//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2002] FCA 1288
Federal Court of Australia
2002-10-22
Emmett J
Original judgment source is linked above.
REASONS FOR DECISION 1 On 6 September 2002 I ordered that the application be dismissed and that the applicant pay the respondent's costs. However, I stayed those orders until 7 October 2002 and gave leave to the applicant to file and serve prior to 5 pm on that day any written submissions outlining any further material that would justify reconsideration of the matter. I ordered that, if the applicant filed any such submissions, the stay be extended until further order of the Court. I also gave the Minister leave to file submissions in response. 2 7 October 2002 was a public holiday in New South Wales. On 8 October 2002, the applicant filed further submissions. I have now considered those further submissions, together with submissions filed on behalf of the Minister. The Minister's submissions, in short, contend that the stay should cease to operate since there is no substance in any of the matters raised in further submissions filed on behalf of the applicant. 3 I indicated on 6 September 2000 that, on the material then before me, the application had no prospects of success and I gave my reasons for reaching that conclusion. Nevertheless, because there appeared to be some prospect of the applicant being able to obtain legal advice, I granted the stay to which I have referred. The further written submissions that were filed on 8 October 2002 were in fact prepared by Gilbert and Tobin, Solicitors and run to some thirty pages. They canvas a number of issues. 4 In the additional submissions, the applicant seeks to rely on an affidavit of Jane Louise Laity sworn 8 October 2002. The Minister opposes the reading of the affidavit. The affidavit deals with two subjects, being the transcription of recordings of the proceeding before the Tribunal and the preparation of a draft amended application which the applicant now seeks leave to file. 5 The Minister opposes the filing of an amended application on the grounds that no satisfactory explanation for the delay in seeking leave to file it has been given and that, in any event, there would be no utility in filing the amended application because the proceeding would still be doomed to failure. 6 On 26 July 2002, I had directed the applicant to file and serve any amended application on or by 15 August 2002. No amended application was filed and no leave was sought at the hearing on 6 September 2002 to file an amended application at that stage. The only basis now advanced on behalf of the applicant for the grant of leave is an assertion in Ms Laity's affidavit that, at some unspecified time, the applicant received assistance from a Mr Ignatius Assuzu in drafting an amended application and that he incorrectly assumed that the amended application had been filed. 7 The proposed amended application seeks the following relief: "A DECLARATION that the Federal Court of Australia has jurisdiction to review "privative clause decisions", as provided by s. 474 of the Migration Act 1958, for jurisdictional error and/or including denial of natural justice. A DECLARATION that s.474 of the Migration Act 1958, is invalid for being inconsistent with s. 75(v) of the Constitution to the extent that s. 474 precludes review of "privative clause decisions', by the Federal Court, for jurisdictional error and/or including denial of natural justice. A WRIT OF MANDAMUS directed to the Respondent ordering the Respondent, by himself or by other Member of the Refugee Review Tribunal, other than the Officer having made the decision under review, being a decision to refuse the Applicant on 25 June 2002 a protection visa and to determine the same according to law. A WRIT OF CERTIORARI directed to the Respondent and ordering the Respondent to reconsider the Applicant's protection visa, with regards to the said decision to refuse him on 25 June 2002." 8 The grounds stated in the document are as follows: "1. the decision-maker failed to make "a bona fide attempt to exercise its power". Particulars In the alternative, failed to recognise that the applicant continues to harbour protection fears in respect of the persecution he experienced in his native country. 2. The decision-maker was not acting in good faith in making the decision to refuse the applicant a protection visa on 25 June 2002. Particulars Having recognised and accepted the possibility that the applicant "was subjected to a degree of discrimination because of his cousin's activities". 3. Due to an administrative decision made by a Commonwealth officer where the ground for review is: (a) lack of reasonableness as to it's decision ("reasonableness review") (b) failure or constructive failure to comply with Migration Act 1958; or (c) denial of natural justice in respect of legislative procedure. Particulars As above." 9 In the absence of any satisfactory evidence of an explanation concerning the failure to file the document, I would be disposed to refuse leave. In any event, while grounds 1 and 2 appear to be an attempt to specify grounds that might fall within the principles as set by Dixon J in The King v Hickman ex parte Fox and Clinton (1945) 70 CLR 598, the particulars furnished do not indicate circumstances that could bring the case within those principles. Accordingly, I would refuse leave. 10 The applicant seeks to rely on the transcription of the recording of the proceeding before the Tribunal in support of his contentions that a reconsideration of the matter is justified. The applicant contends that the transcript demonstrates that: · no enquiry was undertaken of the applicant in respect of a claimed interview with an officer from a national security agency, · there was a failure to take into account the applicant's sur place claim on cumulative grounds; and · there was a failure by the Tribunal to ask relevant questions and undertake adequate inquiry.
For reasons that I shall give shortly, I do not consider that there is any substance in those claims. Accordingly, there is no utility in permitting the tender of the transcript. 11 The further written submissions filed on behalf of the applicant contend that I should set aside the orders that I have made dismissing the application with costs. They seek the following relief: "(b) a declaration that section 474 of the Act is invalid for being inconsistent with section 75(v) of the Constitution; (c) a declaration that the Tribunal made a jurisdictional error on the face of its decision made on 25 June 2002 in relation to the applicant; (d) if the declarations sought in paragraphs (b) and/or (c) are not made, an order staying the proceedings until such time as the High Court's decision is handed down in the matters of S134/2002 and S157/2002; (e) a declaration that the Tribunal made a fundamental error of law in failing to consider the Applicant's sur place claim based on his membership of a particular social group, namely "whistleblowers"; (f) further and in the alternative to orders (b), (c) and (d), a declaration that the Tribunal failed to exercise its powers in relation to the Applicant in good faith; (g) a writ of certiorari to quash the decision of the Tribunal made on 25 June 2002; (h) a writ of certiorari to quash the decision of the Tribunal to reconsider the Applicant's application for a Protection Visa under the Act according to law; (i) a writ of prohibition to restrain the same Tribunal member sitting as the Tribunal in relation to any application by the Applicant; and (j) a writ of prohibition to restrain the Respondent from removing the Applicant from the jurisdiction until the Applicant's claim for a Protection Visa is fully and finally resolved; and (k) costs." 12 The substantive grounds upon which the applicant seeks that relief may be summarised as follows: · s 474 of the Migration Act 1958 (Cth) ("the Act") is invalid as being inconsistent with s 75(v) of the Constitution to the extent that s 474 precluded a review of a privative clause decision by the Federal Court for jurisdictional error and for denial of natural justice; · the Tribunal's decision is infected with jurisdictional errors and breaches of procedural fairness; · the Tribunal's failure to consider the applicant's sur place claim, based on membership of a social group, amounts to a fundamental error of law and, accordingly, s 474 does not apply; · even if s 474 is valid, it could not preclude review by the Federal Court because the Tribunal did not make a bona fide attempt to exercise its power. 13 The applicant's contention that the Court should "stay its decision" pending the High Court's decision in two proceedings that are reserved before that Court is based on the proposition that, if the submissions made to the High Court in those proceedings were to be upheld, the Federal Court would have jurisdiction to review the decision of the Tribunal for jurisdictional error, notwithstanding the provisions of s 474 of the Act. 14 The applicant relies heavily on the way in which the Tribunal treated his sur place claim. The applicant characterised that claim as being based on his membership of a particular social group namely "whistleblowers". The essence of the contention is that the Tribunal did not make any finding as to the applicant's claim based on membership of such a group but only addressed his claims in the context of his political opinion and his ethnicity. 15 The Tribunal made findings concerning the applicant's knowledge of the matters in respect of which he claims to have been a "whistleblower". Thus, the Tribunal found that it was implausible that merchant seamen participating in a course such as that described by the applicant would be given secret or sensitive information about Iran's weapon trade. The Tribunal found that the information obtained by the applicant during his political and ideological course in Iran did not amount to secret information. The Tribunal did not accept that he was told state secrets or other sensitive information during that course. In the light of those findings that the applicant had no state secrets, he could not be said to be a "whistleblower" in respect of them. 16 In any event, there was no material before the Tribunal or before the Court to suggest that there is a defined social group in Iran that comprises "whistleblowers". Nor was there any evidence that such people face persecution in Iran. There was no material before the Tribunal that would suggest that a "whistleblower" such as the applicant claims to be would have a well-founded fear of persecution for a reason under the Convention relating to the Status of Refugees, 189 U.N.T.S. 150. I do not consider that the material referred to by the applicant demonstrates any jurisdictional error on the part of the Refugee Review Tribunal ("the Tribunal"). 17 The applicant has not articulated what "whistleblowing" activities he claims to have undertaken, assuming that he was able to demonstrate that there were state secrets in respect of which he could undertake such activities. In any event, the Tribunal's finding that the applicant had no secret state information would have made any inquiry pointless. 18 The proof of bad faith on the part of a decision maker such as the Tribunal necessitates proof of extreme circumstances. It s a serious allegation and should not be found lightly. Lack of bona fides requires conduct approaching dishonesty or that is in some way contrived or colourable. Merely reaching a wrong conclusion or making a mistake in the course of the decision-making process does not constitute a lack of bona fides. 19 The Tribunal made the decision in question after an examination of the applicant's claims. The findings made by the Tribunal were open to it on the evidence before it. I do not consider that the material before me gives rise to any suggestion that the Tribunal acted dishonestly or for an improper purpose or that its consideration of the applicant's claims was contrived or colourable. The material before me indicates simply that the Tribunal was not persuaded by the applicant's claims. That is not to say that a Tribunal differently constituted would necessarily have reached the same conclusion. However, the fact that there may be cogent arguments in support of a different conclusion does not, in the absence of something more, indicate a lack of good faith. 20 I have already indicated my conclusion that the decision of the Tribunal is a privative clause decision within the meaning of s 474(2) of the Act. The constitutional arguments advanced by the applicant concerning the invalidity of s 474 were considered and disposed of by the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. I am bound by that determination. The fact that the constitutional validity of s 474 of the Act has been called into question in a proceeding before the High Court is not a reason for delaying the final disposition of this proceeding. The foregoing indicates that, even if the High Court were to determine that s 474 of the Act were invalid, and review were permissible, no reviewable error is found. Under those circumstances, I do not consider that it is appropriate to extend the stay that I have granted pending the decision of the High Court in the proceedings to which the applicant refers. 21 In the circumstances, I am not persuaded that there should be any further hearing of the applicant's claims in this proceeding. I consider that the stay that I ordered on 6 September 2002 should cease to operate forthwith. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.
Solicitor for the Applicant: Ms K. Watts of Gilbert + Tobin
NANG of 2002
Minister for Immigration & Multicultural & Indigenous Affairs
(1945) 70 CLR 598