NAIQ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1075

FEDERAL COURT OF AUSTRALIA

NAIQ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1075

NAIQ OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 454 OF 2002

BRANSON J
3 SEPTEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 454 OF 2002

BETWEEN:	NAIQ OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	23 AUGUST 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 454 OF 2002

BETWEEN:	NAIQ OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	3 SEPTEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 23 August 2002 I ordered that the application in this matter be dismissed with costs.  I indicated that my reasons for so ordering would be published at a later date.  These are my reasons for the orders made on that day.

2. By an application filed on 20 May 2002 the applicant sought, in effect, judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) which was handed down on 24 April 2002.  The Tribunal affirmed a decision of a delegate of the respondent not to grant the applicant a protection visa.

3. At a directions hearing held on 24 July 2002 the applicant, who has considerable competence in the English language, was nonetheless assisted by a Bengali interpreter.  On that day the application was listed for hearing on 23 August 2002.  In addition, a timetable was set for the filing and service of any amended application and evidence proposed to be relied upon and of written submissions.

4. No amended application or evidence was filed by the applicant but written submissions signed by him, which purported to expand the grounds upon which the applications were made, were received by the Court on 19 August 2002.

5. At hearing the applicant again had the assistance of an interpreter.  Shortly after the hearing commenced the applicant indicated that he wished to have the hearing adjourned for about eight weeks.  He asserted that he had a cousin in the United States of America who until recently had been unemployed.  Now that the cousin was employed he would, the applicant claimed, send money to the applicant to enable him to retain a barrister or solicitor to act for him.  No evidence was presented to the Court in support of the application for an adjournment.

6. The respondent opposed the adjournment of the hearing.  Mr Bromwich, counsel for the respondent, relied on the following three factors:

   (a)the delay in the making of the application;

   (b)the fact that the applicant had received legal advice pursuant to the pilot legal advice scheme and had further been advised by letter dated 1 July 2002 from the respondent’s solicitor of the details of organisations, including the Legal Aid Commission, from which legal assistance could be obtained; and

   (c)the apparent lack of merit of the substantive application.

7. The applicant acknowledged that he had received the letter dated 1 July 2002 and indicated that he had been to the Legal Aid Commission.  He also acknowledged that he had taken part in the pilot legal advice scheme.  However, he indicated that he believed that a barrister or solicitor who he was able to pay would provide him with better legal advice than that which he had received to date.  He indicated that he had taken no steps to find a barrister or solicitor who would be willing to assist him when funds became available.

8. I declined to grant the adjournment sought by the applicant.  I did so principally because I was satisfied that the applicant had received legal advice with respect to his application through the pilot legal advice scheme.  Additionally, I was not confident that the adjournment sought would result in legal representation for the applicant on a resumed hearing.

9. In support of his application, the applicant drew attention to the assertion in the opening paragraph of the Tribunal’s written reasons for decision that “his student’s visa was cancelled on grounds that he had breached the work limits attached to the visa”.  The applicant argued, in effect, that this statement was wrong and that an error of this kind in the opening paragraph of the Tribunal’s reasons for decision meant that one could have no confidence in the integrity of the Tribunal’s fact finding processes.

10. There is no evidence before me touching on the cancellation of a visa held by the applicant.  However, I note that a solicitor instructed by the applicant wrote to “Onshore Protection”, Sydney on 4 April 2001.  The solicitor’s letter, amongst other things, asserts:

    “I am instructed that the applicant’s visa was cancelled on 27 March 2001 on the basis that he had apparently breached the work limitation condition attaching to his student visa.”

11. This letter may well be the source of the Tribunal’s belief in the accuracy of the assertion about which the applicant makes complaint. It was not unreasonable of the Tribunal to accept the accuracy of the information set out in the solicitor’s letter. In any event, even if the accuracy of the Tribunal’s recitation of the background to the application made to it were open to question, this would not constitute a ground upon which the Court could grant the applicant relief under s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”).

12. The decision of the Tribunal is a “privative clause decision” as defined by s 474 of the Migration Act 1958 (Cth) (“the Act”). Section 474 was introduced into the Act by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), one of eight acts passed in September 2001 which amended the Act. The amendments made to the Act at that time, amongst other things, repealed the former Part 8 of the Act and replaced it with a new Part 8.

13. Section 474(1) provides:

    “(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.”

14. Section 474(1) does not mean what it says. Properly understood and construed s 474(1) does not prevent an application to this Court under s 39B of the Judiciary Act (NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228). Section 39B relevantly provides:

    “… 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.”

15. However, the view of the majority of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (Black CJ, Beaumont and von Doussa JJ, Wilcox and French JJ dissenting) is that s 474(1) leaves little scope for judicial review.

16. All members of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs characterised s 474(1) as a “Hickman clause”, ie a clause in substantially the same terms as a provision in national security regulations considered by the High Court in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 (“Hickman’s case”) and other cases.  In Hickman’s case, Dixon J at 615 said of the relevant regulation:

    “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.”

17. The members of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs were also in broad agreement that, as a matter of construction, a provision which disclosed a clear legislative intent that the observance of a particular procedure was a precondition for the making of a valid decision might override the intention otherwise to be discerned from s 474(1).

18. The applicant’s oral submissions revealed that in reality he seeks merits review in this Court of the finding of the Tribunal that he is not a refugee. This Court has no jurisdiction under s 39B of the Judiciary Act to grant merits review of a decision of the Tribunal.

19. The allegation made by the application that the applicant was deprived of the chance to present his case fully to the Tribunal was not expanded upon by the applicant.  The allegation finds no support in the material that is before the Court.  That material reveals that the applicant had legal representation at the time of the Tribunal hearing and that his solicitor provided detailed submissions to the Tribunal both before and after the Tribunal hearing.  The final submission provided to the Tribunal by the applicant’s solicitor makes no complaint that the applicant had not been able to put his case fully to the Tribunal.

20. The written submissions of the applicant to this Court include complaints that the Tribunal ignored procedures that the Act required it to observe and that the Tribunal did not act in good faith. Neither of the complaints was expanded upon at the hearing and neither of them finds support in the material before the Court. No failure to comply with “inviolable limitation or restraints upon the jurisdiction or powers of the Tribunal” can be identified (see R v Coldham; Ex parte The Australian Workers’ Union (1983) 153 CLR 415).

21. The applicant’s written submissions also placed reliance on the decision of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30 (“Muin’s case”).  This decision provides no assistance to the applicant as, through his solicitor, he was given the very opportunity which the High Court found had been denied to the applicant in Muin’s case.

22. No ground has been identified which could provide support for a finding that the decision of the Tribunal does not reflect a bona fide attempt to exercise its powers, does not relate to the subject matter of the Act and is not reasonably capable of reference to the power given to the Tribunal by the Act.

23. For the above reasons the application was dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:            3 September 2002

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr R Bromwich
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	23 August 2002
Date of Judgment:	3 September 2002