WAAZ v MIMIA - [2002] FMCA 77

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAAZ V MIMIA

[2002] FMCA 77

MIGRATION – appeal from a decision of the Refugee Review Tribunal – whether the Tribunal erred in finding applicant’s fear of persecution was not well founded

Migration Act 1958 (Cth)

Judiciary Act 1903 (Cth) s.39B

R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598
SAAD v Minister for Immigration & Multicultural Affairs [2002] FCA 206
SBAE v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 479
Turkan v Minister for Immigration & Multicultural Affairs [2002] FCA 397
Raza v Minister for Immigration & Multicultural Affairs [2002] FCA 350

Applicant:

WAAZ

Respondent:

THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

WZ 60 of 2002

Delivered on:

10 May 2002

Delivered at:

Sydney

Hearing Date:

29 April 2002

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Ms L Price

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application be dismissed.
The applicant pay the respondent’s costs pursuant to Part 21.10 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

WZ 60 of 2002

WAAZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

In this matter the applicant seeks a review of the decision of the Refugee Review Tribunal constituted by Roger Gibson made on 10 October 2001 affirming a decision not to grant a protection visa under class XA sub-class 785 or 866.
The applicant entered Australia as an unauthorised boat arrival and was not immigration cleared. He is therefore unable to meet the requirements for the grant of a permanent sub-class 866 (protection visa). He was assessed in accordance with the criteria set out in the Migration Regulations for the grant of a visa of sub-class 785 (temporary protection). The application states that the applicant is aggrieved by the Tribunal’s decision because
“I believe that my fear of persecution is well founded.”
The grounds of his application are set out as follows
“I am not satisfied with the decision of the Tribunal because first of all I was persecuted in these different countries as I said.
Therefore I can’t go back nor to Syria nor to Kuwait or to Sudan because my fear of persecution is well founded.”
The matter came before the Registrar on 2 November 2001. The Registrar made orders including the following
“2. The applicant to file and serve on or before 30 November 2001;
(a) an amended application giving particulars of any groundsof review; or
(a) a written statement setting out the reasons why he considers the decision of the Refugee Tribunal is wrong; and
(b) any affidavit upon which he intends to rely at the hearing of this matter.”
No such documents were filed by the date ordered or by the date of the hearing. The reason for this may have been that the applicant was unable to afford legal representation.
The applicant claims to be a…

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 77
Decision Date: 10 May 2002

CaseChat Overview and Summary

The case of WAAZ v MIMIA was heard by the Federal Magistrates Court and concerned a challenge to a decision made by the Minister for Immigration and Multicultural and Indigenous Affairs under the Migration Act. The applicant, WAAZ, sought to overturn the Minister's decision, which was deemed final and conclusive by a privative clause in the Act. This clause prevents any court from reviewing, appealing, or questioning the Minister's decision. The court's jurisdiction to hear such matters was established under s.483(A) of the Migration Act, and the judicial review process is governed by s.474 of the Act.

The legal issues at hand centred around the interpretation and application of the privative clause in s.474 of the Migration Act. The applicant argued that the decision made by the Minister was flawed and should be reviewed by the court. The court had to determine whether the privative clause precluded it from reviewing the decision and whether any errors made by the Minister could justify setting the decision aside. The court had to balance the applicant's right to challenge the decision with the legislative intent behind the privative clause.

The court, applying the principles established in previous cases, first assessed whether the privative clause applied to the decision in question. The court found that the clause did apply, and therefore, it did not proceed to review the merits of the Minister's decision. The court followed the approach in SAAD v Minister for Immigration and Multicultural Affairs and SBAE v Minister for Immigration and Multicultural and Indigenous Affairs, where the judges held that if no jurisdictional error was found, the court should not review the decision. However, the court acknowledged that other judges, such as Heery J in Turkan v Minister for Immigration and Multicultural Affairs, held a different view, advocating for the application of s.474 at the threshold.

The court dismissed the application and ordered the applicant to pay the respondent's costs pursuant to Part 21.10 of the Federal Magistrates Court Rules. This decision reinforces the principle that the privative clause in the Migration Act limits the court's jurisdiction to review decisions made by the Minister, unless a jurisdictional error is identified.

Orders

Orders of the court

The application be dismissed.

The applicant pay the respondent’s costs pursuant to Part 21.10 of the Federal Magistrates Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The jurisdiction of the Federal Magistrates Court in these matters is imposed by s.483(A) of the Migration Act. The jurisdiction which the court exercises is subject to s.474 of the Act which is found in Part 8 dealing with judicial review. Section 474 is the section which places into the Act the privative clause in the following form:474Decisions under Act are finali)A privative clause decision;b) is final and conclusive; andc) must not be challenged, appealed against, reviewed, quashed or called in question in any court; andd) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. This clause was interpreted by the High Court in R v Hickman; ex-parte Fox and Clinton (1945) 70 CLR 598 and the implications of such a clause to decisions under the Migration Act have been the subject of several decisions in the Federal Court. There have also been decisions in this court. Mansfield J in SAAD v Minister for Immigration and Multicultural Affairs [2002] FCA 206 and SBAE v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 479 dealt with two cases in which the application for review before the court did not identify any grounds upon which the application was brought. He considered those cases on the basis that he would look first to see whether or not there was any matters which would give rise to relief under s.39B of the Judiciary Act 1903 (Cth). He said in SBEA at [17]:“The assessment of the merits of the applicant’s claims is fundamentally the function of the Tribunal. The court is not empowered to revisit findings made by the Tribunal, and to substitute its view of appropriate findings for those made by the Tribunal. That is not to indicate that, in this instance I have found different views about matters of fact upon which the Tribunal has made findings. I have not done so. That is not the court’s function. It is to indicate that, without error of the kind which would enliven a court’s powers under s.39B of the Judiciary Act, the sort of matters to which the applicant has referred as noted above do not entitle the court simply to revisit the determination of the Tribunal or set it aside.” His Honour would only consider the effect of s.474 of the Migration Act if he found there was an error on the part of the Tribunal which would enliven the entitlement to an order under s.39B. When he was unable to find such an issue in SAAD his Honour said at [23]:“Consequently, in my view, it is not necessary to address the application of s.474 in the particular circumstances.” This approach is not universal. In Turkan v Minister for Immigration and Multicultural Affairs [2002] FCA 397 Heery J said at [46]:“In my view, the correct approach is to first consider whether s.474 applies. If it does, the court need not. Indeed it should not, go any further. The court should not assess the case as if 474 did not exist and then only move to consider that section if satisfied that otherwise grounds are made out. Section 474 in its terms goes to the court’s jurisdiction and is to be applied at the threshold.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.