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[2002] FCA 1083
respondent. The application was dismissed. The applicant was ordered to pay the respondent's costs.
The Federal Court upheld the Tribunal's decision in the judicial review proceeding. The applicant's written allegations did not identify evidence the Tribunal had ignored or provide support for bias, and the Court found that the Tribunal had considered the claim. The two documents produced in Court could not establish error in the Tribunal's decision because the Tribunal had not seen them. Applying the Full Court's recent interpretation of the Migration Act's privative clause, Branson J found no basis to interfere with the decision. The application was dismissed with costs.
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2,349 words · generated 01/10/2026
In Nalu of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1083, Branson J considered an application for judicial review of a Refugee Review Tribunal decision. The Tribunal had affirmed a delegate's refusal to grant the applicant a protection visa. Its decision was handed down on 23 May 2002, and the applicant's Federal Court application was dated 20 June 2002 ([1]).
1 cited instrument linked from this judgment.
The applicant was an Indian citizen. He had arrived in Australia on 30 January 2000 on an Indian passport and held a temporary business visa allowing multiple entries until 15 May 2000 ([5]). He claimed membership of the Muslim League and persecution in India. The Tribunal described his claims as “vague, generalised and generic”, did not accept their veracity, and was not satisfied that he faced persecution because of his religious or political activities. It concluded that he did not meet the protection criterion in s 36(2) of the Migration Act 1958 (Cth) ([5]).
The applicant appeared before Branson J without a lawyer and with the assistance of a Hindi/English interpreter. The judge considered that he spoke little English ([2]). His filed application and submissions contained legal references and authorities, but little reference to the Tribunal's actual decision. The submissions did not address the Full Court's decision in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, delivered on 15 August 2002 ([3]). Branson J expressed concern that someone may have exploited a vulnerable person by purporting to have qualifications they did not have. She also said she could not take the matter further ([4]).
The written submissions alleged that the Tribunal had ignored relevant evidence, acted with actual bias, failed to consider the applicant's claims, and failed to investigate his persecution claims in India ([10]-[12]). The Court found that the assertions about ignored evidence and contradictory independent evidence were not particularised. The material before it did not support actual bias, and the applicant made no oral submission of actual bias ([11]). The Court also found that the Tribunal had considered the claim, though it did not accept it. The judge treated the applicant's credibility as a matter for the Tribunal ([12]).
At the hearing, the applicant tendered two documents that had not been before the Tribunal. One, dated 20 July 2002, purported to be from the Indian Union Muslim League Ward No. 6 in Calcutta and referred to an arrest warrant and a warning not to return ([14]). The other, a report dated 16 July 2002, described searches of court records and asserted that the applicant had been implicated in politically motivated cases ([15]). The respondent objected to their relevance. The Court upheld that objection because the documents were not before the Tribunal ([16]).
Branson J dismissed the application and ordered the applicant to pay the respondent's costs ([17] and the formal orders).
The principal legal setting was s 474(1) of the Migration Act. As quoted in the reasons, the provision stated that a privative clause decision was “final and conclusive”, could not be challenged or reviewed in court, and was not subject to specified judicial remedies “on any account” ([6]). Branson J immediately qualified the apparent breadth of that wording: s 474(1) “does not mean what it says”, but left “little scope for judicial review” ([7]).
That construction followed NAAV, a Full Court decision delivered shortly before the hearing. Branson J noted that the members of the Full Court treated s 474(1) as a privative clause of the kind considered in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 ([8]). The reasons reproduce Dixon J's description of the conditions under which a decision would not be invalidated despite non-compliance with requirements governing the decision-maker's proceedings or authority: the decision must be a bona fide attempt to exercise power, relate to the subject matter of the legislation, and be reasonably capable of reference to the power conferred ([8]).
The judgment also records broad agreement in NAAV that a clearly expressed legislative requirement making observance of a particular procedure a precondition to a valid decision might override the general intention expressed by the privative clause ([9]). Branson J therefore examined whether the Tribunal's decision fell within the Hickman conditions and whether an inviolable procedure had been breached.
The decision satisfied the conditions, on the material before the Court. Branson J found no basis to conclude that it was not a bona fide attempt to exercise the Tribunal's power. It plainly concerned the subject matter of the Act and was referable to the power given to the Tribunal ([13]). The Court also said no inviolable procedure had been identified as having been breached ([13]). The judgment cites R v Coldham; Ex parte The Australian Workers' Union (1983) 153 CLR 415 in connection with that point.
The factual allegations did not alter that assessment. The claim that the Tribunal ignored evidence was unsupported by particulars identifying either the evidence allegedly overlooked or the contradictory independent evidence ([11]). The assertion of bias likewise lacked support in the material before the Court, and the applicant did not make an oral submission alleging actual bias ([11]). The claim that the Tribunal had failed to consider the applicant's case was inconsistent with the Tribunal's reasons, which showed that it had considered the persecution claim and rejected its veracity ([12]).
The judge also addressed the possible meaning of the allegation that the Tribunal had failed to investigate. If it meant that the Tribunal should have investigated the applicant's claims in India, the Court held that the Tribunal had no such obligation ([12]). The judgment does not establish a broad proposition about every kind of investigation or every protection visa matter. Its statement is confined to this allegation and the proposed investigation described in the reasons.
Finally, the two documents tendered in Court could not retrospectively show that the Tribunal had made an error on the record before it. Neither was before the Tribunal, so the Court upheld the respondent's objection to their relevance in the review proceeding ([16]). The judge's further observation that the documents might have carried little weight if presented earlier was expressly conditional. She noted that their authors' opinions could not be probed because the bases for them were not available for examination ([16]).
This judgment did not announce a new statutory amendment or a change to the legal test. Its immediate legal context was the Full Court's decision in NAAV, delivered on 15 August 2002, less than three weeks before the hearing in this matter. Branson J applied the approach that the Full Court had taken to s 474(1) ([3], [7]-[9]).
Before the decision in Nalu, the statutory text appeared to exclude review in absolute terms: a privative clause decision was described as final and conclusive and not reviewable in any court ([6]). The judgment explains that the provision's legal effect was not simply its literal wording. Relying on NAAV and the Hickman approach, the Court treated the clause as restricting review while preserving inquiry into whether the decision was a bona fide exercise of power, related to the legislation's subject matter, and was referable to the conferred power ([7]-[8]).
The reasons also record a qualification concerning procedure: a clear legislative intention to make compliance with a particular procedure a condition of a valid decision could prevail over the general privative-clause intention ([9]). In this case, however, Branson J found no such “inviolable procedure” that the Tribunal had failed to observe ([13]).
The “after” position that can safely be described from this judgment is narrow. Branson J dismissed this application because the Tribunal's decision met the described conditions and the alleged errors were not established on the material before her. The supplied judgment does not set out later legislative developments, later appellate decisions, or subsequent treatment of NAAV or Nalu. It therefore cannot establish how the doctrine developed after 3 September 2002.
At [7], Branson J said: “Section 474(1) does not mean what it says; nonetheless it leaves little scope for judicial review.” In plain English, the clause's absolute wording did not settle its full legal effect. The judge followed the Full Court's view that review remained possible in a limited field, rather than treating the provision as a complete bar.
At [8], the reasons quote Dixon J in Hickman: a decision may be protected if it is a “bona fide attempt” to exercise power, relates to the legislation's subject matter, and can reasonably be connected to the power given to the body. This was not a free-standing assessment of whether the Tribunal reached the correct factual conclusion. The question in the present case was whether the decision met the stated conditions for the privative clause's protection.
At [12], Branson J said: “The credibility of the applicant was a matter for the Tribunal's determination.” In context, the Court found that the Tribunal had considered the applicant's claim but did not believe it. The reasons do not indicate that the Court reheard the protection claim or independently decided whether the applicant had been persecuted.
At [13], the judge concluded that there was no basis to find the decision was not a bona fide exercise of power, that it related to the Act, and that it was referable to the Tribunal's authority. She added: “No ‘inviolable procedure’ can be identified with which the Tribunal failed to comply.” Put simply, the arguments and material presented did not demonstrate the kind of procedural failure that, under the approach described in [9], could displace the privative clause's effect.
At [16], the Court explained that the documents tendered at the hearing were not relevant to the judicial review proceeding because they had not been before the Tribunal. This illustrates the distinction made in the reasons between material available to the original decision-maker and documents produced later in court. The judge's additional comment about the documents' potential weight was tentative, not a finding that the Tribunal had assessed them.
The judgment is most directly relevant to a judicial review application concerning a Tribunal decision that is a “privative clause decision” under s 474(1), where the applicant alleges error but does not identify particulars showing that the decision fell outside the Hickman conditions or breached an identified inviolable procedure ([6]-[9], [13]).
It also addresses claims that a Tribunal ignored evidence, was biased, failed to consider a claim, or should have investigated events overseas. In this case, those claims were either unparticularised, unsupported by the material, inconsistent with the Tribunal's reasons, or based on an asserted investigation duty the judge rejected ([11]-[12]). The judgment's significance in any other matter depends on its facts and the applicable legal sources; it should not be treated as deciding every allegation of bias, evidentiary error, or failure to investigate.
A further fact pattern addressed is where documents are first tendered in the reviewing court, after the Tribunal has made its decision. The Court held that the two documents in this case were irrelevant because they were not before the Tribunal ([14]-[16]). The judgment does not decide what treatment different evidence might receive under a different procedure or legal basis.
The circumstances of the applicant's representation are part of the context, but the Court did not decide a separate legal issue about the person who may have prepared his submissions. Branson J recorded concern about possible exploitation, while expressly stating she could not take that matter further ([3]-[4]). That observation should not be converted into a finding of misconduct by any identified person.
The supplied judgment identifies and applies NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, delivered on 15 August 2002. Branson J described the Full Court's members as sharing broad positions on the character of s 474(1), the relevance of the Hickman approach, and the possibility that a clearly stated procedural precondition could override the clause's general effect ([7]-[9]). In relation to Nalu, the judgment itself is evidence of the immediate application of that approach by a single Federal Court judge.
The materials supplied contain no later judgments discussing, following, distinguishing, overruling, or otherwise treating Nalu. Nor do they provide later statutory amendments or subsequent appellate history. It is therefore not possible, on the supplied source alone, to state how later courts treated this decision or whether the legal approach described in it remained authoritative. Any account of later treatment would require additional legal sources beyond the judgment provided.
The reasons do not decide the merits of the applicant's underlying protection claim. The Court was reviewing the Tribunal's decision and found no basis on the material presented to disturb it. The judgment does not make an independent finding about the applicant's risk of persecution in India.
The decision also leaves the content and application of any “inviolable procedure” dependent on a case where a particular procedure is identified and its statutory status can be examined. Here, no such procedure was identified as having been breached ([9], [13]). The judgment does not specify how a different alleged procedural failure would have interacted with s 474(1).
The Court did not assess the underlying reliability of the two Indian documents. It held that they were irrelevant to this review because the Tribunal had not seen them, and then gave a conditional observation that their opinions might have received little weight if the documents had been before the Tribunal ([16]). The reasons do not establish whether their contents were true or whether they could have affected a different decision-making process.
Finally, the judgment does not establish later developments in the law governing privative clauses or later treatment of its reasoning. That is an important limitation when using a 2002 first-instance decision as a source for present-day legal analysis.
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REASONS FOR JUDGMENT 1 By an application dated 20 June 2002 the applicant has sought, in effect, judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal, by a decision handed down on 23 May 2002, affirmed a decision of a delegate of the Minister not to grant a protection visa to the applicant. 2 The applicant is a citizen of India. He appeared before the Court without legal representation but assisted by a Hindi/English interpreter. He appears to speak little English. 3 It is apparent that the application and the written submissions provided to the Court by the applicant were drawn by someone other than the applicant. They contain limited references to the decision of the Tribunal in the applicant's case. They contain references to legal authorities and texts with which the applicant could not be expected to be familiar. The written submissions, although dated 20 August 2002, contain no reference to the crucial decision of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 delivered on 15 August 2002. 4 I am confident that the applicant came to Court not knowing the content of his application or the document which purports to be his submissions to the Court. As the submissions document was sent to the Court by facsimile transmission from a number which appears to be that of an accounting firm there is, it seems to me, some reason for concern that a vulnerable person may have been exploited by an individual purporting to have qualifications that he or she does not have. However, this is not a matter which I am in a position to take further. 5 The applicant arrived in Australia on 30 January 2000 on an Indian passport. At that time he held a temporary business visa which was valid for multiple entries until 15 May 2000. He claims to be a member of the Muslim League and subject to persecution in India. However, the Tribunal found that his claims were "vague, generalised and generic". It did not accept the veracity of his claims and was not satisfied that the applicant was the subject of persecution for his religious or political activities in India. Consequently the Tribunal was not satisfied that the applicant has a well‑founded fear of persecution in India by reason of his religious or political opinion. It concluded that he did not satisfy the criterion set out in s 36(2) of the Migration Act 1958 (Cth) ("the Act") for a protection visa. 6 The decision of the Tribunal is a "privative clause decision" within the meaning of s 474(1) of the Act. Section 474(1) provides: "(1) 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." 7 Section 474(1) does not mean what it says; nonetheless it leaves little scope for judicial review (NAAV v Minister for Immigration & Multicultural & Indigenous Affairs per Black CJ, Beaumont and von Doussa JJ, Wilcox and French JJ dissenting). 8 All members of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs regarded s 474(1) as a clause of the kind considered by the High Court in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 ("R v Hickman") and other cases. In R v Hickman, Dixon J observed at 615: "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 bona 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." 9 The members of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs were also in broad agreement that, as a matter of construction, a provision which disclosed a clear legislative intent that the observance of a particular procedure was a precondition for the making of a valid decision might override the intention otherwise to be discerned from s 474(1). 10 The document which purports to be the applicant's submissions asserts that: "[t]he Tribunal's ignoring of relevant evidence and its finding in the face of contradicting independent evidence which indicates actual bias constitute jurisdictional error being a breach of procedural fairness which is an essential condition of the exercise of the decision making power … ." 11 No particulars of the relevant evidence allegedly ignored by the Tribunal are provided nor are particulars provided of the "contradicting independent evidence". The material before the Court provides no support for the assertion that the Tribunal was actually biased against the applicant. The applicant made no oral submission that the Tribunal displayed actual bias. The issue of alleged bias need not be further considered. 12 The document which purports to be the applicant's written submissions further asserts that "the authority has not considered applicant's claims …" and that "[t]he RRT has failed to investigate the applicant's claims, specifically the grounds of persecution, in India". If this latter assertion is intended to constitute a complaint that the Tribunal did not carry out investigation in India, it is sufficient to say that the Tribunal was under no such obligation. Even if this possible interpretation of the latter assertion is put to one side, the assertions find no support in the reasons for decision of the Tribunal. The Tribunal gave consideration to the applicant's claim to have been subjected to persecution in India but did not accept the veracity of the claim. The credibility of the applicant was a matter for the Tribunal's determination. 13 The material before the Court discloses no basis for a conclusion that the decision of the Tribunal is not a bona fide attempt to exercise the power vested in the Tribunal. The decision plainly relates to the subject matter of the Act and it is referable to the power given to the Tribunal. No "inviolable procedure" can be identified with which the Tribunal failed to comply (see R v Coldham; Ex parte The Australian Workers' Union (1983) 153 CLR 415). 14 At the hearing before the Court the applicant tendered two documents which were received in evidence subject to the respondent's objection to their relevance. The first is a document dated 20 July 2002 on the letterhead of the Indian Union Muslim League Ward No.‑6, Calcutta. Its content is as follows: "[the applicant] It is to inform you that WARRANT FOR ARREST has been issuded [sic] in your name by the Police Authorities and the Intelligence Branch are searching for you. Secondly, the confrontation between the BJP and Muslim League is going on and the situation is very sensitive. It is advisable to you, that you should'nt [sic] come here at this moment because you will be surely implicated into many criminal proceedings and you will put into awkward position." 15 The second document, which bears a notarial stamp, is dated 16 July 2002 and headed "REPORT". It refers to searches conducted at: "the Court of Civil Judges at Alipore, Sealdah, Howrah, Uluberia and in the City Civil Court at Kolkata and Warrant Registers at Judicial Magistrate Court, CMM's Court at Kolkata, relating to cases, proceedings and suits pending in the name of [the applicant]."
After identifying certain cases pending in the name of the applicant, the report concludes:
"From the Records and on investigation it appears that [the applicant] has been implemented in different cases on false grounds and most of it is politically motivated as he was not present during filing of the most cases. It also appears during investigation that some persons so to gain the situation unlawfully are planning to implicate him in different cases with a malafide intention and object to harass him and to put him to exceptional hardships, troubles and miseries to his life or even get him arrested on false cases and proceedings. It is being suggested that [the applicant] should not visit his place at Kolkata for some time in order to avoid from being implicated in various false cases under section of IPC code and CPC code.. That the foregoing startements [sic] are true to the best of my knowledge and belief" 16 Neither of the above documents was before the Tribunal. The respondent's submission that they have no relevance in this proceeding must therefore be upheld. I note, however, that even if the documents had been brought into existence earlier and placed before the Tribunal, it seems unlikely that they would have provided much support to the applicant's case. Without being able to probe the bases upon which the respective authors of the documents expressed the opinions contained in them, the Tribunal would have been able to accord little weight to the opinions. 17 The application will be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.
Counsel for the Applicant: The applicant appeared in person
Solicitor for the Respondent: Blake Dawson Waldron
NALU of 2002
Minister for Immigration & Multicultural & Indigenous Affairs
The application was dismissed. The applicant was ordered to pay the respondent's costs.