WABB v MIMIA - [2002] FMCA 94

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WABB v MIMIA

[2002] FMCA 94

MIGRATION – Appeal from a decision of the Refugee Review Tribunal – jurisdictional error – whether Tribunal made jurisdictional error in appearing to take into account material it claimed to have disregarded and ignoring relevant material - jurisdiction of the Federal Magistrates Court under s.39B of the Judiciary Act 1903 (Cth) where the Tribunal’s decision is a privative clause decision under s.474(1) of the Migration Act 1958 (Cth).

Migration Act 1958 (Cth) ss. 36(2), 65(1), 474, 477, 483A
Judiciary Act 1903 (Cth) s.39B

Applicant:

WABB

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

WZ 64 of 2002

Delivered on:

24 May 2002

Delivered at:

Sydney

Hearing Date:

13 May 2002

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Mr A Jenshel

Solicitors for the Respondent:

Mr T Carey of Australian Government Solicitor

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 64 of 2002

WABB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

In this matter the applicant is a forty-four year old Iranian who seeks a review of the decision of the Refugee Review Tribunal, constituted by John Lynch, made on 12 October 2001 affirming a decision of the Delegate 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 of 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 applicant filed his application for an order for review originally on the form provided for a notice of appeal on 17 October 2001. The form used was replaced by the appropriate application form on 18 October 2001. The application states that the applicant is aggrieved by the Tribunal’s decision because:
“The decision does not consider…

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 94
Decision Date: 24 May 2002

CaseChat Overview and Summary

The case of WABB versus MIMIA was adjudicated in the Federal Magistrates Court of Australia. The primary dispute concerns the interpretation and application of Section 474 of the Migration Act, a privative clause that renders decisions under the Act final and conclusive. The applicant, WABB, sought a review of a decision made by the respondent, MIMIA. The court was tasked with determining whether the privative clause in Section 474 of the Migration Act precluded judicial review of the decision in question and, if so, whether any other legal grounds existed to warrant such a review.

The court had to decide if the privative clause in Section 474 of the Migration Act precluded judicial review of the decision made by MIMIA. This involved examining the scope of the privative clause and its implications on the court's jurisdiction. Additionally, the court needed to consider whether any error or omission by the decision-maker would allow for judicial intervention under Section 39B of the Judiciary Act 1903 (Cth). The court's analysis also included a review of previous interpretations of Section 474 by the High Court and other federal courts to ascertain the appropriate approach to be taken.

The court found that Section 474 of the Migration Act did indeed preclude judicial review of the decision in question, as it is a privative clause that renders decisions under the Act final and conclusive. The court held that it should apply Section 474 at the threshold and not proceed to assess the case as if the clause did not exist. This approach was supported by previous decisions, which emphasized that the privative clause goes to the court's jurisdiction. The court further noted that without any error by the decision-maker that would enliven the entitlement to an order under Section 39B, there were no grounds for the court to revisit the determination of MIMIA.

The court dismissed the application and ordered that the applicant pay the respondent's costs in accordance with Part 21.10 of the Federal Magistrates Court Rules.

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 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 final(i)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.” 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 MIMA [2002] FCA 206 and SBAE v MIMIA [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 SBAE 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 although it has received the support of Marshall J in VAAC v MIMA [2002] FCA 573. In Turcan v MIMA [2002] FCA 397 Heerey 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

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