NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs

The Primary Judge's Decision 4 On 12 November 2001, the appellant applied to this Court for a review of the Tribunal's decision. Her application stated that it was made "under Section 476" of the Migration Act 1958 (Cth) ("Migration Act") and referred to specific grounds set out in s 476. The application sought orders setting aside the decision of the Tribunal, remitting the matter to the Tribunal for further consideration and costs.

5 On 15 November 2001, the respondent filed a Notice of Objection to Competency based on the fact that the judicial review regime in Pt 8 of the Migration Act (including s 476) had been repealed by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) ("Judicial Review Act 2001") which commenced on 2 October 2001. Since that time, the sole source of jurisdiction in this Court to review the decisions of the Tribunal is s 39B(1) of the Judiciary Act 1903 (Cth) ("Judiciary Act"): see Migration Act, s 477(1). The respondent submitted that since the application seeking an order of review had not expressly invoked the jurisdiction conferred by s 39B(1) of the Judiciary Act and, indeed, relied on repealed provisions of the Migration Act, the Court lacked jurisdiction to deal with the matter. The primary Judge declined to accede to this submission on the ground that the appellant was a litigant in person and, for that reason, it was appropriate to address the issue of law raised by her application.

6 His Honour considered in some detail the effect of s 474(1) of the Migration Act, which provides as follows: "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." His Honour did so on the basis, as is clear, that the Tribunal's decision is a "privative clause decision" for the purposes of s 474(1). He held that the effect of s 474(1) was to render the decision of the Tribunal final and conclusive unless it could be shown that one of the three so-called "Hickman conditions" (R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598) was not satisfied. According to the primary Judge, the Hickman conditions would not be satisfied if "(i) the Tribunal [does] not make a bona fide attempt to exercise its power or … the decision is, on its face, beyond power; (ii) the decision does not relate to the subject matter of the legislation; or (iii) the decision is not reasonably capable of reference to the power given to the decision-maker." The primary Judge considered that in the circumstances of the present case all the Hickman conditions had been satisfied. Accordingly, the Tribunal's decision was protected by s 474(1) from the appellant's challenge. 7 Despite this conclusion, the primary Judge addressed the grounds raised by the appellant by reference to the repealed provisions of Pt 8 of the Migration Act. He concluded that even if the legislation had still been in force, the appellant had not established any ground of review.

Objection to Competency 8 In this appeal, the respondent again challenges the jurisdiction of this Court to deal with the application made by the appellant. The respondent submits that an application that purports to be made pursuant to the repealed Pt 8 of the Migration Act cannot be amended so as to invoke s 39B(1) of the Judiciary Act outside the time limitation imposed by s 477(1) of the Migration Act, that is 28 days from notification of the Tribunal's decision. Section 477(2) makes clear that this is a strict time limit, since it provides that the Court must not extend that period or "make an order allowing, or which has the effect of allowing" an applicant to lodge an application outside that period. 9 Counsel for the respondent, Mr Lloyd, did not dispute that if the original application could be characterised as an application for relief under s 39B(1) of the Judiciary Act, the application could be amended despite the period under s 477(1) having expired; Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155. He submitted, however, that the application could not be so construed because it expressly stated that it was an application under a different provision, cited grounds of review pertinent to a different regime and was made on the form approved for that regime. It was submitted that there was nothing in the application that could have enlivened the jurisdiction of the Court and that, therefore, the application was effectively a nullity. Amending such an application to invoke the jurisdiction conferred on the Court by s 39B of the Judiciary Act would, in the respondent's submission, be tantamount to making a new application and thus could not be permitted by the Court once the 28 day period specified in s 477(1) of the Act had expired. This argument was accepted by Conti J in NACA v Minister for Immigration and Multicultural Affairs [2002] FCA 63; and by Whitlam J in NABO v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 707. In neither of these cases was the applicant represented. 10 In NABW v Minister for Immigration and Multicultural Affairs [2002] FCA 464 Sackville J was faced with the same argument. His Honour, having considered the substantive challenges made by the applicant in that case, held that the applicant had failed to establish any jurisdictional error that might attract relief under s 39B(1) of the Judiciary Act. His Honour therefore concluded that any application to amend the application would be doomed to failure in any event. In Singh v Minister for Immigration & Multicultural Affairs [2002] FCA 502 Hely J discussed the issue (at [33] to [40]) but also did not find it necessary to decide the question. His Honour's comments at [39] are, however, pertinent: "Section 477 of the Migration Act has as its focus the time in which an application must be made to the Federal Court in relation to a privative clause decision, rather than the form in which such an application is required to be cast. In my view, it is at least reasonably arguable that s 477 should be construed as requiring that when s 39B is the source of the Court's jurisdiction to grant relief in respect of a privative clause decision, the application to the Federal Court must be made within the time prescribed. In the present case, s 39B is the source of the Court's jurisdiction, because it is the only provision under the umbrella of which the applicant's complaint, as articulated in the application, could be remedied if the complaint were made out. The failure to fill in the right form, and the other matters identified by counsel for the Minister, are procedural irregularities, rather than matters which go to the competency of the initial application." 11 In Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611, the respondent questioned the validity of an application for a review of a decision of the Tribunal that was made in a letter sent by the applicant, Ms Rishmawi, to the Court. The letter did not identify any grounds for the application but identified the file and the Tribunal's decision and stated it was "a formal application to the Federal Court for a review of the Tribunal's decision". In deciding that the letter was a valid application, Kiefel J observed that it was plain from her letter that Ms Rishmawi was seeking to appeal the nominated decision. Her Honour also observed (at [4]): "that the Migration Act does not make the Court's jurisdiction dependent upon fulfilment with any condition set by it, save that with respect to the time for the bringing of an application". Her Honour did not regard the failure to mention the basis of the Court's jurisdiction as fatal to the application. 12 Rishmawi v Minister might be distinguished from this case on the basis that the application here not only fails to mention the correct source of the Court's jurisdiction but identifies an incorrect source. Such a distinction would, however, elevate the form of the application over its substance. There are numerous decisions in this Court rejecting such an approach. In Liu v Minister for Immigration and Multicultural Affairs (1997) 72 FCR 345, for example, Davies J held that the failure to name the Minister for Immigration and Multicultural Affairs as respondent did not invalidate an application for review of a decision of the Tribunal. His Honour held that as the then s 480(a) of the Migration Act specified the identity of the parties to any such application, the Court could remedy the defect. Liu v Minister was followed in Yong v Minister, wherethe Full Court rejected the submission that the failure to name the Minister raised jurisdictional rather than mere procedural questions. The Court said this (at 167 - 168): "We cannot accept the argument. There is nothing in the language of Div 2 [of the Migration Act] to that effect, and there is not, we think, any reason of logic, experience or otherwise, for reading such a requirement into the Act. On the contrary, the injustice and extreme inconvenience which would flow if the implication suggested by the respondent were to be accepted, are, in our view, sound reasons why the implication should not be made… … It would be surprising if the Act were to be construed to mean that the consequence of a failure by an applicant to take the procedural or formal step of correctly naming a particular party as respondent, is that the Court lacks any jurisdiction to deal with any aspect of the matter. On the other hand, failure to take such a step could readily be seen as a question of practice and procedure and thus within the jurisdiction, and power, of the Court to entertain in the exercise of its discretionary powers to control its procedures." 13 In Wickremasinghe v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 125, North J followed Yong v Minister in holding that an application naming the wrong applicant was competent. His Honour stated (at 130) that the Court's powers to review a decision of the Tribunal were activated by the lodging of a document which states that a specified decision is under challenge and seeks a review of the decision. 14 In our view, whether an application invokes the jurisdiction of the Court conferred by s 39B(1) of the Judiciary Act is a matter of substance not form. In this case, the initiating process, although not framed in terms of a writ of mandamus or prohibition or an injunction, sought relief of a kind that is available only under s 39B(1) of the Judiciary Act. Moreover, the application clearly identified the decision challenged by the appellant. That decision could only be challenged in this Court pursuant to s 39B(1) of the Judiciary Act. In these circumstances, the jurisdiction of the Court was properly invoked and the primary Judge had jurisdiction to consider the appellant's challenge to the Tribunal's decision. It follows that we do not think that the decisions in NACA v Minister and NABO v Minister should be followed. 15 We add this observation. There may be cases where the application neither specifies the relief sought nor identifies the decision under challenge. We express no view as to whether such an application should be regarded as invoking the jurisdiction conferred by s 39B(1) of the Judiciary Act, since the point has not been argued. Nothing we have said should be taken, however, as implying that an application in that form could not invoke the jurisdiction so conferred.

The Appeal 16 At the hearing of this appeal the appellant sought leave to raise issues that had not been raised at first instance, including a contention that the Tribunal had denied her procedural fairness by addressing the question of relocation without prior notification to her. She also sought to tender material that had not been before the Tribunal or the primary Judge. The additional material comprises reports by the United States Department of State and the International Helsinki Federation relating to human rights practices in the Ukraine. 17 Mr Lloyd, counsel for the respondent, objected to the issue of procedural unfairness being raised at the appeal saying that, had the matter been raised at trial, the respondent would have wished to obtain further evidence and may well have wished to cross-examine the appellant or her agent with a view to showing that they were alive to the issue. In the face of objections by the respondent, and in the absence of any evidence on the point, it would be unfair to allow the allegation of procedural unfairness to be raised for the first time on the appeal. In any event, s 474(1) of the Migration Act prevents the appellant relying on a denial of procedural fairness as a basis for relief under s 39B(1) of the Judiciary Act. So much was decided by a majority of the five member Full Court in NAAV v Minister for Immigration and Multicultural Affairs [2002] FCAFC 228 (Black CJ, Beaumont and von Doussa JJ; Wilcox and French JJ dissenting); see at [648], per von Doussa J (with whom Black CJ and Beaumont J agreed). Judgment in NAAV v Minister was handed down after the hearing of the appeal, but the parties were given the opportunity to make written submissions as to its significance for the present appeal. 18 It is strictly unnecessary for us to deal with the appellant's tender of the country reports relating to human rights practices in the Ukraine. Nonetheless, the tender must be rejected. Not only were the reports before neither the Tribunal nor the primary Judge, but they came into existence after the Tribunal gave its decision. The reports are not relevant to any issues arising on the appeal. 19 There is, however, one aspect of the Tribunal's reasoning that raises concern. As indicated above, the Tribunal found that the appellant had a well-founded fear of persecution in Monastyriska for two Convention reasons, her religion and imputed political opinion. Despite this finding, in stating its views as to the reasonableness of the appellant relocating, the Tribunal referred only to persecution on the ground of religion and failed to address whether she was at risk of persecution elsewhere in the Ukraine by reason of her imputed political opinion. It said: "The Tribunal considers that the harm to which the applicant came is a consequence of her living in a small town. Elsewhere in the Ukraine, where the applicant is not known, she does not face any real chance of persecution for reasons of her religion; the Tribunal has already indicated, and the independent information supports, that the members of the Greek Catholic faith do not face a real chance of persecution in the Ukraine." 20 Mr Lloyd submitted that the relocation question was really part of the basic issue that had to be determined by the Tribunal, namely whether the appellant had a well-founded fear of persecution in the Ukraine against which the authorities are unwilling or unable to protect her. On this analysis the appellant, he submitted, had failed to make out her claim to satisfy the requirements for a protection visa because she had not shown that she would be at risk in a part of the Ukraine other than Monastyriska. This analysis does not, however, overcome the fact that the Tribunal simply did not ask if the appellant would be at risk of persecution from the Monastyriska police in other parts of the Ukraine. Such a risk might eventuate, for example, if under local laws she had to notify them of her new place of residence. 21 In the absence of s 474(1) of the Migration Act, it would be difficult to dispute the proposition that the Tribunal had committed a jurisdictional error, as that concept was explained in Craig v South Australia (1995) 184 CLR 163 at 179, per curiam and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351, per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed). The Tribunal, on its own findings, failed to ask the correct question, namely whether it was unreasonable for the appellant to relocate in the Ukraine away from Monastyriska on the ground that she had a well-founded fear of persecution for reasons of imputed political opinion. 22 The question, then, is the effect of the amendments to the Migration Act brought about by the Judicial Review Act 2001, in particular the enactment of s 474(1). Section 474(1) restricts review by courts, including this Court, of "privative clause decisions". Privative clause decisions are defined in s 474(2) and (as indicated in [6] above) it is not in contention that the decision of the Tribunal in respect of the appellant is a privative clause decision. 23 The effect of s 474(1) was considered by the five member Full Court in NAAV v Minister. As we have noted, although the decision was handed down after the hearing of the appeal, the parties were given an opportunity to make additional written submissions as to the effect of this decision on the issues raised in argument. 24 In NAAV v Minister, von Doussa J (with whom, on this point, Black CJ and Beaumont J agreed) stated (at [635]) that the Migration Act contained a hierarchy of provisions of which, in relation to privative clause decisions, s 474(1) was intended by Parliament to be the leading provision. His Honour held that "apparently inconsistent provisions of the Act" are to be construed as subject to the restrictions in s 474(1). Consequently, the effect of s 474(1) is to expand the jurisdiction of the relevant decision makers, including the Tribunal, so that a decision that is affected by irregularities that would, in the absence of s 474(1), amount to jurisdictional error will be within power, subject to satisfying the so-called Hickman conditions. The Hickman conditions require that the decision · be a bona fide attempt to exercise the power which the Migration Act reposes in the decision maker; · relate to the subject matter of the Migration Act; · be reasonably capable of reference to the power. In addition, it follows from the reasons of the majority in NAAV v Minister that a decision will not be protected from judicial review if it contravenes what is variously described as an "inviolable" condition, "jurisdictional factor" or "structural elements" found in the legislation: at [12], per Black CJ; at [619], per von Doussa J. 25 In this case, despite the Tribunal's failure to address the correct question relating to the relocation of the appellant, it cannot be said that the three Hickman conditions were not satisfied. Moreover, the Tribunal's failure to address the correct question does not constitute an infringement of an inviolable condition, jurisdictional factor or structural element found in the Migration Act. In this respect, we agree with the analysis of Sackville J in Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1108.

conclusion 26 The appeal must be dismissed. The appellant must pay the respondent's costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices SACKVILLE, HELY & STONE.

Associate: Dated: 18 September 2002 The appellant appeared in person. Counsel for the Respondent: Mr S Lloyd