Applicant S [2002] FCAFC 244 at [74] indicated the Tribunal cannot be in error in failing to come to a conclusion that is not supported by the material before it. In my view the material before the Tribunal in this case was insufficient to require it to consider whether the applicant was a member of a particular social group other than the one he formulated.
If, contrary to my view, the Tribunal did err in law by failing to consider whether there was some other particular social group in China into which the applicant would fall, and if such an error were to amount to jurisdictional error within the meaning of the principles explained in MIMA v Yusef [2001] HCA 30 then in accordance with the majority view in NAAV the decision would nonetheless be validated by s.474. (See Black CJ at [30] von Doussa J at [636] – [639] and Beaumont J at [277]). As was said by Black CJ in NAAV at [30]:
I agree that the enactment of section 474(1) has the consequence that an error of law on the part of the Minister or delegate in reaching the satisfaction that operates as a pre-condition to power to grant and cancel visas under the Act does not result in every case in the decision being invalid. I accept that section 474(1) may be taken to provide the “contrary intention”, which gives the administrative decision-maker authority to make a decision otherwise than in accordance with law, referred to in Craig v South Australia (1995) 184 CLR 163 at 170. For this reason, I take 474(10) to express the Parliament’s intention that the Minister’s satisfaction is to be taken to exist even if the Minister (or the delegate) has identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material.
Also see to the same effect von Doussa J at [636]–[639] and Beaumont J at [277]. In the light of these views of the majority in NAAV it is now clear that a decision which involves a jurisdictional error in the Craig sense is now validated by s.474(1).
Further the majority in NAAV rejected the approach taken by Tamberlin J in SBBK v MIMA [2002] FCA 265 that the need to address the question of whether the applicant in that case was a member of a particular social group comprised of ‘women in Iran’ or ‘divorced women in Iran’ was ‘an essential pre-condition’ to the exercise of its power. In that case Tamberlin J had taken the view that consideration of the matters set out in section 65(1)(a)(i)-(iv) was an essential precondition to the performance by the Minister of the duty under section 65 and that a failure to consider such matters was not protected from review by virtue of the privative clause. However this approach was disapproved by von Doussa J in NAAV. Beaumont J agreed entirely with the reasons of von Doussa J who said the following about SBBK at [639]:
I share the difficulty expressed by Allsop J in NAAG of 2002 at [59]-[60] about Tamberlin Js conclusion that an error of law in failing to identify the right question to be addressed in the applicant’s claim constitutes a failure to comply with a condition that is essential to the exercise of jurisdiction of the RRT. In my opinion the jurisdiction of the RRT was attracted by a valid application to the RRT made under section 414 to review an RRT reviewable decision. Once that jurisdiction was enlivened, the manner of exercise of the authority and powers of the RRT came within the expanded area of authority and powers brought about by section 474(1) that the consequence that the decision of the RRT was lawfully made. This consequence arises even if in the absence of section 474(1) the decision would have been infected with the jurisdictional error of the Craig type because the wrong question had been asked.
The analysis of Sackville J in Zahid at [80] in relation to a decision of the Migration Review Tribunal is equally applicable to a decision of the Refugee Review Tribunal:
It seems to be clear, on von Doussa J's reasoning, section 474(1) of the Migration Act protects a decision of the MRT against invalidity where the decision maker has failed to identify the right question to be addressed in dealing with the applicant's claim... There is nothing in von Doussa J's reasoning to suggest… that a distinction should be drawn between a failure to advert to the correct question, on the one hand, and a failure to ask the correct question because of an error of law, on the other. On the contrary, von Doussa J's reasoning proceeds on the basis that there are few jurisdictional factors that must be satisfied before s474(1) takes effect (assuming the Hickman provisos are satisfied). It would not be consistent with the paramountcy that von Doussa J attributes to s474(1) to hold that the MRT's failure to address the correct question in this case deprived the decision of the "validating effect" of s474(1).
I also respectfully agree with Sackville J that the reasoning of Black CJ in NAAV does not leave it open to conclude that s.474(1) does not "validate" a decision where the Tribunal has failed to advert to the correct question or to ask the correct question. As he said at [82]:
In my view, Black CJ's judgment cannot be read this way. It is true that his Honour reached a different conclusion in Turcan and Wang from that reached by Beaumont and von Doussa JJ. But the difference does not turn on any different view as to whether s474(1) of the Migration Act protects a decision maker from a failure to ask the correct question. In Turcan, Black CJ held that the delegate had erred on a particular legal question that his Honour regarded as "structural", in the sense that the question was central to the existence of the power to cancel a visa. In Wang, Black CJ held that, as a matter of construction, s129 of the Migration Act imposed a fundamental requirement that had to be satisfied before the Minister or his delegate could revoke a visa cancellation decision. Von Doussa J expressly said that if he had interpreted s129 as imposing a jurisdictional factor, he would have reached the same conclusion as Black CJ.
Further, as quoted at paragraph [38] above, Black CJ at [30] specifically stated that a decision would not be invalid by reason of a failure to ask the correct question. In the subsequent decision of the Full Court of the Federal Court, NABM v MIMIA [2002] FCAFC 294 Sackville, Hely and Stone JJ stated at [25]:
The Tribunal’s failure to address the correct question does not constitute an infringement of an inviolable condition jurisdictional factor or structural element found in the Migration Act. In this respect we agree with the analysis of Sackville J in Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1108
Accordingly, and again this is expressed clearly and succinctly by Sackville J in Zahid (at [84]–[85]), there is a clear majority view in NAAV that s.474(1) protects a decision from invalidity where the alleged invalidity flows from a failure on the part of the decision-maker to ask the correct question (notwithstanding that the failure would otherwise have constituted jurisdictional error).
Finally the applicant argued that the Tribunal’s decision was not a bona fide attempt to exercise power and was not in compliance with the Hickman principles and hence was not validated by the privative clause in s.474. The applicant did not suggest that the Tribunal was dishonest, malicious, biased or activated by improper purpose but rather that as there had been no ‘attempt’ to answer questions that the Tribunal was bound to address there could be no “bona fide attempt”. It was said that the failure to address the question of a possible alternative particular social group to which the applicant belonged showed that there was no genuine or actual ‘attempt’ to address all of the right questions and hence not a bona fide attempt to exercise the power.
I do not find this argument persuasive. The question is whether the Tribunal has made a bona fide attempt to exercise its power – that is the power to review a decision to grant or refuse to grant a protection visa. (See sections 65, 414 and 415 of the Migration Act). There is no suggestion that the Tribunal failed to comply with any other particular legislative restraint on the conduct of its review.
The scope of ‘bona fide attempt’ in the context of the Hickman principles has been considered in numerous cases. It has been reiterated (by Allsop J in NAAG v MIMIA [2002] FCA 713 at [24], Mansfield J in SAAG v MIMIA [2002] FCA 547 at [347] and Finn J in Daihatsu Australia Pty Ltd v Commissioner of Taxation (2001) 184 ALR 576 at [34]) that it is ‘not appropriate’ to attempt a comprehensive exposition of what is meant by ‘bona fide attempt to exercise [a] power’.
However the cases suggest that this is a serious allegation and not once lightly to be made. Dixon J himself in R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 400 made it clear that the phrase involves an ‘honest’ attempt to deal with the subject matter conferred by the executive. It is well-established that bad faith in this context ‘implies a lack of an honest or genuine attempt to undertake the task and involves a personal criticism of the Tribunal or officer in question’. See Kiefel J (with whom Spender J agreed) in NADR v MIMIA [2002] FCAFC 293 at [31], Beaumont J in NAAV at [107] and Allsop J in NAAG of 2002 v MIMIA [2002] FCA 713 at 24.
While a failure to ask or answer the right question may be relevant in an enquiry as to whether the Hickman test has been satisfied, as was said by Allsop J in NAAG v MIMIA [2002] FCA 713 at [13] the question is whether there was a bona fide attempt to exercise the power ‘not whether it had some other defect which might be found a claim of jurisdictional error absent a privative clause such as s.474.
There is no suggestion that the Tribunal’s decision was capricious or arbitrary or that it involved personal fault on the part of the decision-maker. Finn J in Daihatsu suggested that there may be a lack of a bona fide attempt where there is an abuse of power or the knowing exercise of power for an improper purpose or where no attempt is made, knowingly, to act conformably with duty. There is no suggestion of abuse of power or improper purpose in this instance. Nor is this a case where there has been no attempt or no genuine attempt to undertake the task of review. As Allsop J said in NAAG at [24] ‘ bad faith is not just a matter of poor execution or poor decision-making involving error’. There has been no suggestion of a denial of natural justice or a disregard of the applicant’s legitimate expectations (cf Daihatsu at [38]). Whether such circumstances would take a decision outside the notion of ‘bona fide attempt’ is not something I need to determine in these proceedings.
The applicant relied on the decision of the Full Court in Commissioner of Taxation v Stokes (1996) 141 ALR 653 which was said by Mansfield J in SAAG at [34] to have 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. The ‘power’ of the Commissioner in that case was described by the Court as the power of assessment. The Commissioner had produced three alternative assessments for one year. None of these purported to fix a definitive liability and as a consequence the assessment process was found not to have been completed. As there was no assessment there was no valid notice of assessment attracting the protection of the privative clause in s.177 of the Income Tax Assessment Act 1936, so that what the Court had to say in relation to the Hickman doctrine was obiter. However that case involved a failure by the decision-maker to exercise the function of assessment as required by the legislation. In this case the Tribunal has exercised its power of review as required by ss.414 and 415. It cannot be said that it made no attempt to do so merely on the ground of failure to address all of the alleged ‘right questions’ in the process of its consideration of the applicable criteria for the visa. Nor is there anything to suggest that it was not acting in a ‘genuine’ manner as submitted. It addressed the question of whether the applicant was as refugee (and each of the elements of that concept) and gave reasons for its findings (NAGT v MIMA [2002] FCA 815 at 16 per Hely J). No personal criticism has been made of the Tribunal member in question. The Tribunal assessed the applicant’s claims. It considered the reason for fear of persecution suggested by the applicant (fear of persecution by reason of the applicant’s membership of the particular social group of those who challenge or point out corruption). I have indicated that it has not been established that on the evidence before it the Tribunal ought to have considered some other, unidentified, social group. Even if it should have, such a failure would not amount to no attempt or genuine attempt to exercise the power of review. Indeed the Tribunal reasons show that it also considered the possibility of persecution for reason of the applicant’s actual or imputed political opinion arising from having acted against the Chinese Government by challenging or acting against a state-owned enterprise despite the fact that the applicant’s adviser had submitted that the applicant would not be targeted for reason of his political opinion. It has not been established that the Tribunal made no attempt or no genuine attempt to exercise its power of review under the Migration Act.
In these circumstances and given that there is nothing otherwise to suggest that the decision of the Tribunal involved a lack of bona fides, did not relate to the subject matter of the legislation, that it was not reasonably capable of reference to the power given by the decision maker, that there is a breach of any inviolable limitation or structural element in the operation of the Migration Act, it follows that the applicants’ claim for relief pursuant to s.39B(1) of the Judiciary Act must be dismissed.
I therefore dismiss the application and order that the applicants pay the respondent’s costs.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Barnes FM

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