WACN v Minister for Immigration and Multicultural Affairs

[2002] FCA 504

FEDERAL COURT OF AUSTRALIA

WACN v Minister for Immigration & Multicultural Affairs [2002] FCA 504

Federal Magistrates Act 1999 (Cth) s 39
Judiciary Act 1903 (Cth) ss 39B, 44
Migration Act 1958 (Cth) ss 36(2), 474(1), 474(2), 475A, 476(1), 477, 477(1)(b)
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Sch 1, Item 8(1)

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 discussed
R v Murray; Ex parte Proctor (1949) 77 CLR 387 discussed

Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438 referred to

Walton v Ruddock [2001] FCA 1839 referred to
NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 referred to
NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281 referred to
Craig v The State of South Australia (1995) 184 CLR 163 considered
Waterford v The Commonwealth of Australia (1987) 163 CLR 54 referred to

WACN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
W555 of 2001

RD NICHOLSON J
29 APRIL 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRLIA DISTRICT REGISTRY	W555 of 2001

BETWEEN:	WACN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	29 APRIL 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The applications be dismissed.

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

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRLIA DISTRICT REGISTRY	W 555 of 2001

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

JUDGE:	RD NICHOLSON J
DATE:	29 APRIL 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant brings two applications before the Court.  One is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 November 2001 adverse to an application made by him.  The other is an application under the Migration Act 1958 (Cth) (“the Act”) on the Court’s general form of application but not accompanied by any statement of claim. Each was lodged on 30 November 2001.

2. The Federal Court has no jurisdiction in respect of the Migration Act application. The former s 476(1) providing for application to the Federal Court for review of decisions of, inter alia, the Tribunal, was repealed with effect from 2 October 2001 by the Migration Legislation Amendment (Judicial Review) Act 2001. The new Pt 8 of the Act no longer provides for any application to the Federal Court. Accordingly, the Migration Act application must be dismissed.

3. The decision to which the review application relates affirmed a decision of a delegate of the respondent not to grant to the applicant a protection (class XA) visa.  The applicant arrived in Australia on 1 March 2001.  He applied for the visa on 10 April 2001.  The delegate’s refusal occurred on 18 June 2001. 

   Relevant legislative provisions

4. Under s 36(2) of the Act a non- citizen in Australia is eligible for a protection visa if that person is someone: “… to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.” The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967. The expression “Convention” will be used to mean the Convention as amended by the Protocol. The same criterion appears in Sch 2 of the Migration Regulations items 785 and 866.

5. Article 1a(2) of the Convention defines a “refugee” to be any person who:

   “…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.

   The reasons specified in Article 1a(2) are known as Convention reasons.  The existence of such reasons threatening the life or freedom of a refugee in a territory to which it is proposed he or she be expelled or returned gives rise to a protection obligation prohibiting such expulsion or return as a consequence of Article 33 of the Convention.

   Applicant’s claims

6. In a statutory declaration supporting his application for the visa the applicant said that he was twenty years old and was a citizen of Afghanistan without a right of residence elsewhere.  He claimed to be of the Sayed minority and to be a Shi’a.  His people were described as Sayed of Hasara because they lived among Hasara people.  He described the basis of his claimed well-founded fear of persecution in the following terms:

   “5.The Taleban came to our area between 8 months and a year ago.  The Taleban took away some young Hazara men to serve in their army.  They harassed people and my father would not allow me to go outside my village.  My father told me that the Taleban detain and interrogate people and sometimes kill them or make them fight in their army.  We did not go out because we were so afraid of the Taleban.

   6.The Taleban accused us of not being Muslims and told us to recited the Kalemah, or Creed of Islamic faith.”

7. In the reasons of the Tribunal of which review is sought, the claim was articulated in the following terms:

   “The applicant is about 22 years of age and had claimed (although he appeared to disavow this claim at the hearing before the Tribunal) that he feared be (sic) into the Taliban army.  He fears mistreatment at the hands of the Taliban and fears arrest.  He said that they did not respect his family’s properties (sic) rights.”

8. It will be noted that the claim is not formulated so as to specify which of the Convention reasons the applicant claimed to be applicable in his case.  For reasons which will further appear, that is not material because the Tribunal disbelieved his claim to be from Afghanistan and consequently did not believe the basis of his claim could lie in fear of the Taliban. 

   Tribunal’s findings and reasons

9. The Tribunal found that the applicant was not a convincing witness and was not satisfied he came from Afghanistan or was an Afghan national.  It based its conclusions on the following considerations:

   (1)His lack of basic knowledge of geography and the location of his hometown.

   (2)Great variation in the quality of his responses including short responses to matters with which he could be expected to be familiar.

   (3)His lack of knowledge concerning the Afghanistan identity document and Hasara life and words. 

   (4)Confusion which he was said to have exhibited about his problems in Afghanistan.  The Tribunal described these in the following terms:

   “He feared being recruited by the Taliban to fight for them.  His evidence at the hearing was that as a descendant of the prophet he was studying religion, and as a result he would not be called up to serve in the army.  He claimed at hearing that he feared being killed by the Taliban but not having to fight for them.  He seemed uncertain about when and if the Taliban caused him problems.  He spoke in generalizations about harassment of the Taliban but he did not claim to have had personal problems at the hearing.  His father told him to hide from them.  He said that that (sic) when they came they did not have the right of ownership but he did not claim that his father had lost their land.  He did not give any convincing evidence about his or his family’s problems with the Taliban.”

   (5)His dialect was spoken in Baluchistan in Pakistan.  That was supported by a linguistic analysis and the Tribunal found it consistent with its views that the applicant had not lived in Afghanistan.  It reached this view on the basis that the linguistic report was persuasive only and not conclusive of the issue of ethnicity because it was of the view that there must have been some influence on the Afghanistan dialects due to migrations in recent years.  Additionally, the applicant had a reasonable understanding of English.  It found that was consistent with its views that he was not from Afghanistan where English is little known. 

10. The Tribunal was therefore not satisfied that the applicant was from Afghanistan. It considered he may well be a national of Pakistan. He did not claim any fear of persecution in Pakistan or any other state. The Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution within the meaning of Convention and therefore he was not a person to whom protection obligations were owed so that he did not satisfy the criterion set out in s 36(2) of the Act to qualify for a protection visa.

    Grounds of review

11. The applicant is aged twenty-two and has no legal training.  He was not represented by a lawyer.  Understandably, the ground of review stated in the application did no more than assert that the Tribunal was wrong in fact.  Other matters raised by the applicant in the course of the hearing were as follows:

    (a)The findings of the linguistic analysis were inaccurate.

    (b)The Tribunal had not asked him questions on many matters on which it had made findings.

    (c)Cassettes of his interviews had been lost. 

    Jurisdiction

12. Where an application is made to the Federal Court on or after 2 October 2001 to review a privative clause decision, the Court only has jurisdiction pursuant to ss 39B or 44 of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) or s 39 of the Federal Magistrates Act 1999 (Cth): see ss 475A and 477 of the Act and Item 8(1) of Sch 1 of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).

13. The Federal Court does not have any jurisdiction in respect of the review application pursuant to s 44 of the Judiciary Act or s 39 of the Federal Magistrates Act 1999 (Cth).

14. In its terms the review application does not seek relief under s 39B of the Judiciary Act. However, the argument proceeded on the basis that the application was viable and I considered that it should be treated as an application seeking such relief. The application was commenced within the period of twenty-eight days limited by s 477(1)(b) of the Act.

15. Pursuant to s 474(2) of the Act, the Tribunal’s decision to which the application relates is a “privative clause decision”. The effect is that s 474(1) provides that the decision is final and conclusive, cannot be challenged or reviewed or called in question in any court and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

16. Despite the literal breadth of that provision and its formulation as a clause ousting the jurisdiction of courts, review may nevertheless take place in the limited circumstances recognised in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 and R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 399 – 400. The effect of those decisions is that in order to impugn a decision covered by a privative clause an applicant for review must establish one of three conditions. The first, which is clearly not met in the present case, is that the constitutional authority of the Parliament to define the powers of the decision-maker has been exceeded. Alternatively, it must be shown that the exercise of power was unrelated to the subject matter of the legislation. That conduct is also not satisfied in the present case: the Tribunal was reviewing a decision by the delegate refusing to grant a protection visa to the applicant, that being the relevant subject matter. The third alternative is to show that the decision made was, on its face, beyond power or was not a bona fide attempt to act in the course of the Tribunal’s authority.  This was not alleged, nor could it be.

17. There is, however, divided opinion between judges of the Court as to whether these “Hickman conditions” admit of matters going to “jurisdictional error” or “natural justice”: see Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438; Walton v Ruddock [2001] FCA 1839; Contra NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263; NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281. There are divided views on what may constitute “jurisdictional error”. For those who consider it lies within the jurisdiction of the Court the description relied upon is that given in Craig v The State of South Australia (1995) 184 CLR 163 at 179 where Brennan, Deane, Toohey and McHugh JJ said:

    “If an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

18. Assuming, in the interests of the applicant that jurisdictional error and natural justice lie within the remaining permitted jurisdiction in this area in the Court, it is necessary to examine the matters raised by him and the circumstances of the matter generally to see whether any of those matters are raised. 

    Reasoning

    Linguistic analysis

19. The linguistic analysis was dated 23 May 2001.  The appeal book shows that on 30 May 2001 the Department of Immigration & Multicultural Affairs wrote to the applicant forwarding to him a copy of the analysis and inviting his comments.  He denies receiving that letter.

20. However, on 5 June 2001 a letter was received by the Department from the solicitors for the applicant referring to the letter of 30 May 2001 and making submissions in relation to the linguistic analysis.  As previously stated, the decision of the delegate was made on 18 June 2001.  That was after the allowance of additional time to the solicitors to respond to the letter of 30 May 2001. 

21. The applicant’s application for review by the Tribunal was lodged on 22 June 2001.  On 10 September 2001 the solicitors for the applicant made submissions to the Tribunal concerning the linguistic analysis and the weight which should be accorded to it.  On 18 September 2001 a letter from the applicant was filed with the Tribunal.  In that letter the applicant presented his submissions both in relation to the linguistic analysis and to the extent of his geographical knowledge. 

22. In these circumstances it is not correct that the applicant lacked opportunity to make submissions concerning the linguistic analysis. 

23. As explained to the applicant during the course of the hearing, even if the Tribunal was wrong in relying on the linguistic analysis, its error of fact does not constitute an error of law for the purpose of founding a review: Waterford v The Commonwealth of Australia (1987) 163 CLR 54 at 77. Additionally it is to be noted that, as the reasons of the Tribunal spell out, the report was taken as persuasive only and not as conclusive. The conclusions of the Tribunal were reached with regard to four other factors than the linguistic analysis.

    Lost cassettes

24. The appeal book contains an acknowledgment of receipt by the applicant of his interview tapes on 5 May 2001. 

    Absence of questions

25. A reading of the reasons of the Tribunal shows that the Tribunal asked many questions of the applicant. 

    Submissions generally

26. The applicant argued his case before the Court with obvious intelligence and perspicacity.  He clearly felt a sense of injustice in relation to findings made favourably to other persons whom he regarded as being in the same situation as himself and as having the same linguistic background.  However, the only question for this Court to consider is whether in his particular case the Tribunal committed any error of law of the type of which the Court can now take cognisance.

27. The applicant asked that the matter be referred back to the Tribunal where he could “explain everything” and make out his case.  It was made clear to the applicant that the Court had no power to remit the matter for reconsideration save where it had jurisdiction to do so. 

28. I have already expressed the opinion that there is nothing in this case which would invoke the three Hickman pre-conditions previously referred to. Having considered both the specifics and generality of the applicant’s submissions, I consider there is nothing which raises issues going to whether jurisdictional error arises or whether there is any breach of natural justice. The consequence is that the effect of the Act as amended by Parliament with effect from 2 October 2001 (after which date the applicant’s review application was lodged) is that the decision of the Tribunal is “final and conclusive” in this particular case. Whether or not the applicant accepts the correctness of the Tribunal decision, the law has vested it with the quality of conclusiveness. There is, therefore, nothing which enlivens the jurisdiction of this Court to provide relief pursuant to s 39B of the Judiciary Act.

    Conclusion

29. It follows for the above reasons that the application must be dismissed.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Associate:

Dated:             29 April 2002

The Applicant represented himself.
Counsel for the Respondent:	Mr PR Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 April 2002
Date of Judgment:	29 April 2002