NALA v Minister for Immigration
[2002] FMCA 226
•16 October 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NALA & ORS v MINISTER FOR IMMIGRATION | [2002] FMCA 226 |
| MIGRATION – Citizenship – review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa – operation of the privative clause in the Migration Act 1958 (Cth) – whether any reviewable error disclosed by the decision of the RRT – applicants from Nepal – consideration of the phrase ‘bona fide’. |
Federal Court of Australia Act 1976 (Cth), s.32AB
Judiciary Act 1903 (Cth), ss.39B; 44
Migration Act 1958 (Cth), ss.91X; 474; 483A; 484
Udeni Welivita v Minister for Immigration & Ethnic Affairs [1996] 989 FCA 1 (18 November 1996)
V Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598
NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 (5 June 2002)
| First Applicant: | NALA |
| Second Applicant: | NALB |
| Third Applicant: | NALC |
| Fourth Applicant: | NALD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 640 of 2002 |
| Delivered on: | 16 October 2002 |
| Delivered at: | Sydney |
| Hearing Date: | 2 October 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Burwood |
| Solicitors for the Applicant: | Ward Maxwell |
| Counsel for the Respondent: | Mr Johnson |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed
The Applicant is to pay the Respondent’s costs of the application, assessed at 4267.50.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 640 of 2002
| NALA |
First Applicant
| NALB |
Second Applicant
| NALC |
Third Applicant
| NALD |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the applicants, who are identified only by the letters NALA, NALB, NALC and NALD, for review of a decision by the Refugee Review Tribunal (hereafter referred to as “the RRT”) about the refusal to grant protection visas to them. The applicants, who are members of the one family, are identified in this way rather than by the use of their name by reason of section 91X of the Migration Act 1958, the relevant parts of which state:
“(1) This section applies to a proceeding before the High Court, the Federal Court or the Federal Magistrates Court if the proceeding relates to a person in the person’s capacity as:
(a) a person who applied for a protection visa; or
(b) a person who applied for a protection-related bridging visa; or
(c) a person whose protection visa has been cancelled; or
(d) a person whose protection-related bridging visa has been cancelled.
The court must not publish (in electronic form or otherwise), in relation to the proceeding, the person’s name.”
Counsel for the applicants and for the respondent, have made written submissions in this matter. There are no issues of fact in this matter.
Background
The applicants are citizens of Nepal. They all arrived in Australia legally. The applicants NALA and NALB arrived first, on 4th September 1999. The applicants NALC and NALD, who are the children of the first two applicants, arrived in Australia on 31st May 2001.
On 1st October 1999 the Applicants NALA and NALB lodged applications for Protection visas. The Minister’s delegate refused their application on 17th December 1999. NALB relied on her status as the spouse of NALA. On 23rd November 1999 the Minister’s delegate refused their application. On 17th December 1999 the applicants applied for a review to the Refugee Review Tribunal (the “RRT”).
On 20th June 2001, the applicants NALC and NALD lodged applications for protection visas. On 14th September 2001 the Minister’s delegate refused their applications. The two younger applicants lodged their applications to the Refugee Review Tribunal for a review of the decision not to grant them protection visas.
The Refugee Review Tribunal held a joint hearing for all four applicants on 19th April 2002. On 21st May 2002, the RRT handed down its decision of 22nd April 2001 affirming the decision not to grant protection visas to the four applicants.
On 7th June 2002, the Applicants filed an application in the Federal Court for review of the RRT’s decision. The application was transferred to the Federal Magistrates Court, with the consent of the parties, on 22nd July 2002.
The applicants seek an injunction to restrain their removal from Australia, and order quashing the decision of the RRT of 22nd April 2002, and order to remit the matter to the RRT for reconsideration according to law.
Jurisdiction
The Federal Magistrates Court has been given the same jurisdiction as the Federal Court in relation to a matter arising under the Migration Act, by virtue of section 483A of the Act. Section 484 states:
“(1) The jurisdiction of the Federal Court and the Federal Magistrates Court in relation to privative clause decisions is exclusive of the jurisdiction of all other courts, other than the jurisdiction of the High Court under section 75 of the Constitution.”
Privative clause decisions are defined by s.474 of the Act:
“(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.
(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).”
Under the provisions of s.474 (2) of the Act, the decision by the RRT is a “privative clause decision”. As a result of the legislative change made by the Migration Legislation Amendment (Judicial Review) Act 2001, where a person makes an application to review a privative clause decision on or after 2nd October 2001, the Federal Court, and therefore the Federal Magistrates Court, only has jurisdiction in respect of the proceeding pursuant to ss.39B or 44 of the Judiciary Act 1903. Section 475A of the Act provides:
“Section 476 does not affect the jurisdiction of the Federal Court under section 39B or 44 of the Judiciary Act 1903 or section 39 of the Federal Magistrates Act 1999, or the jurisdiction of the Federal Magistrates Court under section 483A of this Act, section 44 of the Judiciary Act 1903 or section 32AB of the Federal Court of Australia Act 1976, in relation to:
(a) a privative clause decision that is a decision made on a review by a Tribunal under Part 5 or 7 or section 500; or
(b) any other decision in respect of which the court’s jurisdiction is not excluded by section 476”.
Section 476 of the Act provides that the Federal Court and the Federal Magistrates Court do not have any jurisdiction in relation to a primary decision. A primary decision is defined by subsection 476(6) as:
“a privative clause decision:
(a) that is reviewable, or has been reviewed, under Part 5 or Part 7 or section 500; or
(b) that would have been so reviewable if an application for such review had been made within a specified period.”
The Federal Magistrates Court has jurisdiction to grant prerogative relief pursuant to s.39B of the Judiciary Act 1903. That jurisdiction, similar to that conferred on the High Court by s.75(v) of the Constitution, permits the Court to grant prerogative relief by way of prohibition or mandamus, or by way of an injunction about a decision of an officer of the Commonwealth.
The grounds of the application
The applicant NALA, the husband and father of the other three applicants, says that he had been involved with the Communist Party of Nepal since his school days. On one occasion he had been arrested and beaten by the police. He told the RRT that he had joined a hard-line organisation called the United Peoples Front after the introduction of democracy in Nepal in 1990 and had, since 1995, been involved in clandestine activities including organising food and accommodation for underground leaders, collecting donations and arranging for medical treatment for party members who had been injured.
He further claimed that he had been detained and tortured by the police but was later released. The police had raided his house and he had gone into hiding. The police had come looking for him and threatened his wife, the second applicant, that he would be killed if he continued in his activities. He decided to leave Nepal, so he obtained a visa to enter Australia and left the country with his wife.
The passport of the applicant NALA expired after he left Nepal, but he was able to obtain a further passport from a Nepalese Embassy. The parties arranged for their children to travel to Australia in the company of some friends.
The RRT was not satisfied that the applicant NALA was an active member of the organisation which he claimed to be, or that he was involved in illegal activities in support of the Maoist insurgency. The RRT was also not satisfied that NALA was the subject of a warrant for his arrest or that he was at risk of arrest or persecution.
The RRT went on to consider the question “What if the Tribunal is wrong”.[i] The RRT proceeded on the alternative basis that NALA was a supporter or member of the CPN(M)[ii] who was “at risk of being questioned and/or arrested and/or charged in relation to suspected involvement in armed clashes between the Maoists and the police in relation to direct support for the Maoist fighters involved”.[iii] The RRT found that the fact that a person may face investigation or arrest on suspicion of involvement in an armed insurrection does not of itself necessarily amount to persecution for a Convention reason. As a result, the RRT was not satisfied that the arrest or possible mistreatment by the Nepalese authorities would be for a Convention reason. It is this finding, and the way that it was reached, that forms the basis of the applicants’ case.
The RRT noted that no different or separate Convention claims had been made by or on behalf of the other three applicants, other than a general and unspecified claim that the children feared harassment by the authorities. The applicant NALA raised a new claim at the hearing that the children had been threatened with death by the police, but the RRT did not accept the truth of that claim.
The RRT affirmed the decision not to grant protection visas to the applicants.
The applicants’ submissions
The Applicants made a written submission and their counsel, Mr Burwood, expanded on that submission before the Court. The submission was not directed towards the RRT’s primary finding, that the RRT was not satisfied that the Applicant NALA was an active member of the CPN or was involved in illegal activities in support of the Maoist insurgency, but towards the alternative finding, headed “what if the tribunal is wrong”.
The Applicants submit that the RRT failed to consider the criteria for determining refugee status in the 1951 Convention and failed to consider the application of s.91R of the Migration Act 1958. In his oral submission, Mr Burwood put that the RRT had failed to address properly the criteria set out by Lindgren J in Welivita v Minister for Immigration and Ethnic Affairs, FCA, NG958 of 1995, 18 November 1996 (unreported). By failing to address those criteria properly, the RRT, it is submitted, did not make an honest or genuine attempt to undertake the task and was thereby not acting in good faith in making the decision.
It follows that if it can be shown that the decision-maker did not act in good faith in making the decision, then the Court has power to review that decision. This power is described in the judgment of Dixon J in R v. Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616:
“It is of course, quite impossible for Parliament to give power to any judicial or other authority which goes beyond the subject matter of the legislative power conferred by the Constitution…It is equally impossible for the legislature to impose limits upon the quasi-judicial authority of a body which it sets up with the intention that any excess of that authority means invalidity, and yet, at the same time, to deprive this Court of authority to restrain the invalid action of the court or body by prohibition.”
The Court went to say that “the application of these principles means that any decision by a Local Reference Board which upon its face appears to be within power and is in fact a bona fide attempt to act in the course of its authority, shall not be regarded as invalid”.
The applicants must establish one of three things if they are to impugn a decision covered by a privative clause:
(a)that the constitutional authority of the Parliament to define the powers of the decision-maker has been exceeded;
(b)that the exercise of power was unrelated to the subject matter of the legislation; or
(c)that the decision that was made was, on its face, beyond power or was not a bona fide attempt to act in the course of the RRT’s authority.
The Court was referred to page 12 of the RRT decision, where the RRT quoted a brief passage from the decision in Welivita (supra):
“To the extent that a person may face investigation or questioning (or arrest) on suspicion of such involvement in the armed Maoist insurrection, this does not of itself necessarily amount to persecution for a Convention reason. This issue has also been helpfully discussed in Welivita v Minister for Immigration and Ethnic Affairs, FCA, Lindgren J, NG 958 of 1995, 18 November 1996 (unreported). In particular (at p.21):
Clearly, the mere fact that a person will, upon returning to his or her country of nationality, be prosecuted and penalised for a criminal offence does establish the existence of a wellfounded fear of being persecuted for reasons of political opinion…the mere fact that the criminal offence was ‘politically motivated’ makes no difference.”
The applicants complain that the RRT omitted to quote that part of the judgment that immediately followed:
“With respect, it seems to me that the following paragraphs from the United Nations Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Geneva, January 1992) are unexceptionable:
‘84. Where a person is subject to prosecution or punishment for a political offence, a distinction may have to be drawn according to whether the prosecution is for political opinion or for politically motivated acts. If the prosecution pertains to a punishable act committed out of political motives, and if the anticipated punishment is in conformity with the general law of the country, fear of such prosecution will not in itself make the applicant a refugee.
85. Whether a political offender can also be considered a refugee will depend on various other factors. Prosecution for an offence may, depending upon the circumstances, be a pretext for punishing the offender for his political opinions or the expression thereof. Again, there may be reason to believe that a political offender would be exposed to excessive or arbitrary punishment for the alleged offence. Such excessive or arbitrary punishment will amount to persecution.
86. In determining whether a political offender can be considered a refugee, regard should be had to the following elements: personality of the applicant, his political opinion, the motive behind the act, the nature of the act committed, the nature of the prosecution and its motives; finally, also, the nature of the law on which the prosecution is based. These elements may go to show that the person concerned has a fear of persecution and not merely a fear of prosecution and punishment – within the law – for an act committed by him.”
The submission is that, by not quoting that part of the judgment, the RRT failed to consider the criteria for determining refugee status and therefore did not make a bona fide attempt to act in the course of its authority.
The applicants referred the Court to the decision of Alsop J in NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 (5 June 2002). In paragraph 24 of the decision, the Court considered the phrase ‘bona fide’. In that case, as in the matter before this Court, there was no attempt made by the applicant to prove a lack of bona fides outside an examination of the Tribunal’s reasons. Alsop J, in examining the meaning of the phrase bona fide, referred to the decision of Dixon J in R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 400, inter alia, saying that “the phrase involves an ‘honest’ attempt to deal with the subject matter conferred to the executive. His Honour went on to say at [24]:
“Bad faith is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question. Finn J in Daihatsu Australia v Federal Commissioner of Taxation (2001) 184 ALR 576 at [36] referred, by way of exemplification, to the exercise of a power knowingly for an improper purpose or where no attempt is made, knowingly, to act conformably with a duty. Heerey J in SBAP v Refugee Review Tribunal [2002] FCA 590 at [47] said that the phrase ‘bona fide’ involved a serious question involving personal fault on the part of the decision-maker going beyond error of fact or law. It must be clearly identified and proved.”
Mr Burwood, for the applicants, described the RRT’s decision as not really a genuine attempt to undertake the task faced by the RRT, as witness the truncated quote from Lindgren J’s decision in Welivita. He went on to concede that there was no evidence to support the proposition either that the RRT was acting mala fide, or that there was actual bias. He submitted that what was being put was somewhat lower; the RRT must have been aware of the criteria but failed to consider them properly.
The respondent’s submission
Mr Johnson, counsel for the Respondent, in a document entitled “Respondent’s Further Outline of Submissions”, submitted that no case for relief under s.39B of the Judiciary Act had been made out. His submission was as follows:
(a)there is no error revealed in the RRT’s reasons, either in what the RRT said or what Lindgren J was quoted as saying; the passages from Welivita for which the RRT is criticised for not setting out “are consistent with what Lindgren J and the Tribunal both said”;
(b)the allegation that the RRT did not consider section 91R of the Migration Act cannot be made out, because the RRT specifically referred to the section in the decision; and
(c)(even) “if there was an error by the Tribunal in its understanding of the Convention reason requirement…the privative clause would nonetheless expand the validity of the Tribunal’s decision such that there would be no error sounding in relief.”
Conclusions
Alsop J, in NAAG (supra), rejected the submission that objective bad faith could be found without the need for personal fault on the part of the decision-maker. With respect, I find his Honour’s view persuasive. The very concept of bad faith must involve some personal fault, either by way of commission or omission.
Counsel for the applicants made much of the “truncated” quote from Lindgren J’s decision in Welivita, but I consider that bad faith would only be demonstrated if the quoted passage was either taken out of context or was unrepresentative of the reasoning of the decision. The quoted passage was preceded by a statement which, to my mind, summarises the passage from the judgment that was quoted:
“To the extent that a person may face investigation or questioning (or arrest) on suspicion of such involvement in the armed Maoist insurrection, this does not of itself [iv] necessarily amount to persecution for a Convention reason”.[v]
With respect, this is exactly the point that Lindgren J was making in Welivita – merely establishing that a person may be prosecuted or punished for a political offence is not enough, there must be something more. These extra factors would include such things as demonstrating that any prosecution would be politically motivated or would not otherwise be bona fide, or that any punishment would be arbitrary or excessive.
It is clear from the examples given by Alsop J in NAAG (supra), that a lack of bona fides involves actual bias, exercise of power for an improper purpose or a failure to act of such seriousness that the decision-maker would be open to criticism. It is equally clear from the judgment that there can be no concept of objective bad faith without some notion of personal fault.
With respect, what the applicants seem to be submitting is that the decision-maker acted in some way between those two concepts, so that there was some form of lack of good faith through a failure or an omission serious enough to justify criticism of the decision-maker. I am not satisfied that the case law allows such an intermediate concept to be found.
In any event, I am not satisfied that the RRT’s finding is inconsistent with the principles set out in Welivita. It appears that the RRT has considered those principles and applied them correctly.
I am also satisfied that the RRT did, in fact, consider the application of s.91R of the Migration Act. An adequate explanation of the effect of s.91R appears on pages 3 and 4 of the RRT decision.
The third part of the Respondent’s submission dealt with the proposition that, even if there was an error by the RRT in its understanding of the requirement of the Convention reason, the privative clause in s.474 would preclude any relief. In the light of my finding that the applicants have not shown any error by the RRT, it is unnecessary to for me to rule on that part of the submission.
I find that the applicants are not entitled to relief pursuant to s.39B of the Judiciary Act. The application must be dismissed.
In this jurisdiction, costs follow the event, and, as the applicant has been wholly unsuccessful in these proceedings, there should be an order for costs in favour of the respondent. I am satisfied that costs should be assessed on the basis of stage 2 of the Federal Magistrates Court scale of costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 4 October 2002
[i] RRT decision 22 April 2002 page 11
[ii] Communist Party of Nepal (Maoist)
[iii] RRT decision 22 April 2002 page 11
[iv] emphasis added
[v] RRT decision (supra) page 12
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