FEDERAL COURT OF AUSTRALIA
SBAP v Refugee Review Tribunal [2002] FCA 590
MIGRATION – application under s 39B of Judiciary Act 1903 (Cth) for relief in respect of decision of Refugee Review Tribunal – privative clause decision – whether breach of rules of natural justice and other administrative law grounds available
WORDS AND PHRASES – “bad faith”, “good faith”
Migration Act 1958 (Cth) s 474
R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 615 applied
Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397 followed
NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 followed
Re Minister for Immigration & Multicultural Affairs; ex parte Miah (2001) 179 ALR 238 at [43], [90], [126], [181] and [183] mentioned
Kioa v West (1985) CLR 550 at 612 mentioned
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49] and [108] applied
Sun Zhan Qui v Minister for Immigration & Multicultural Affairs [1997] FCA 324 followed
NABC v Minister for Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 539 at [6] mentioned
Minister for Immigration & Multicultural & Indigenous Affairs v Kord [2002] FCA 334 followed
Ayan v Minister for Immigration & Multicultural Affairs [2002] FCA 470 at [8] followed
Horrocks v Lowe [1975] AC 135 at 149-153 mentionedSBAP v REFUGEE REVIEW TRIBUNAL & ANOR
S 235 OF 2001HEEREY J
10 MAY 2002
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
S 235 OF 2001
BETWEEN:
SBAP
APPLICANTAND:
REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENTMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENTJUDGE:
HEEREY J
DATE OF ORDER:
10 MAY 2002
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The applicant pay the second respondent’s costs including reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
S 235 OF 2001
BETWEEN:
SBAP
APPLICANTAND:
REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENTMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT
JUDGE:
HEEREY J
DATE:
10 MAY 2002
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 11 December 2001 the Refugee Review Tribunal (the Tribunal) affirmed a decision of a delegate of the Minister not to grant to the applicant and his wife and two daughters protection visas. The applicant seeks certiorari, prohibition and mandamus under s 39B of the Judiciary Act 1903 (Cth) in relation to that decision. It is accepted that the application is governed by the amendments made to the Migration Act 1958 (Cth) (the Act) by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (the 2001 amendments) and that the decision of the Tribunal is a privative clause decision within the meaning of s 474 of the Act.
The applicant is a 35 year old Iranian citizen. His religion is Sabian Mandaean (sometimes referred to as Sobbi). He and his family arrived in Australia on 4 May…
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- Case
- [2002] FCA 590
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the privative clause in section 474 of the Act precluded judicial review of the Tribunal's decision on the basis that it was not made in good faith or was not a bona fide exercise of jurisdiction. The applicant contended that the privative clause did not exclude such jurisdictional errors from judicial review. The court considered whether the privative clause meant that the decision must be a bona fide attempt to exercise the power conferred by the legislation, as outlined by Dixon J in R v Hickman; ex parte Fox and Clinton.
The court found that the privative clause in section 474 of the Act does indeed preclude judicial review of the Tribunal's decision on the basis that it was not made in good faith or was not a bona fide exercise of jurisdiction. The expression "on any account" in section 474(1)(c) meant exactly that—on any account. Therefore, the privative clause barred the judicial review sought by the applicant. The court dismissed the application and ordered the applicant to pay the second respondent's costs, including reserved costs.
Orders
Orders of the court
1. The application is dismissed.
2. The applicant pay the second respondent’s costs including reserved costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: HEEREY J
The third ground was that the decision “was not made in good faith or it was not a bona fide attempt to act in the course of the (Tribunal’s) authority”. Particulars given of this ground were: “(a)(The Tribunal) made the decision in breach of the rules of natural justice and failed to afford procedural fairness: see particulars to ground 1 above.(b)(The Tribunal) made the decision in excess of jurisdiction, alternatively without jurisdiction: see the particulars to ground 2 above.(c)(The Tribunal) made the decision by a process that did not constitute a bona fide exercise of the jurisdiction.”The operation of s 474 Section 474(1) of the Act in the form introduced by the 2001 amendments provides:“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.” The Minister accepts that this provision does not prevent judicial review based on the absence of one of the more essential elements of validity identified by Dixon J in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 615, namely that the decision of the decision-maker “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 (decision-maker)”. Looked at in the context of an allegation of jurisdictional error, the jurisdiction of the decision-maker is the jurisdiction to make a decision that meets those requirements. The Hickman principle can be seen as the solution of a dilemma. Parliament may wish, for reasons which seem good to it (such as the need for speedy large scale multiple decision-making and the existence of machinery for administrative review), that ordinary judicial review should not be available for certain decisions. But Parliament would presumably want those decisions made by the administrators to whom it has given power, and not by others. And Parliament would presumably want powers it conferred exercised honestly and for the purpose intended, even if mistakes of fact and law and procedural error might remain uncorrected. The Hickman principle reconciles these competing demands. As I said in Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397 at [40], I agree with the construction that has been put on this section by Gyles J in NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263. In my opinion, the expression “on any account” in s 474(1)(c) means on any account. It does not mean “on any account (except breach of the rules of natural justice)”. Still less does it mean “on any account (except breach of the rules of natural justice, failing to conduct an appropriate inquiry, making a decision so unreasonable that no reasonable decision-maker could make it, making a decision in breach of indispensable conditions or imperative duties, or identifying a wrong issue, asking itself a wrong question, ignoring relevant material or relying on irrelevant material by an erroneous understanding of what constitutes a ‘well-founded fear of persecution’)”