N 44 v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicants are citizens of Romania who arrived in Australia in March 1995. Shortly thereafter they lodged an application for protection visas with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) ('the Act"). On 20 June 1996, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the protection visas and on 19 July 1996 the applicants sought review of that decision in the Refugee Review Tribunal ("the RRT"). The application for review was dismissed by the RRT on 21 December 1998 and the applicants now seek review by this Court under the Act. 2 The application requires consideration of the decision of the RRT in the light of the well-known definition of "refugee", in the Convention Relating to the Status of Refugees 1951 as amended by the 1993 Protocol, Article 1A(2), as being a 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…"

Preliminary issue - judicial power 3 Before considering the "refugee" question, however, it is necessary to resolve a constitutional question raised by the applicants as to whether the decision of the RRT is ineffective because it amounts to an exercise of the judicial power of the Commonwealth which can only be exercised by a court in accordance with Chapter III of the Constitution. The submission is that a decision that a person is not a "refugee", and therefore not entitled to a protection visa, is a judicial decision and cannot be made by the RRT because it is an administrative review body and not a court. 4 Pursuant to the requirements of s 78B of the Judiciary Act 1901 (Cth), notice of the constitutional question was given to the Attorneys-General of the Commonwealth and the States but no intervention was forthcoming. 5 In the amended Application for judicial review, the constitutional matters raised are expressed as follows: "Constitutional Grounds 1. Re s.476(1)(b) - the delegate of the Minister who purported to make the decision to refuse to grant protection visas, and the Tribunal Member in affirming that decision, exercised the judicial power of the Commonwealth as neither the delegate nor the Tribunal Member was constituted as a Chapter III Constitutional court. 2. Re s.476(1)(c) - the decision of the delegate to refuse to grant protection visas, and the decision of the Tribunal Member affirming that decision, were not authorised by the Migration Act 1958 as the purported authority to make such decisions under the Act is void for the reason that the decision of the delegate, and the decision of the Tribunal Member, were judicial decisions and offensive to Chapter III of the Constitution. 3. Re s.476(1)(d) - the decision of the delegate to refuse to grant protection visas, and the decision of the Tribunal Member affirming that decision, were improper exercises of the power conferred by the Migration Act 1958 as such decisions are judicial decisions and offensive to Chapter III of the Constitution."(Emphasis added) 6 It can be seen that the submissions are that the delegate of the Minister and the RRT member exercised the judicial power of the Commonwealth. In considering these submissions I will approach the question as having regard to the role of the RRT. The same reasoning applies, a fortiori to functions of the Ministerial delegate. 7 In relation to these grounds it should be noted that each of the grounds is directed to a situation where the RRT review application is refused. The applicants' position appears to be that if the application for review was granted by the RRT there would be no exercise of judicial power. This is a curious consequence to say the least but appears to be premised on the basis that upon dismissal of an application for review, the decision will be enforced by way of detention and deportation, whereas if the application is granted no such consequences will follow. 8 The nature of the judicial power of the Commonwealth was recently considered by the High Court in The Attorney-General of the Commonwealth v Breckler [1999] HCA 28. The Court, in that case, unanimously held that a determination by the Superannuation Complaints Tribunal under s 37 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) ("the Complaints Act"), was not an exercise of judicial power. The reasons given by the Court discuss the relevant authorities in sufficient detail to make it helpful for present purposes. 9 In the present case the applicants base their submissions on statements made by Kirby J, in his separate judgment in Breckler, at par 84, where his Honour said: "The characterisation of a power as judicial cannot therefore depend only on the use of particular verbal formulae. It must also be derived from: (1) a consideration of what the tribunal in question is authorised to do; (2) whether its functions purport to deprive those affected of access to the courts for the resolution of connected legal controversies; and (3) to what extent the tribunal's decisions, once made, are directly enforceable, as the orders of courts typically are … Nor is it conclusive that the tribunal which is impugned makes decisions affecting controversies concerned with the property of private citizens or outside the central functions of the Executive Government … These can be characteristics of administrative bodies as well as of courts." 10 For present purposes it is convenient to approach the submissions in the light of the considerations referred to in the above observations. 11 The applicants' counsel refers to s 65 of the Act which is, for the purposes of the decision under review, in these terms: "65(1) After considering a valid application for a visa, the Minister: (a) if satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and (iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 501 (special power to refuse or cancel) or any other provisions of this Act or of any other law of the Commonwealth; and (iv) any amount of visa application charge payable in relation to the application has been paid; is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa. (2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3)." (Emphasis added) 12 The applicant points out that this section requires the Minister, upon being satisfied of certain criteria, to grant a visa, and if not so satisfied to refuse a visa. There is no provision for the exercise of any discretion by the Minister. One of the other criteria prescribed by the Act, within s 65(1)(a)(ii), is found in s 36 of the Act, which provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen within Australia to whom Australia has protection obligations under the Refugees Convention as Amended by the Refugees Protocol. It is said that a decision as to whether a person is a "refugee" is one of a judicial nature which gives rise to serious consequences, because under s 198(2) of the Act there is an obligation to remove an unlawful non-citizen as soon as reasonably practicable. On a review application to the RRT under s 415 of the Act, the RRT has all the power of the Minister, and its decision is taken to be the decision of the Minister except for the purpose of appeals from decisions of the RRT. 13 Counsel for the applicants also submits that there is no procedure for merits review of the RRT decision and that the RRT decision operates to deprive the applicants of access to the courts for the resolution of a controversy. Although some review is available it is limited to s 476 of the Act and s 75(v) of the Constitution. 14 Finally, it is submitted that the Minister's decision is directly enforceable in the same way as an order of the Court. It is said that the consequence of a refusal by the RRT of a review application is that the applicant is subjected to detention, deportation and persecution when returned to the country of nationality. 15 In my view none of the above submissions can be accepted. 16 As to the first, the function and powers of the RRT are set out in s 415 of the Act. Its function is to review administrative decisions made by the Minister and for that purpose it can exercise all the powers of the Minister or his delegate. A decision of the RRT can be substituted by the Minister with another decision, if the Minister thinks that it is in the public interest to do so, and where the decision is more favourable to the applicant, regardless of whether the RRT had the power to make the substituted decision: see s 417. These considerations lend both colour and support to the view that the function performed by the RRT is one of administrative and not judicial review. 17 Other matters which indicate that the power exercised by the RRT is administrative and not judicial is found in s 420 of the Act, which provides that the RRT in reviewing a decision is not bound by technicalities, legal forms or rules of evidence. There is also provision for reconstitution of the Tribunal where a member, during the course of a review, ceases to be a member or is not available for the purposes of the review, so that the newly appointed member can constitute the Tribunal for the purpose of finishing the review: see s 422. There is provision in the legislation, as applicable at the time of the decision, for a review "on the papers": see s 424. Where a hearing takes place, the only obligation on the RRT is to give the applicant an opportunity to appear before it to give evidence, and to notify the applicant of that entitlement: see ss 425(1)(a) and 426(1)(a). However, the Tribunal is not required to obtain evidence from any person whom the applicant may seek to call: see s 426(3). There is no provision for examination or cross-examination of any other person as of right: see s 427(6)(b). Nor is there any right of oral address: see ss 425(2) . In addition, the Tribunal has power to obtain such other evidence as it considers necessary: see s 425(1)(b). These features of the way in which the RRT is permitted to conduct its proceedings are not found in the procedures of a Chapter III Court. 18 These considerations, in my view, cumulatively lend support to the conclusion that the RRT is an administrative body and serve to characterise its function as being administrative rather then judicial. 19 It is true that the RRT can determine whether certain statutory criteria exist in its view and that such a determination will lead to the consequence that statutory enforcement powers will be enlivened, but this does not necessarily point to the existence of judicial power. 20 As the majority judgment in Breckler points out in par 45: "A determination which 'constitutes the factum by reference to which' legislation operates to confer curially enforceable rights and liabilities does not necessarily involve the exercise of judicial power … The provisions we have discussed would involve … 'an independent exercise of judicial power' to give effect in this way to a determination by the Tribunal." 21 In the present case, the determination that a person is or is not a refugee and is not entitled to a protection visa is not final or conclusive. In reaching a conclusion on this question it is deciding administratively whether a criterion exists which in turn activates statutory enforcement powers contained in the legislation unless the Minister intervenes under s 417. In addition, the decision of the RRT is subject to review by the Federal Court under the Act and the High Court has jurisdiction to review the decision under s 75(v) of the Australian Constitution. Most importantly, the RRT simply does not have power to enforce its decisions or carry them into effect. Its decisions must ultimately be enforced by Court order if the statutory powers are enlivened as a consequence of the determination. Any "enforcement" consequences which flow from RRT decisions arise as a consequence of the provisions of the Act being enlivened. The RRT has no power, for example, to punish for contempt or to sequestrate property or to exercise any other enforcement measure which is normally found in the armoury of a court. Because this essential attribute of judicial power is lacking, it follows that the Act does not confer Chapter III judicial power on the Tribunal. Accordingly, the submissions as to the conferral of judicial power of the Commonwealth on the RRT have not been made out. 22 I now turn to consider the matters raised in relation to the RRT decision under consideration.