NABE v Minister for Immigration & Multicultural Affairs

background and findings 3 The applicant is a national of Sri Lanka. He is a Tamil from Jaffna and a Roman Catholic. He is aged 26 years and single. He completed secondary school education in Sri Lanka and later a course in computer studies. He worked in Sri Lanka as a computer instructor and arrived in Australia on 30 April 2001. 4 The RRT accepted that during the applicant's schooling days, a fellow school pupil was killed in an army attack in 1984 when several bullets struck the school. It was accepted that there were occasional school closures and armed battles in the area and that the applicant's family home was damaged during the time that the Indian Peace Keeping Force ("IPKF") had a presence in the north of the country. The Tribunal also accepted that as a teenager living on the Jaffna Peninsula, the applicant was sometimes regarded with suspicion but it noted that, on one occasion, the applicant was released without charge after allegedly being investigated at an army camp. 5 The RRT did not accept that the applicant would have been released at the request of his mother if he was of on-going interest to the authorities or if he was seriously thought to be an active supporter of the Liberation Tigers of Tamil Eelam ("LTTE") or any other allied group. Further, the RRT said that even if it accepted that the applicant was beaten by the authorities while engaged in choir practice at his church and removed to a camp, this occurred several years ago while he resided in the vicinity of the main trouble spot in Sri Lanka. The fact that he was released from custody and was later able to travel to Colombo indicated, in the RRT's view, that he was not of any continuing interest to the authorities. 6 The applicant claimed that he was sometimes compelled to dig bunkers for the LTTE. The RRT noted that such activity had been commonplace in Jaffna and that it was done in order for the local population to protect itself in the event of shelling by the military. There was a reference by the RRT to articles in two newspapers, The Sri Lanka Monitor and The Sunday Times. However, these articles did not in fact refer to that purpose. The Tribunal noted that the applicant had not experienced any harm as a result of merely digging bunkers and found that any prospect of adverse attention from the authorities for that reason "is remote". 7 The RRT's reasons state that given that the Eelam Peoples Revolutionary Liberation Front ("EPRLF") now operates as a pro-government force with parliamentary representation, any perceived association between the applicant and the EPRLF did not indicate a real chance of persecution in the present or foreseeable future for any Convention reason.

CLAIMS AND FINDINGS 8 Although the applicant claimed that he worked as a cook for the LTTE for two and a half years, the RRT noted that he did not embrace the violent tactics employed by the LTTE and concluded that it seemed improbable that the applicant would have remained with the LTTE for so long given that he did not support its methods and given the apparent ease of his escape when he was, ultimately, required to undergo military training. The RRT referred to the applicant's claim that the authorities came to know of his alleged association with the LTTE and detained and beat him, which it said, was at odds with his capacity to travel, on two occasions, from Vavuniya to Colombo. The RRT did not accept that if the authorities discovered the applicant had a significant role with the LTTE over a substantial period of time they would release him after a few weeks of detention and then allow him to travel to Colombo. The RRT noted that the former militant group, the People's Liberation Organisation of Tamil Eelam ("PLOTE") now also operates solely as a pro-government force. The RRT found that it was "implausible" that in 1999 the applicant would have been detained for involvement with an organisation such as PLOTE. It concluded that in weighing all the relevant evidence, the applicant had fabricated his claim of his involvement with the LTTE and of continuing problems with the authorities due to his association with either the LTTE or PLOTE.

RRT conclusion 9 The RRT considered that the fact that the applicant was able to depart from Sri Lanka using a passport in his name indicated that he was not wanted by authorities and therefore had no actual need to retain a low profile while residing in Colombo. It did not accept that he departed on an illegally obtained passport. The RRT referred to extensive country intelligence information and concluded: "There is no doubt that Tamils have often been at risk of persecution in Colombo and elsewhere in recent years. The evidence also indicates, however, that almost half the population of Colombo is Tamil and that the risk of persecution is very far from universal. Aforementioned information indicates that, apart from those who have fled the authorities in the north, those most at risk are recently arrived young people without established links to Colombo. In the present case the applicant has a history of residence in Colombo of at least a year and no credible claims of harm there for any Convention reason. His sister resided there with him, at least for a time. The applicant registered with the authorities, thus indicating he established a valid purpose for residing in Colombo, as well as indicating he was not regarded as a security risk. The Tribunal is not satisfied that he has no work history or significant family or personal contacts still in Colombo. In all the circumstances the Tribunal finds it would be reasonable for the applicant to again take up residence in the capital where he does not face any real chance of persecution for any Convention reason. In considering all the circumstances of this case, including cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason."

applicant's case on review 10 The applicant submitted that the RRT committed jurisdictional error and that the privative provision in s 474 cannot cut down his entitlement to judicial review of the decision which involved such an error. The jurisdictional errors are said to arise from the claims referred to above. It is said that these errors go to the jurisdiction to refuse a visa under s 65 of the Act. Under that provision, the grant of a visa is conditional on the Minister being properly satisfied. Where there is an error of the type referred to in this case it is said the Minister could not be satisfied. The jurisdictional fact is said to be the proper satisfaction of the Minister. In reaching its decision the RRT committed an error in so far as the required satisfaction did not exist and therefore it is said that the power to make the decision refusing a protection visa cannot be exercised and this error cannot be protected by the privative clause. This involves a consideration of the operation of s 474.

Privative Provision - s 474 11 In terms, the language of s 474(1) of the Act as in force at the relevant time, would oust all judicial review. However, other provisions make it clear that this was not intended. Section 475A, for example, which is in Division 2 of Part 8 entitled "Provisions relating to privative clause decisions", is premised on the circumstance that the Federal Court under s 39B of the Judiciary Act 1903 (Cth) ("Judiciary Act")continues to have a role in the exercise of jurisdiction. Likewise, ss 477 and 478 assume that an application can be made to the Federal Court under s 39B of the Judiciary Act for a statutory writ in respect of a privative clause decision. Unlike s 476, the effect of s 474 is not to withdraw jurisdiction from the Court in relation to a decision. Rather, it purports to protect the administrative decision. What is apparent from these provisions is that s 474 is set in the context of a highly prescriptive regime directed to severely constrain judicial review of certain administrative decisions under the Act. 12 It is said that the expression "jurisdictional error" includes an error as to a jurisdictional fact as described in Craig v South Australia (1995) 184 CLR 163 at 177-179 and that where such an error is made, s 474 cannot operate to protect or invalidate the decision within which such an error is made. The submission is said to be based on observations by Gaudron and Gummow JJ in Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602, at 631-633 as follows: "… it is well settled that a privative clause cannot oust the jurisdiction of this Court to review decisions and orders which exceed Constitutional limits. Nor can it oust the jurisdiction conferred on this Court by sub-ss (iii) and (v) of s 75 of the Constitution with respect to matters '[i]n which the Commonwealth, or a person … being sued on behalf of the Commonwealth, is a party' and '[i]n which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth'. … Thus, it has been said that a privative clause cannot prevent this Court from reviewing decisions which involve the refusal by officers of the Commonwealth to discharge 'imperative duties' or which go beyond 'inviolable limitation or restraints'. On the other hand, it has been acknowledged that such a clause can protect against 'a mere defect or irregularity which does not deprive the tribunal of the power to make the award or order', or 'some procedural defect which would otherwise result in invalidity'. … Mandamus and prohibition are remedies which are granted in cases of jurisdictional error - refusal to exercise jurisdiction, in the case of mandamus, and excess of jurisdiction, in the case of prohibition. The terms of s 75(v) would be defeated if a privative clause operated to protect against jurisdictional errors being refusal to exercise jurisdiction, or excess of jurisdiction, in the latter case whether by reason of the constitutional invalidity of the law relied upon or the limited terms of a valid law. However, there is no constitutional reason, in our view, why a privative clause might not protect against errors of other kinds by, within the limits of the relevant legislative powers, operating to alter the substantive law to ensure that the impugned decision or conduct or refusal or failure to exercise a power is in fact valid and lawful." 13 The High Court is there speaking of its constitutional jurisdiction conferred by the Australian Constitution. Reference is also made to the observations of Deane and Gaudron JJ in Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 205-207. 14 The applicant also referred to the judgment of Merkel J in Walton v Philip Ruddock, Minister for Immigration and Multicultural Affairs [2001] FCA 1839, where his Honour gave consideration to the effect of s 474 as amended. In that case his Honour dismissed the application because the grounds relied on had not been made out on the material before the RRT so that the observations of his Honour were by way of obiter. After reviewing the authorities, his Honour did not reach any final conclusion, but observed that the ambit of the definition of privative clause protection needs to be considered in the context of the particular decision and the grounds of invalidity relied on. 15 In the instant case it is submitted for the Minister that the Hickman principle (R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598) should be applied to the facts bearing in mind the nature of the fundamental qualifications placed on the application of the principle by the case law, with respect to constitutional limitations or other basic restraints on the jurisdiction of a tribunal. Those qualifications indicate that not every error of fact or law has the effect of excluding the application of the protection. The error must be of a basic or fundamental nature, going to the existence of the jurisdiction being exercised. Not every error made in the course of reasoning to a conclusion will be at this level of significance. 16 It is apparent from the Explanatory Memorandum for the Migration Legislation Amendment (Judicial Review) Bill 2001 (Cth), which included the provision which is now s 474, that it was intended that the clause would give effect to the principles referred to by Dixon J in Hickman at 615. The Explanatory Memorandum refers to Hickman and then states in pars 14, 15 and 16: "14 New subsection 474(1) introduces a privative clause for decisions made under the Migration Act, regulations made under that Act or other instruments under that Act except for decisions made under the provisions set out in new subsection 474(4) or as prescribed under new subsection 474(5). A privative clause affects the extent of judicial review by both the Federal Court and the High Court of decisions covered by the clause. 15 A privative clause is a provision which, although on its face purports to oust all judicial review, in operation, by altering the substantive law, limits review by the courts to certain grounds. Such a clause has been interpreted by the High Court, in a line of authority stemming from the judgment of Dixon J in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598, to mean that a court can still review matters but the available grounds are confined to exceeding constitutional limits, narrow jurisdictional error or mala fides. 16 The intention of the provision is to provide decision-makers with wider lawful operation for their decisions such that, provided the decision-maker is acting in good faith, has been given the authority to make the decision concerned (for example, by delegation of the power from the Minister or by virtue of holding a particular office) and does not exceed constitutional limits, the decision will be lawful." (Emphasis added) 17 Where an empowering statute, on its proper construction, makes the observance of a condition "indispensable" to an administrator's exercise of jurisdiction, a privative clause will not protect it. Also, if there is an express, specific limitation on the jurisdiction of an administrative body to grant an application, unless satisfied of the matters specified, the protective provision cannot fairly be construed to evidence a purpose that the authority is empowered in respect of determinations reached otherwise than in compliance with those conditions which are essential to enliven its power. In the present case the essential pre-condition relied on by the applicant is the "satisfaction of the Minister" referred to in s 65 of the Act. 18 The issue raised in this case is whether the decision of the RRT is protected from judicial review by s 474 of the Act in its amended form. An examination of this question involves a consideration of the decision in Hickman. The principles stated by Dixon J in that case have consistently been applied in relation to protective or privative clauses over the past fifty-seven years. 19 The Hickman principle, which has been referred to as "classical" in relation to privative clauses, is expressed by Dixon J (in Hickman at 615-616) in these terms: "… Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bone fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body. … … But where the legislature confers authority subject to limitations, and at the same time enacts such a clause as is contained in reg. 17, it becomes a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity. In my opinion, the application of these principles to the Regulations means that any decision given by a Local Reference Board which upon its face appears to be within power and is in fact a bone fide attempt to act in the course of its authority, shall not be regarded as invalid." 20 In that case, the privative clause in question under the National Security (Coal Mining Industry Employment) Regulations provided that "the decision of a Local Reference Board shall not be challenged, appealed against, quashed, called into question or be subject to prohibition, mandamus or injunction in any court whatsoever". Notwithstanding this clause, the conclusion of the Court in Hickman was that the privative clause did not apply to protect the decision from review because it was clear that the words limiting jurisdiction, namely the requirement that the activity must be "in the coal mining industry", was not satisfied. There was no authority to make a decision in relation to an activity outside that industry. These were considered to be words of "final limitation" on the powers, duties and functions of the Board (at 618). Consequently, the protective clause did not prevent review by the High Court in circumstances where the decision related to an activity which was not in the "coal mining industry", namely that of lorry drivers associated with the mining operations. The Hickman case itself provides for important limitations on its application. 21 Subsequent to his judgment in Hickman, Dixon J in The King v Murray; Ex parte Proctor (1949) 77 CLR 387, again considered the same protective clause in relation to an express requirement for a quorum at a meeting as a pre-condition to the Local Reference Board performing its functions. His Honour pointed out that the application of the protection is to be applied on a two-step basis. His Honour there said at 399-400: "… There is necessarily an appearance of inconsistency between a provision which defines and restricts the power of a tribunal and prescribes the course it must pursue and a provision which says that the validity of its decrees shall not be challenged or called in question on any account whatever. The apparent inconsistency should be resolved by an attempt to arrive at the true intention of the legislative document containing the two provisions considered as a whole. The first step in such a process of interpretation is to apply to a provision like reg. 17 the traditional or established interpretation which makes the protection it purports to afford inapplicable unless there has been an honest attempt to deal with a subject matter confided to the tribunal and to act in pursuance of the powers of the tribunal in relation to something that might reasonably be regarded as falling within its province. There is nothing artificial in such an interpretation. For it could hardly be supposed, to take perhaps an extreme example, that it was intended that reg. 17 should give validity and protection to the awards of a tribunal established in relation to one industry when the tribunal intentionally stepped outside its allotted industrial field and proceeded to regulate an entirely different industry. A second step in interpreting the whole legislative instrument must be to consider whether particular limitations on power and specific requirements as to the manner in which the tribunal shall be constituted or shall exercise its power are so expressed that they must be taken to mean that observance of the limitations and compliance with the requirements are essential to valid action. For a clearly expressed specific intention of this kind can hardly give way to the general intention indicated by such a provision as reg. 17." (Emphasis added) 22 Because a quorum was not present in making the determination in that case, the Court held that the decision made could be reviewed and it was set aside because it was a necessary condition for the valid exercise of power that there be a quorum and consequently the determination was not protected by the privative clause (at 401). However, the error of law made in that case was of a fundamental nature which went to the constitution of the Board itself. 23 It is to be noted that in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [82] McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed), when referring to jurisdictional error, said: "What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law." (Emphasis added) 24 Several observations are appropriate in relation to the above extract from Yusuf. The first is that Yusuf was decided before the 2001 amendments to the Act inserting s 474 and the other amendments. The second is that Craig is cited in Yusuf in relation to the meaning of the expression jurisdictional error under the general law. The third is the observation by their Honours that there is nothing in the Act to suggest that the Tribunal is given authority to make a decision otherwise than in accordance with the Act. 25 In pars 24 and 25 of the Explanatory Memorandum it is said that the new s 476(1) makes it clear that the Federal Court shall not have any jurisdiction whatsoever in relation to a primary decision where it has been the subject of review by the RRT. An examination of the amendments to the Act indicates that the intention of the legislature was to greatly restrict the rights of applicants for protection visas, to obtain judicial review. 26 The Court's jurisdiction in my view has been restricted and this was clearly intended by the legislature for reasons expressed in the Second Reading Speech. In the Second Reading Speech, the Minister states that the proposed s 474 is based on "a very similar clause in Hickman's case". The Minister goes on to say: "The High Court has not since, despite opportunities to do so, repudiated the Hickman principle as formulated by Justice Dixon in Hickman's case. Indeed, that principle was described as 'classical' in a later High Court case. Members may be aware that the effect of a privative clause such as that used in Hickman's case is to expand the legal validity of the acts done and the decisions made by decision makers. The result is to give decision makers wider lawful operation for their decisions, and this means that the grounds on which those decisions can be challenged in the Federal and High Courts are narrower than currently. In practice, the decision is lawful provided: · the decision maker is acting in good faith; · the decision is reasonably capable of reference to the power given to the decision maker - that is, the decision maker had been given the authority to make the decision concerned, for example, had the authority delegated to him or her by the Minister for Immigration and Multicultural Affairs, or had been properly appointed as a tribunal member; · the decision relates to the subject matter of the legislation - it is highly unlikely that this ground would be transgressed when making decisions about visas since the major purpose of the Migration Act is dealing with visa decisions; and · constitutional limits are not exceeded - given the clear constitutional basis for visa decision making in the Migration Act, this is highly unlikely to arise. …" 27 As a consequence of the 2001 amendments to the Act, in particular s 474, it can no longer be said that nothing in the Act suggests that the RRT is given authority to determine questions of law or make a decision otherwise than in accordance with law. 28 In Craig (at 179) after referring to Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 171, the High Court said: "At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. That point was made by Lord Diplock in In re Racal Communications Ltd: 'Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision-making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so.'" (Emphasis added) 29 The Court in that case contrasted the position of an administrative tribunal which ordinarily lacked authority to determine questions of law with an inferior court which normally has jurisdiction to decide questions of law as well as questions of fact involved in matters in respect of which it has jurisdiction to determine the outcome. 30 Section 474 in terms makes it evident that the decision of the RRT is intended to authoritatively resolve questions of fact and law before it. That principle is qualified by the authorities to the effect that a privative clause will not apply to prevent judicial review where the decision is unconstitutional or in breach of a specific, express or indispensable precondition to jurisdiction or exercise of power, or where the empowering statute makes it clear that compliance with a condition is essential to the exercise of jurisdiction. Indeed, Hickman itself is an example of the latter situation in so far as the Court held that the privative clause did not operate to protect the Board's decision because the activity was not "in the mining industry", an expression which delineated the area of jurisdiction conferred. Accordingly, in this case, as a consequence of the 2001 amendments, the generalised statements as to jurisdictional error enunciated in Craig, are not determinative of the present proceedings. 31 In this case it is important to keep in mind that the power in s 65 is conditioned on the satisfaction of the Minister and not that of the Court.

Errors alleged 32 The first alleged error claimed to exist in the RRT decision is expressed in the reasons for decision as follows: "He claims that he was interrogated, beaten, and otherwise mistreated by the authorities while detained for two weeks on suspicion of involvement with the LTTE or with the People's Liberation Organization of Tamil Eelam (PLOTE). He claims that the authorities learned of his connections with the LTTE." (Emphasis added) 33 The applicant submits that the error relied on is that the claim made by him was that he was detained by the PLOTE for involvement with the LTTE and not by the authorities. This statement, it is said, points to jurisdictional error because the claim for protection was dealt with on an erroneous basis and the error was an important consideration which affected the decision. 34 In his original statement, the applicant stated that in January 1999 he went to a place called Vavuniya and remained there for some months. That was said to be an army controlled area where there were other groups favouring the government. The applicant then said: "They took me for interrogation and questioned me inhumanely. They beat me. they [sic] heated iron bar[sic] and burnt my arms. … I screamed. they [sic] continued to torture me." (Emphasis added) 35 This statement does not specify who it was that detained the applicant and interrogated him. 36 However, in the decision record of the delegate, dated 9 August 2001, the following statement appears: "The applicant claims that Vavuniya was under Sri Lankan Army control and that whilst in Vavuniya he was arrested by PLOTE people. The applicant claims that he was arrested by PLOTE because persons who came from Mullaitivu were suspected of being LTTE supporters. The applicant claims that the PLOTE also knew he had worked for the Tigers. The applicant claims that he was detained and tortured during the interrogation by the PLOTE. The applicant claims during the interrogation he admitted that he had been forced to work for the Tigers." (Emphasis added) 37 This statement in the delegate's decision clearly indicates that the applicant's claim was not detention and torture by the authorities, but by PLOTE. It was the decision of the delegate that was the subject of the review by the RRT and this statement as to the nature of the claim was before the RRT when considering the decision. Other material before the RRT did not specify clearly who detained and tortured the applicant. On the material I have referred to, other statements by the applicant and the relevant part of the transcript of the hearing before the RRT which was tendered in evidence, I am satisfied that there was an error by the RRT which could have affected the outcome because it bears directly on the question whether there were grounds, based on past persecution, for the applicant believing there is a real risk of persecution if returned. 38 The task is then to apply s 474 to the present case. There is nothing in this case to indicate that the decision to refuse a visa was not made bona fide in an attempt to exercise the power conferred, namely to decide whether the applicant had the necessary requirements to be granted a protection visa. The decision relates to the subject matter of the legislation, namely the refusal of a protection visa. The determination is reasonably referable to the function assigned to the RRT and there is no suggestion of any constitutional invalidity in the decision of the RRT. Nor is there any basis to suggest that the RRT was not in fact satisfied that the applicant was not a refugee, nor was there any inviolable provision or essential condition going to jurisdiction which was breached by the RRT in reaching its conclusion. I therefore consider that the error which I have found in the RRT decision is within the protection afforded to the RRT decision by s 474. 39 A further alleged error related to a claim by the applicant to have dug bunkers for the LTTE at Mullaithivu between 1996 and 1999. The RRT accepted that he dug bunkers for the LTTE but found that such activity had been commonplace. Reference was made by the RRT to two newspapers reports which in fact did not support that proposition. It is claimed that there was "jurisdictional error" within Craig and Yusuf because the reference to the newspaper reports was irrelevant. This does not follow in my opinion. The newspaper articles give a general background to the position in the country. They are not irrelevant. The fact that they may not support the conclusion expressed does not of itself indicate error. In this case there was a great deal of other information relied on. The RRT did not err in this respect. Even if there were some error, it was within the protection afforded by s 474. 40 It is also submitted by the applicant that the RRT did not give any realistic or genuine consideration to the applicant's claims. This is not an available ground of review: see Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at 435-442. In addition, I am not persuaded that there has been such a failure. The detailed reasons indicate that there has been a genuine and realistic consideration of the claims. 41 For the above reasons I dismiss the application with costs. Costs should be awarded in accordance with the usual principles.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate: Dated: 19 March 2002 Counsel for the Applicant: Mr B Zipser

Solicitor for the Applicant: Jamnadas and Associates

Counsel for the Respondent: Mr S Gageler SC Ms M Allars