SCAR v Minister for Immigration and Multicultural and Indigenous Affairs

The Federal Court was presented with a case involving the Secretary to the Department of Immigration and Multicultural and Indigenous Affairs (SCAR) and the Minister for Immigration and Multicultural and Indigenous Affairs, with the underlying dispute centering on the interpretation and application of privative clauses in the Migration Act 1958 (Cth). Specifically, the case required the court to determine the extent of its power to review decisions made under privative clauses as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). The Full Court's decision in the case of NAAV v Minister for Immigration and Multicultural and Indigenous Affairs provided the framework for the court's analysis, establishing a very limited scope for judicial review of such decisions.

The legal issues at hand involved interpreting Section 474 of the Act, which explicitly restricts the power of courts to review certain administrative decisions made under the Act, including those by the Refugee Review Tribunal. The court had to consider the effect of the 2001 Amendments, which introduced these privative clauses, and their applicability to decisions made both before and after the amendments came into force on 2 October 2001. The primary focus was on whether the court could review a decision made by the Refugee Review Tribunal after the amendments, which contained a privative clause barring judicial review.

In its reasoning, the court acknowledged the binding nature of the Full Court's decision in NAAV, which held that the privative clauses significantly curtailed the court's jurisdiction to review such decisions. The court concluded that, as per the current legal framework, its power to review privative clause decisions was indeed very limited. Consequently, the court was unable to review the specific decision of the Refugee Review Tribunal in question, as it was protected by the privative clause. The court allowed the application for judicial review on the basis that the decision was final and conclusive, as mandated by Section 474 of the Act.

The final orders of the court were that the application for judicial review be allowed, with the caveat that the decision of the Refugee Review Tribunal could not be reviewed. Additionally, the respondent was ordered to pay the applicant’s costs, which were to be taxed in the absence of an agreement on the amount.