WAAP v Minister for Immigration and Multicultural Affairs

[2002] FCA 131

FEDERAL COURT OF AUSTRALIA

WAAP v Minister for Immigration & Multicultural Affairs [2002] FCA 131

Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) s 474(1), 474(2), 476
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

R v Proctor; Ex parte Murray (1949) 77 CLR 387 cited

Walton v Philip Ruddock, The Minister for Immigration and Multicultural Affairs [2001] FCA 1839 referred to

WAAP v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
W476 of 2001

RD NICHOLSON J
14 FEBRUARY 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W476 of 2001

BETWEEN:	WAAP APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	14 FEBRUARY 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W476 of 2001

BETWEEN:	WAAP APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	14 FEBRUARY 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") which was given on 2 October 2001. The application is brought in reliance upon s 476 of the Migration Act 1958 (Cth) ("the Act"). In that decision the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant.

2. The applicant arrived in Australia on 7 March 2001.  He lodged his application for a protection visa on 7 April 2001.  The delegate's decision of refusal was made on 25 July 2001

3. The applicant claimed to the Tribunal to be a citizen of Afghanistan.  He claimed also to be of Hazara ethnicity and to be of the Shi'ite Muslim religion.  He claimed a well-founded fear of persecution if returned to Afghanistan on the grounds of his ethnicity and his religion.

4. In its reasons the Tribunal identified the issue for determination as being whether Afghanistan was indeed the applicant's country of nationality or former habitual residence.  It found his description of his experiences in Afghanistan to be very general and when details were sought found him to be vague and evasive.  The Tribunal therefore concluded that the applicant had not been in Afghanistan as he claimed and was not a national or habitual resident of that country. 

5. Consequently it concluded he had not been forced to flee that country, nor to do so for the reasons he gave.  It found that linguistic evidence was consistent with that conclusion although not determinative.  Among the matters which the Tribunal considered were the applicant's knowledge of the condition in relation to snow, about radio broadcasts in the country.  In relation to his dialect and the linguistic issues the Tribunal obtained some expert opinion which was to the effect that the dialect language variant used by the applicant may, with considerable certainty, be said to originate from Pakistan Quetta.

6. In his application made on 5 October, the applicant supported it with his statement of the ground of review in the following terms:

   “I am ethnically Hazara and my religion is Shi'ite.  I am 18 years old and am a national (citizen) of Afghanistan.  I was born and grown up in Afghanistan and I spent all of my life in Afghanistan.  I am illiterate and uneducated person.  I know everything about my area, culture and traditions.  I know everything about my religion.  I was targeted by Taliban because of my ethnicity and religion.  My language is Hazaragi-Dari.  My father is shopkeeper.  My one brother had been killed by Taliban and my another brother went missing by Taliban.  I escape Afghanistan because of cruelty and tyranny of Taliban.”

7. Although the application was in a form appropriate to and placed expressed reliance on s 476 of the Act, that law was very significantly changed by an Act of the Australian Parliament taking effect on and from 2 October 2001. The amending Act was called the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). Importantly that Act, which applies to the applicant's application, seeks significantly to limit the jurisdiction of this Court to review a decision of the Tribunal. It does this in particular by s 474(2) which has the consequence that the decision of the Tribunal is what is described in the Act as a private clause decision. The effect of that subclause is to provide that the 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.” (s 474(1))

   Section 476 has been amended and it is sufficient to say that the decision of the Tribunal is not a primary decision within the meaning of that section.

8. However, the jurisdiction of this Court to deal with the applicant's application still remains under s 39B of the Judiciary Act 1903 (Cth) and is not excluded by these amending provisions (see s 475A of the Act). The case for the respondent does not dispute that the application brought by the applicant, while not in a form appropriate to s 39B, should nevertheless be accepted by the Court; that is, the Court proceeds, treating the application as if it were one seeking to invoke that jurisdiction.

9. I have received submissions from the respondent on what must be required of an applicant to impugn a decision covered by a privative clause under the new law.  The submission is that an applicant must establish:

   “(a)that the constitutional authority of the Parliament to define the powers of the decision-maker has been exceeded;

   (b)alternatively, that the exercise of power in the decision challenged was unrelated to the subject matter of the legislation;

   (c)alternatively the decision made was, on its face, beyond power or was not an honest attempt to exercise the power conferred on the RRT under Part 7 of the Migration Act. Despite the presence and scope of the privative clause, compliance with the obligation in question must have been intended to be an essential precondition to the exercise of the power (see R v Proctor; Ex parte Murray at 401).”

   I have also had regard to the decision of Merkel J in Walton v Philip Ruddock, The Minister for Immigration and Multicultural Affairs [2001] FCA 1839. Having considered the reasoning of Merkel J, and taking into account my own reading of the amendments, I accept for the purposes of this particular case that the submission made by the respondent as to what an applicant must establish are appropriate for me to proceed on in this case.

10. The applicant is, of course, not a lawyer or a person possessed of any experience in that direction.  Furthermore, he is a person who says that he is illiterate and learns from oral experience.  He therefore could not be expected to bring to this Court sophisticated arguments or perhaps even identify facts that might fall within the remaining permitted areas of review open to this Court.  For that reason, I have let him state his case in his own terms.  They are that he does not regard the decision of the Tribunal as fair, and he submitted to me reasons why, if it were open to this Court to do so, it would reach a different view than the Tribunal did in relation to the issue of the snow, the radios and the dialect.  Unfortunately for the applicant, none of those matters fall within the narrow remaining permitted areas that this Court can exercise jurisdiction in relation to.

11. Turning to those permitted areas as previously outlined by me, it is clear the Tribunal has honestly attempted to deal with the subject matter confided to it under the Act and to act in pursuance of its powers. There is no evidence here in this case of the Tribunal manifesting any legally erroneous view of its task, nor here is there any circumstance identifying a requirement or limitation on the exercise of its powers which has not been complied with and which was essential to a valid decision notwithstanding s 474.

12. That has the consequence that, in accordance with the law I have previously outlined, the Parliament has decreed that in those circumstances the decision of the Tribunal must be final and conclusive.  That means there is no basis on which this Court can interfere with its findings, including those relating to the fundamental matters of the snow, the radios and the dialect.  The result therefore must be that the application has to be dismissed as a consequence of the effect of the new law to which I have referred; that is, in the particular circumstances of this case.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice
RD Nicholson.

Associate:

Dated:             21 February 2002

The applicant represented himself
Counsel for the Respondent:	Mr JD Allanson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 February 2002
Date of Judgment:	14 February 2002