NAIN v Minister for Immigration
[2002] FMCA 177
•5 September 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAIN v MINISTER FOR IMMIGRATION | [2002] FMCA 177 |
| MIGRATION – Review of decision of the Refugee Review Tribunal affirming a decision of a delegate not to grant a protection visa – whether the RRT committed a reviewable legal error in attaining the requisite degree of satisfaction for the purposes of s.65 of the Migration Act – privative clause – operation of the privative clause to immunise from review of a decision containing a legal error. PRACTICE AND PROCEDURE – Costs – whether costs should be awarded where, but for the privative clause, the application would have succeeded. |
Migration Act 1958 (Cth), ss.36, 65, 91R, 91S, 414, 420, 474
Migration Regulations
A v Minister for Immigration (1999) 53 ALF 545
Chan v Minister for Immigration (1989) 169 CLR 379
Craig v South Australia (1995) 184 CLR 163
Hui Zhong Xu v Minister for Immigration (1999) 95 FCR 425
Minister for Immigration v Prathapan (1998) 86 FCR 95
NAAV v Minister for Immigration [2002] FCAFC 228
R v Hickman; ex parte Fox v Clinton (1945) 70 CLR 598
Sowrimuthu v Minister for Immigration [2001] FCA 300
Sunarso v Minister for Immigration (2000) 99FCR 125
WADK v Minister for Immigration [2002] FMCA 175
Yan v Minister for Immigration (1995) 38 ALD 549
| Applicant: | NAIN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ562 of 2002 |
| Delivered on: | 5 September 2002 |
Delivered at: | Sydney |
| Hearing Date: | 9 August 2002 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr R Nair |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
There is no order for costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ562 of 2002
| NAIN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
On 24 April 2002 the Refugee Review Tribunal (“the RRT”) handed down a decision affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa. On 17 May 2002 the applicant applied to the Federal Court to review that decision. On 16 July 2002 his Honour Hill J of the Federal Court ordered that the proceedings be transferred to this Court. The applicant filed an amended application on 19 July 2002. That application seeks a declaration of invalidity, an injunction, mandamus, and costs. The grounds advanced in support of the application are that the decision of the RRT was vitiated by error of law amounting to jurisdictional error. The applicant asserts that the RRT identified the wrong issue and/or asked itself the wrong question and/or relied on irrelevant material and/or ignored relevant material.
The particulars are that, first, the RRT wrongly identified the issue of determining whether the applicant had a well founded fear of persecution as the issue of whether the authorities in Indonesia had declared their intention and/or their ability to stop such persecution and, secondly, that the RRT treated material detailing intentions and declarations by the Indonesian authorities as relevant without taking into account whether such intentions and declarations properly reflected the circumstances actually existing in Indonesia.
Background
The applicant, who is a citizen of Indonesia, arrived in Australia on 8 April 2001. On 27 April 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (“the Migration Act”). On 25 May 2001 a delegate of the Minister refused to grant a protection (class XA) visa and on 15 June 2001 the applicant applied for review of that decision.
The main claim advanced by the applicant in support of a protection visa was that he feared persecution by the Malay majority in Indonesia because of his ethnic Chinese race. The RRT accepted the applicant’s claims to be an ethnic Chinese Indonesian, that during riots in May 1998 his shop was burnt down, that he was threatened by a Muslim prayer teacher and that he had a genuine subjective fear of harm if returned to Indonesia, although the RRT noted that the applicant had not personally been harmed. However, the RRT was not satisfied that the applicant’s fear was objectively well founded, given independent country information concerning the availability of State protection in Indonesia. The RRT found that on the basis of this evidence the Indonesian government was and is able to provide effective protection that could be accessed by the applicant.
Applicant’s submissions
The applicant was represented at trial by Mr Radha Nair. Mr Nair made written as well as oral submissions. Mr Nair submitted that the RRT had made an error of law, being a jurisdictional error, in that the RRT identified the wrong issue and/or asked itself the wrong question and/or relied on irrelevant material and/or ignored relevant material. He also submitted that the decision of the RRT was unreasonable. Importantly, Mr Nair conceded that there was no issue of procedural unfairness in terms of the country information relied upon by the RRT in coming to its decision. Mr Nair did not submit that there was a failure to notify the applicant of country information to be relied upon.
Mr Nair submits that it is apparent from the decision and reasons of the RRT, in particular at pages 60-61, 63 and 65 of the court book, that the RRT erroneously found that commitments from the Indonesian authorities to protect ethnic minorities were sufficient to found a conclusion that the applicant did not have a well founded fear of persecution. Mr Nair submits that the reasoning of the RRT was erroneous because it had found as a matter of fact that the Indonesian authorities were unable, for at least some time during the violence in May 1998, to protect members of the ethnic Chinese community and that, accordingly, the RRT should have concluded that the established inability of the Indonesian authorities to provide protection meant that the fear of the applicant was well founded.
In essence, Mr Nair submits that the RRT applied the wrong test. He submits that it applied the test of considering whether there was any official persecution of members of the ethnic Chinese community in Indonesia rather than the test of whether the Indonesian government can offer effective protection to that community. Mr Nair submits that the erroneous approach adopted by the RRT amounts to a constructive failure by the RRT to perform its function under s.65 and s.414 of the Migration Act. Mr Nair further submits that the decision of the RRT was unreasonable because of country information before it which established that adequate protection in Indonesia was not available. He submits that lack of good faith can include unreasonableness, thus providing a ground of review notwithstanding the privative clause. He further submits that the privative clause will not protect a decision involving a constructive failure to exercise the jurisdiction conferred upon the decision maker.
Mr Reilly, for the Minister, also made written and oral submissions. He accepts that it is apparent from the RRT decision that the decision turns on the RRT’s assessment of country information, in particular, the availability of state protection in Indonesia. The RRT’s finding that the existence of state protection in Indonesia is sufficient to mean that the applicant’s fears are not objectively well founded is a factual matter for the RRT in his submission: A v Minister for Immigration (1999) 53 ALD 545. He submits that it is not necessary for the RRT to find that the state can guarantee protection: Minister for Immigration v Prathapan (1998) 86 FCR 95 at 104F.
Mr Reilly submits that the proposition that the RRT committed a jurisdictional error by confining itself to asking whether the Indonesian government had stated its intention to provide effective protection, rather than whether the protection is available, was not a fair reading of the RRT’s reasons. He submits that those reasons, at pages 65-66 of the court book, plainly address whether the level of state protection is such as to render the applicant’s admitted fear not well founded. He submits that similar arguments to those now put on behalf of the applicant were rejected in Sunarso v Minister for Immigration (2000) 99 FCR 125. He submits that the RRT’s conclusions that the applicant can access effective protection to the same level as that of any other Indonesian citizen adequately addresses the issue of state protection: Sowrimuthu v Minister for Immigration [2001] FCA 300.
Consideration and findings
Since this matter was heard by me the Full Federal Court has handed down its judgment in five cases under the title of NAAV v Minister for Immigration [2002] FCAFC 228. That decision is binding upon me. All the judges in that case found that the privative clause in s.474 of the Migration Act is valid and that the effect of the clause is to protect from judicial review decisions of the RRT or the Migration Review Tribunal which might otherwise be found to be invalid by reason of jurisdictional error. All of the judges also found that some decisions evidencing jurisdictional error would not be protected from review by the privative clause, but they differed as to the extent to which the privative clause would apply.
At paragraph 535 on page 78 of his judgment, his Honour French J set out seven grounds of review that, in his view, remain available notwithstanding the privative clause. These are:
(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 was not made by reference to the subject matter, scope and objects of the Migration Act.
(5)The decision was made in breach of an express statutory limit or condition upon a power which, as a matter of construction, notwithstanding s.474, must be observed for the effective exercise of the power.
(6)The decision is made in breach of a limit or condition on a power which, notwithstanding s.474, is implied from the statute or imposed by the common law and which must be observed for the effective exercise of the power.
(7)The decision was made in breach of the requirements of procedural fairness when the circumstances are such that, notwithstanding s.474, procedural fairness is a necessary condition for the valid making of the decision.
Grounds 1–4 find support from all the justices in NAAV and are clearly founded upon the so called Hickman principle: R v Hickman; ex parte Fox v Clinton (1945) 70 CLR 598. Ground 5 finds majority support in the judgments of their Honours Black CJ and Wilcox J in the matters of Turcan and Wang, although the extent of operation of the ground must be read in the light of the judgment of Black CJ in order to find a majority approved operating principle. Ground 6 appears not to have been specifically considered by the rest of the Court, although it should be treated with some caution, given the observation of Black CJ at paragraph 16. Ground 7 was rejected by the majority of the Court in NAAV.
It follows that the first five grounds set out by French J are open to a migration applicant (although the extent of the fifth ground needs to be considered in the light of the judgment of Black CJ) and it is arguable that ground 6 is also available. Ground 7 is not available on the basis of the majority judgment in NAAV.
In this case the applicant has asserted jurisdictional error in the terms identified by the High Court in Craig v South Australia (1995) 184 CLR 163. In NAAV, in relation to the appeal by Turcan, at paragraph 30, Black CJ considered the application of that case in the light of the privative clause. He said:
I take s.474(1) 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.
His Honour went on to say that where, however, the decision under review was subject to an inviolable pre condition of the achievement of a degree of satisfaction and where a legal error is committed at arriving at that state of satisfaction, the decision will not be protected by the privative clause.
Section 414 of the Migration Act does not require the RRT to achieve any particular level of satisfaction in reviewing a decision. However, in conducting a review of a decision to refuse to grant a visa the RRT stands in the shoes of the original decision maker and exercises decision making power pursuant to s.65. That section requires the decision maker to achieve satisfaction upon certain elements before making a decision to grant or refuse a visa. Consistently with the decision of the Full Federal Court in NAAV, in relation to the appeal by Turcan, the satisfaction requirement in s.65 is an inviolable requirement of the Migration Act that is a condition precedent to a valid exercise of the decision making power. It follows that if a legal error is made in assessing the criteria for the grant of a visa preparatory to determining whether the requisite degree of satisfaction has been met, the decision may be reviewable notwithstanding the privative clause. However, it is not any legal error which will provide a foundation for such review. As was made clear by Black CJ in NAAV, regarding Turcan, the general jurisdictional questions identified in Craig are not sufficient. What is necessary is the identification of a legal error of the kind identified in Turcan. This may be, for example, the application of a part of the Migration Act or Regulations which does not apply, or no longer applies, or a failure to apply a part of the legislative regime which must apply. For example, the RRT must apply the statutory description of “persecution” set out in s.91R of the Migration Act. Section 91R and s.91S qualify some aspects of Article 1A of the Refugees Convention which defines a refugee. Section 36(2) of the Migration Act and the Migration Regulations require a decision maker to assess protection visa applications by reference to the Refugees Convention and Protocol, as clarified by ss.91R and 91S. Potentially, the misapplication of these provisions may be reviewable, notwithstanding the privative clause.
In the present case the only issue is whether the RRT erred in determining whether the applicant did not have a well founded fear of persecution by reference to the assurances given by the Indonesian government. The RRT noted, correctly, that to be well founded the fear must relate to a threat of persecution which must have an official quality, in the sense that it is official, or officially tolerated, or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
On page 59 of the court book the RRT noted a difference in perception between the local population in certain parts of Indonesia and high ranked security officers as to the effectiveness of protection that was available. On page 63, the RRT took into account country information from the Australian Embassy in Indonesia that the security authorities had proved unable to provide protection of property and personal safety in a number of instances, including the numerous cases of rape and sexual abuse that had occurred in riots in mid 1998. The country information noted that in some districts, notably the mainly ethnic Chinese commercial area of Glodok in North Jakarta, there was a virtual breakdown of law and order in riots at that time.
At page 65 of the court book the RRT noted and accepted information from the Department of Foreign Affairs and Trade that the disturbances and violence of the kind seen in 1998 may continue in the future. The presiding member said:
In this context, the personal safety of members of the Chinese community and their property may be placed at risk and if the mobs are sufficiently large, the authorities may not be able to bring them under control until an adequate security presence can be established.
Nevertheless, the RRT accepted public statements by former Presidents Habibie and Wahid and current President Sukarnoputri as well as a security assurance given in 1998 by General Wiranto as establishing not only that the Indonesian government has not encouraged or condoned the ethnic or religious violence experienced but also that it has not failed to protect members of the Indonesian Chinese community in incidents such as the riots in May 1998, nor failed to protect members of the Indonesian Chinese community in incidents generally, nor that they would so fail in the foreseeable future. The presiding member said:
The riots are not sanctioned by the Indonesian authorities and the authorities have taken steps to protect their citizens. According to the independent evidence set out in this decision the authorities have increased its protection to the Chinese ethnic community. (court book, page 65)
The presiding member went on to find (court book, page 65) that the protection which will be available to the applicant if he returns to Indonesia now or in the foreseeable future will be the same as that available to any other Indonesian citizen at risk of harm should there be a recurrence of the rioting in Indonesia. The presiding member said:
The Tribunal also finds that the evidence demonstrates that the government of Indonesia was and is willing and able to provide effective protection to the applicant as a member of the ethnic Chinese community. The Tribunal finds that the applicant could access effective protection from the Indonesian authorities if he were threatened with harm by an individual in Indonesia in the future.
With respect to the presiding member, the assessment of the capacity of the Indonesian government to provide effective protection to the applicant should he return to Indonesia does not appear to me to be well reasoned. There was clearly material before the presiding member to establish that the Indonesian government had been unable to provide effective protection to elements of the Chinese community in 1998 and that there was a risk that that lack of capacity could manifest itself again in the future. The areas of concern were restricted geographically but, importantly, those areas including the area where the applicant lived. In fact, the authorities had failed to protect the applicant in May 1998 when his shop was burnt down. In my view, the assurances given by high level political and military figures in Indonesia do not themselves provide an assurance of adequate protection. The history of recent events in Indonesia shows that there is a gap between the intentions of government and the security services and the ability of government and the security services to carry out those intentions.
In my view, the decision and reasons of the RRT establishes an error of law of the kind identified in Craig. Although the RRT identified the correct test to apply, it misunderstood the test. The RRT misconstrued assurances of security as an ability to provide state protection. The assurances are subjective but the test of capacity to provide protection is an objective one. I distinguish this case from A v Minister for Immigration, Prathapan and Sowrimuthu relied upon by Mr Reilly, on the basis of the specific information before the RRT pointing objectively to the inability of the Indonesian authorities to protect the applicant. In my view, but for the privative clause, the misapplication of the test of the availability of state protection would be an error of jurisdiction vitiating the decision of the RRT. Nevertheless, it is clear from the majority judgments of the Full Federal Court in NAAV that such an error of law will not support judicial review of a migration decision in the face of the privative clause. Some more fundamental error of law based upon a provision of the Migration Act needs to be established. No such error has been identified by the applicant in these proceedings. In particular, the RRT appears to have applied the necessary elements of the legislative regime essential for it arriving at the requisite state of satisfaction required by s.65 of the Migration Act. In my view, the RRT reached an erroneous conclusion but that is not sufficient.
Neither am I satisfied that the decision of the RRT is so unreasonable that no reasonable decision maker could have made it. The test for reaching such conclusion is a high one: Chan v Minister for Immigration (1989) 169 CLR 379; Yan v Minister for Immigration (1995) 38 ALD 549; Hui Zhong Xu v Minister for Immigration (1999) 95 FCR 425. In substance, an applicant must establish that the decision maker acted perversely or absurdly. The decision must be insupportable on any reasonable basis. In my view, it is open to an applicant to advance a case of Wednesbury unreasonableness in the context of s.420(2)(b) of the Migration Act. In my view, the adherence to the requirements of that provision is an inviolable requirement of the Migration Act and that a breach of it can be established by proving a claim of Wednesbury unreasonableness. Mr Reilly has provided further written submissions on the question of the operation of s.420(2)(b). He submits that s.420 is merely an exhortatory provision which does not give rise to any enforceable rights in an applicant. In any event, he submits that s.474 protects non compliance with s.420 from review. I do not accept that submission. In my view, s.420(2)(b) is far more than a motherhood statement and Parliament did not intend that a breach of it should be protected from review by s.474. I see nothing in the judgments in NAAV to deter me from that view. I have elaborated on this principle in WADK v Minister for Immigration [2002] FMCA 175 and I do not need to repeat those observations here. Suffice to say that although I am satisfied that the conclusion reached by the RRT on the question of the capacity of the Indonesian authorities to provide effective state protection to the applicant was erroneous, it was not a finding that was so unreasonable that no reasonable decision maker could have made it.
I will therefore dismiss the application.
I will make no order as to costs. The application for review was made at a time when the operation of the privative clause in the Migration Act was uncertain and the grounds of review advanced by the applicant were reasonably open to the applicant at the time they were made. The situation has, of course, now become more clear following the judgment of the Full Federal Court in NAAV v Minister for Immigration but that judgment was handed down after the trial of this matter. I have found an error of law going to jurisdiction in the decision and reasons of the RRT but not one of sufficient gravity to support the granting of prerogative relief, in the face of the privative clause. In the circumstances, I find that no order for costs should be made.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 5 September 2002
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