SFTB v Minister for Immigration - [2002] FMCA 222

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SFTB v MINISTER FOR IMMIGRATION

[2002] FMCA 222

MIGRATION – Application for review of decision of the Refugee Review Tribunal – Applicant claiming well founded fear of persecution – durability of change in Afghanistan – allegation of jurisdictional error – no error found.

Migration Act 1958, ss.36(2), 65(1)
Judiciary Act 1903 (Commonwealth), s.39B

R V Hickman; Ex Parte Fox and Clinton (1945) 70 CLR 598
Chan v Minister for Immigration and Ethnic Affairs [1990] 169 CLR 379
MIMA v Haji Ibrahim (2000) 204 CLR 1
Craig v South Australia (1995) 184 CLR 163
MIMA v Yusef (2001) 180 ALR 1
NAAV v MIMIA [2002] FCAFC 228
NAIN v MIMIA [2002] FMCA 177

Applicant:

SFTB

Respondent:

Minister for Immigration and Multicultural and Indigenous Affairs

File No:

AZ161 of 2002

Delivered on:

11^th October 2002

Delivered at:

DARWIN

Hearing Date:

23^rd August 2002

Judgment of:

Brown FM

REPRESENTATION

Counsel for the Applicant:

Mr Ower

Solicitors for the Applicant:

Regugee Advocacy Service of South Australia Inc

Counsel for the Respondent:

Mr Tredrea

Solicitors for the Respondent:

Sparke Helmore Solicitors

ORDERS

The application is dismissed.
The applicant pay the respondent’s costs in the amount of $3,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

AZ161 of 2002

SFTB

Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

The applicant in these proceedings is not to be identified pursuant to the provisions of section 91X of the Migration Act 1958. He is a 15 year old boy, who was found by the Refugee Review Tribunal to be an Hazara and Shi’a muslim from the Ghazni Province of Afghanistan. Accordingly, he is a citizen of Afghanistan.
He arrived in Australia in August 2001 without a passport or any other documentary evidence in respect of his country of nationality. On the 20^th of September 2001, he lodged an application for a protection (class XA) visa under the Migration Act 1958 (“the Act”) with the Department of Immigration and Multicultural and Indigenous Affairs. On the 11^th of January 2002, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) refused to grant the applicant such a protection visa.
As a result, the applicant sought a review of this decision in the Refugee Review Tribunal (“the RRT”) pursuant to section 411(1) of the Act. On the 13^th of May 2002 the RRT affirmed the decision of the Minister’s delegate not to grant a protection visa to the applicant.
On the 29^th of May, 2002 the applicant filed an application for review of the Tribunal’s decision with the Federal Court of Australia, South Australia District Registry. By order of von Doussa J. made on 5 July 2002, these proceedings were transferred to the Federal Magistrate’s Court. The hearing took place before me in Adelaide on the 23^rd of August, 2002. Both the applicant and the respondent were represented by counsel.
In this application, the applicant claims the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] FMCA 222
Decision Date: 11th October 2002

CaseChat Overview and Summary

In the case of SFTB v Minister for Immigration, the applicant, SFTB, sought to challenge a decision of the Refugee Review Tribunal (RRT) regarding their refugee status. The applicant argued that the RRT had made an error in its decision which should invalidate the decision under section 39B of the Judiciary Act 1903. The Federal Court of Australia was tasked with determining whether the RRT's approach to the decision rendered it invalid. The court's jurisdiction in this matter is governed by section 474 of the Migration Act 1958, which includes a privative clause that restricts the court's ability to review decisions of the RRT. The High Court in R v Hickman; Ex Parte Fox and Clinton (1945) 70 CLR 598 outlined that a court may review a decision subject to a privative clause if there is a breach of one of the three conditions set out by Dixon J.: the decision maker must have made a bona fide attempt to exercise their power, the decision must relate to the subject matter of the legislation, and the decision must be reasonably capable of reference to the power given to the decision maker.

In this case, SFTB accepted that the privative clause applied to the RRT's decision but contended that the RRT had made a jurisdictional error by failing to consider an essential requirement of the Migration Act, specifically the obligations under the Refugees Convention as outlined in section 36(2). SFTB argued that the RRT had not properly assessed whether changes in Afghanistan since their departure meant they could no longer have a "well-founded" fear of persecution. This failure, according to SFTB, constituted a breach of an "inviolable limitation" on the RRT's jurisdiction. The Court, however, found that the RRT had not erred in its consideration of the applicant’s circumstances and obligations under the Refugees Convention. The Court determined that the RRT's decision was within its jurisdiction and did not breach any of the conditions outlined by Dixon J. in Hickman.

As a result, the application was dismissed. The Court also ordered that the applicant pay the respondent’s costs in the amount of $3,750.00. The Court's decision upheld the restrictive nature of the privative clause in section 474 and confirmed that the RRT's decision, while subject to judicial review, could only be overturned if there was a clear breach of the jurisdictional conditions set out by the High Court.

Orders

Orders of the court

The application is dismissed.

The applicant pay the respondent’s costs in the amount of $3,750.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The errors identified by the applicant in the decision of the RRT must be such as to attract relief under section 39B of the Judiciary Act 1903 (Commonwealth). The inquiry required of the Court is whether the approach adopted by the Tribunal was such as to render its decision invalid. The jurisdiction that the Court exercises is subject to section 474 of the Migration Act 1958 (Commonwealth), which is found in Part 8 of the Act which deals with judicial review. The current Part 8 of the Migration Act is enacted as a result of the provisions of the Migration Legislation Amendment (Judicial Review) Act 2001. It severely restricts the capacity of the Court to review decisions of the RRT. Section 474 is the section which places into the Act a privative clause in the following form:474Decisions under Act are final(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. Part 8 applies in respect of judicial review of any decision made under the Migration Act 1958 (Commonwealth) where the application for review was not lodged before the commencement of Schedule 1 to the Migration Legislation Amendment (Judicial Review) Act. The application before me was lodged after the commencement of the Schedule and is therefore subject to the new regime and in particular the privative clause set out above. Such a clause was interpreted by the High Court in R V Hickman; Ex Parte Fox and Clinton (1945) 70 CLR 598. In Hickman, Dixon J. at 616 set out the grounds on which a Court such as this one may nonetheless review a decision of an administrative nature that is subject to such a privative clause. In his judgment to that case, Dixon J. stated the three pre-conditions to the valid exercise of decision making powers to which such a clause applies as follows:b)The decision maker is required to have made “a bona fide attempt to exercise its power”;c)The decision “relates to the subject matter of the legislation”;d)The decision “is reasonably capable of reference to the power given to “ the decision maker.Thus, a decision makers decision is protected by a privative clause for only so long as the decision maker does not exceed his or her jurisdiction in breach of one of the Hickman conditions. The applicant accepted that this was a decision to which the privative clause created by section 474(1) of the Act applied. However, it was asserted that the RRT had fallen into a jurisdictional error by failing to take into account an essential requirement of the Migration Act in reaching its decision and as such the decision was rendered void. In particular, it was asserted, that the RRT had failed to properly consider the requirements set out in section 36(2) of the Act in respect of Australia’s obligations under the Refugees Convention. It was argued that the RRT had failed to properly consider whether the change of circumstances in Afghanistan, since the departure of the applicant, was such that the applicant could no longer properly have a “well founded” fear of persecution in that country. In essence, it was argued that the RRT had misconceived the criterion specified under section 36(2) in respect of this matter and as such had breached what was categorised as an “inviolable limitation” on its jurisdiction.

Ratio Decidendi

Legal Principle Established

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