SAAA v Minister for Immigration & Multicultural & Indigenous Affairs

PART 8 OF THE ACT 4 The Court has jurisdiction under s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act) to address decisions of the Tribunal in certain circumstances. The respondent accepts that. It is a position which is recognised by s 475A of the Act, at least in respect of decisions of the Tribunal under Pt 7 of the Act. Section 475A relevantly provides: "Section 476 does not affect the jurisdiction of the Federal Court under s 39B … of the Judiciary Act 1903 … in relation to: (a) a privative clause decision that is a decision made on a review by a Tribunal under Pt 5 or 7 or s 500; or (b) any other decision in respect of which the court's jurisdiction is not excluded by s 476." Section 476 excludes the jurisdiction of the Court in relation to certain "privative" decisions which it specifies. A decision of the Tribunal refusing to grant a protection visa to an applicant is not a decision to which s 476 refers. Part 7 of the Act deals generally with the review of protection visa decisions by the Tribunal. 5 Subject to the matters discussed below, which for the purposes of this application are not necessary to resolve, it is clear that the decision of the Tribunal of 24 September 2001 is a "privative clause decision" as defined in s 474(2) of the Act. It is defined in the following way: "Privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subs (4) or (5). The decision of the Tribunal is a decision of an administrative character. It was made under the Act. Section 414 obliged the Tribunal to review the decision of the delegate of the respondent of 31 May 2001, and s 415(2)(a) empowered the Tribunal to affirm that decision. The decision is not one excluded by the specific exclusions identified by s 474(4) of the Act, nor so far as the Court is aware or was informed by the respondent is the decision included in a class of decisions, specified under the Act or under regulations or another instrument under the Act as not being a privative clause decision. 6 Although the Court has jurisdiction under s 39B of the Judiciary Act to review the decision of the Tribunal, the grounds upon which it may do so are limited. Section 474(1) of the Act provides: "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." Despite s 475A recognising the continued jurisdiction of the Court under s 39B of the Judiciary Act, s 475 of the Act, which is in the same division as s 475A expressly provides that the division is not to be taken to limit the scope or operation of s 474. 7 Despite the literal breadth of the wording of s 474, the respondent acknowledges that it cannot operate fully according to those terms. The reason why that acknowledgment is made appears from the judgment of Dixon J in R v Hickman; Ex parte Fox v Clinton (1945) 70 CLR 598 at 616 (Hickman): "It is, of course, quite impossible for the Parliament to give power to any judicial or other authority which goes beyond the subject matter of the legislative power conferred by the Constitution. … It is equally impossible for the legislature to impose limits upon the quasi-judicial authority of a body which it sets up with the intention that any excess of that authority means invalidity, and yet, at the same time, to deprive this Court of authority to restrain the invalid action of the court or body by prohibition. But where the legislature confers authority subject to limitations, and at the same time enacts [a privative clause] 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 [in this case] means that any decision given by a Local Reference Board which upon its face appears to be within power and is in fact a bona fide attempt to act in the course of its authority, shall not be regarded as invalid." 8 The Act contains legislative direction to the Tribunal as to how it should exercise its powers. Division 3 of Pt 7 of the Act includes s 420 which obliges the Tribunal, in carrying out its functions under the Act, to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. It also provides that the Tribunal must act according to substantial justice and the merits of the case. The characterisation of the nature of that obligation was considered by the High Court in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611. Division 4 of Pt 7 of the Act contains more detailed legislative prescriptions as to how the Tribunal is to conduct its review. Section 424 empowers the Tribunal to procure information which it considers relevant, and to invite a person to give additional information. Section 424A then obliges the Tribunal in certain circumstances to give to an applicant for review the opportunity to consider and comment upon information which it has considered or which it has procured from another person. Section 424B appears designed to ensure that the opportunity to respond to a request for information is given in a meaningful way and with an understanding of the significance of the material which is to be the subject of comment. Section 425 obliges the Tribunal to invite an applicant to attend to give evidence and to present arguments relating to the decision under review. When a visa applicant seeking review before the Tribunal is notified of that invitation, under s 425A, the Tribunal must also inform the applicant that the applicant may then request the Tribunal to obtain oral evidence from a person or persons identified by the applicant, and the Tribunal must have regard to the applicant's wishes in conducting the review: see s 426. 9 The respondent contends that, upon the proper construction of the Act, the operation of s 474 means that any particular failure of the Tribunal to comply with such legislative prescriptions does not give rise to a power on the part of the Court to make an order quashing the decision of the Tribunal, or declaring it to have been made improperly, or remitting the matter to the Tribunal for re-consideration. He accepts that contravention of such legislative prescriptions, or one of them, may constitute evidence from which it might be inferred, in all the circumstances, and in an appropriate case, that the Tribunal has not made a bona fide or honest attempt to deal with the application before it and to act in pursuance of its powers. In that event, the decision of the Tribunal would be amenable to the jurisdiction of the Court to determine it to have been invalid, in accordance with the decision of Dixon J in Hickman. He also accepts that the approach to construction of the Act, and in particular the effect of s 474 as a privative clause, is that described by Dixon J in R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 399-400. His Honour there said: "We are familiar with the distinction between provisions that are directory and those that are mandatory. The distinction supplies an analogy which may help to explain the effect of [the relevant privative clause]. For construed in the traditional manner it must be taken to mean that strict compliance with at least some of the provisions [regulating the conduct of the relevant Board] is not an indispensable condition to the jurisdiction of the Board and to its authority to make a valid and binding award order or determination. 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 [the privative clause] 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 [the relevant privative clause] 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 [a privative clause]." 10 Consequently, the respondent contends that in this matter, the applicant may impugn the decision of the Tribunal because of the provisions of s 475 of the Act only if one of three conditions is established. The first is that the constitutional authority of the Parliament to define the powers of the Tribunal has been exceeded. That has not been suggested in this matter. The second alternative is that it must be shown that the exercise of the power was unrelated to the subject matter of the legislation. Again, that has not been suggested in relation to this matter. It is clear that the Tribunal was dealing with a decision to refuse a protection visa, and that it was empowered and obliged by the Act to do so. The decision of the delegate of the respondent to refuse the visa was reviewable by the Tribunal under s 411 of the Act, and s 414 of the Act obliged the Tribunal to review that decision. The third alternative is to show that the decision made was, on its face, beyond power or that it was not a bona fide attempt to act in the course of the Tribunal's authority. That is not asserted in this case, and there is nothing in the material before the Court which suggests that the Tribunal's exercise of its function was not a bona fide attempt to act in the course of its authority. 11 The applicant was not represented at the hearing before the Court, although he has a solicitor on the record. He did not attempt to put any submissions on the proper construction of Pt 8 of the Act. It is entirely understandable that he should not have done so, given his circumstances. 12 I accept that the first step required by Dixon J in Ex parte Proctor requires the Court to address the three conditions to which the respondent made submissions. For the reasons I have indicated, I do not think any of those conditions are made out. 13 The question of the inter-relationship of s 474 and the specific legislative prescriptions particularly in Division 4 of Pt 7 of the Act referred to above, is a matter of construction. It is the "second step" referred to by Dixon J in Proctor. It is also a matter to which Merkel J made reference in Walton v Philip Ruddock, The Minister for Immigration & Multicultural Affairs [2001] FCA 1839 (Walton). In that case, when addressing the effect of s 474 of the Act, his Honour referred to the Hickman principle and concluded that reference by quoting (at [33]) a passage from the judgment of Gleeson CJ and McHugh J in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 536-537 as to why a privative clause such as s 474 cannot cut down judicial review under s 75(v) of the Constitution of decisions of Commonwealth officers which involve jurisdictional error: "… the decisions of Commonwealth officers - and members of the Tribunal are such officers - cannot be limited by any law of the Parliament. Laws of the Parliament, made under an appropriate head of constitutional power, may take the conduct of Commonwealth officers outside the scope of the jurisdiction of this Court under s 75(v). Such laws may do so, for example, by making unlawful conduct which would otherwise be unlawful at common law or under State legislation or even under other federal legislation. But once a question arises as to whether a Commonwealth officer has acted lawfully or within or outside the jurisdiction conferred upon him or her, no law of the Parliament can curtail the jurisdiction of this Court to decide the issue, a jurisdiction which the Constitution has conferred on this Court to protect the people of the Commonwealth and the individual States from excesses of Commonwealth power." His Honour did not need to decide in that case whether a failure to comply with Division 4 of Pt 7 of the Act would constitute jurisdictional error on the part of the Tribunal. 14 Discussion of jurisdictional error on the part of the Tribunal has been addressed recently in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 per McHugh J at [29] - [31] (Durairajasingham), in Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34 per Kirby J at [10] and in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 per McHugh, Gummow and Hayne JJ at 22. In the light of s 474, it may well be that, as the respondent contends, the question now is not simply whether the exercise of power in the particular circumstances was beyond power, but whether despite the general terms of the privative clause, compliance with the obligation in question must have been intended to be an essential pre-condition to the exercise of power. Recent decisions of the High Court concerning the scope of operation of privative clauses include R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415; O'Toole v Charles David Pty Ltd (1991) 171 CLR 232; Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168; and Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 (Darling Casino). 15 I note also that, in Walton, Merkel J considered, but did not decide, whether a failure to comply with the rules of natural justice by the Tribunal would amount to the Tribunal acting in excess of jurisdiction so that, notwithstanding the provisions of s 474, such a failure would entitle the Court to exercise its powers under s 39B of the Judiciary Act: see [34] - [37] and the discussion in Aronson & Dyer, Judicial Review of Administrative Action, 2 ed at 693-694. His Honour also discussed the expression in s 474(2) of the Act defining "privative clause decision" as being a decision under the Act. In Darling Casino, Gaudron and Gummow JJ at 635 noted that the privative clause there under consideration concerned "a decision of the authority under this Act" and observed that: "The phrase is not 'under or purporting to be under this Act'". As Merkel J pointed out in Walton at [41], the issue of whether an invalid decision purportedly made under an enactment is a decision made "under" the enactment is ultimately a question of statutory construction having regard to the nature and objects of the enactment in question, and of course to the terms of the enactment itself. 16 His Honour said at [44]: "Plainly the precise ambit of the definition of a privative clause decision will need to be considered in the context of the particular decision under challenge and the ground of invalidity relied upon by an applicant in seeking judicial review of that decision." His Honour concluded at [46]: "It is clear that the operation of s 474, in the context of s 75(v) of the Constitution and the highly prescriptive regime contained in the Act in relation to visa decisions will remain a vexed and difficult question with no simple or short answer: see for example Campbell "An examination of the provisions of the Migration Legislation Amendment Bill (No 4) 1997 purporting to limit judicial review" (1998) 5 Australian Journal of Administrative Law 135; Kirk "Administrative Justice and the Australian Constitution" [1999] Papers of the National Administrative Law Conference of the Australian Institute of Administrative Law 78; Aronson & Dyer Judicial Review of Administrative Action (2nd ed) (2000) at 689-696." 17 The respondent contends that in the case at bar no error of law can be identified in the Tribunal's reasons, nor any breach of a legal requirement imposed upon it as to the means by which it went about its decision making process, far less a breach of a legal requirement that is essential for the validity of its decision notwithstanding the provisions of s 474. If it be the case that no error of law is established, and no breach of a legal requirement imposed by the Act made out, it will not be necessary to address the difficult and complex questions to which Merkel J adverted in the course of his Honour's reasons in Walton.

GROUNDS OF REVIEW 22 The applicant, in his application of 3 October 2001, did not identify any grounds of review referrable to an error of law or to any failure on the part of the Tribunal to comply with any provision of the Act. His complaint was that the Tribunal had rejected his claim "without any logical or evidently [sic] proof." Apart from repeating in general terms his claims as they had been made to the Tribunal, he described the Tribunal decision as "very strict unfair proceedings". He lodged a statement with his application headed "affidavit", but it did not add anything to that picture. 23 Subsequently, the applicant submitted a more detailed document to the Court on 6 November 2001. It sought more specifically to identify error on the part of the Tribunal. It referred to five matters. The applicant was also given an opportunity at the hearing to explain any further matters which might indicate error on the part of the Tribunal of a reviewable nature. His oral contentions repeated the matters referred to in that document, and his claims generally as made to the Tribunal. I did not discern from those submissions any fresh claim of error on the part of the Tribunal. I shall refer to each of the five matters to which the applicant dealt in some detail either in his document of 6 November 2001 or as expanded in his oral submissions at the hearing. 24 He complained that the Tribunal had taken no notice of information which he had provided to the Tribunal of a particular occasion when the Taliban took seven young men from his village. It is correct that, in the Findings and Reasons section of the Tribunal's decision, it does not specifically refer to the information which the applicant had provided on that topic. However, in reciting the applicant's claims, the Tribunal specifically referred to the applicant's evidence that the Taliban had arrested seven Hezb-i-Wahdat supporters in the applicant's village, and that they had been taken away and not been seen since. He said that occasion occurred soon after the Taliban first took control of his area. 25 It is not obligatory on the part of the Tribunal to refer in the Findings and Reasons section of its decision (a section which appears in many Tribunal decisions) or when expressing its findings and reasons, to each of the pieces of information which the applicant has referred to it: see Durairajasingham at [64] - [65]. The fact that the Tribunal had not referred to particular pieces of information in the course of expressing its findings and reasons does not mean that it has taken no notice of that information. In this particular case, the Tribunal has specifically referred to that evidence on the part of the applicant. I am not prepared, in that circumstance, to conclude that the Tribunal erred in some reviewable way by not referring to that material when expressing its findings and reasons. 26 A similar complaint is made, albeit in more general terms, in respect of the Tribunal's treatment of the applicant's evidence as to how he was able to avoid capture by the Taliban. That is dealt with in the lengthy passage referred to above. The essence of the applicant's complaint is that he should not have been disbelieved on the basis identified, and that his evidence was not "incongruous", as the Tribunal described it. 27 The Tribunal's reasons record that the applicant was asked specifically how he hid in the mountains, including particularly during the winter months. His answers are not said to be recorded inaccurately. The observations of the Tribunal as to the incongruity of those answers are a matter for it. It is not for the Court to agree or disagree about such observations. I do not consider that they demonstrate reviewable error on the part of the Tribunal. 28 The applicant also contended that the Tribunal had inappropriately placed weight on his evidence concerning his experience with the USSR. I do not think that his concern gives rise to any reviewable error on the part of the Tribunal in the way in which it treated that evidence. It is not suggested that that part of the reasons of the Tribunal for regarding his evidence concerning the conflict between the USSR and Afghanistan as unreliable were not accurately recorded. Earlier in its decision, the Tribunal recites its process of asking questions of the applicant concerning those matters. Again, in my view, no reviewable error is demonstrated in that process. 29 The applicant also complained of the use to which the Tribunal had put a linguistic analysis report concerning him. The delegate of the respondent had procured, and had provided to the applicant through his advisers, a linguistic analysis report dated 8 May 2001. It was based upon a recording of one of his early interviews with an officer of the respondent. The conclusion of that linguist was that the dialect/language variant occurring in that recording originated from Quetta in Pakistan. The conclusion was expressed "with considerable certainty". The applicant has, however, misconceived the use to which the Tribunal put that document. In its reasons for decision, it observed: "In the absence of evidence about the experience and qualifications of the author of the report on the applicant's spoken language, I have not accepted that report as a specialist or authoritative analysis of the applicant's language. I have therefore not accepted the conclusion of the report to the effect that the applicant was from Quetta, Pakistan." That conclusion reflects submissions put to the Tribunal on the applicant's behalf. Clearly, the Tribunal placed no weight upon that document. It has not shown to have committed reviewable error in that regard. 30 Finally, the applicant referred to how the Tribunal had dealt with the applicant's evidence about his observations of 15 - 30 Taliban visiting his village and the frequency of Taliban visits. He again complained that the Tribunal had placed inappropriate weight upon that matter. In my view, that is largely again a matter for judgment of the Tribunal. It has recorded in its reasons for decision the applicant's evidence on that topic, including his responses to its questions as to why such a large group of Taliban would visit such a small village, and as to the need for the frequency of visits for which the applicant told the Tribunal occurred. 31 In the course of that contention, in his written document, the applicant asserted: "… I have a witness who got his visa and he nows [sic] about me very well and I filled up the witness form for the RRT and they didn't ask about my witness." In his oral submissions, the applicant claimed that the witness nominated by him was overlooked as a potential witness by the Tribunal, and that that indicated that the Tribunal did not take his claims seriously. 32 The hearing before the Tribunal took place on 11 September 2001. The applicant was sent an appropriate invitation to attend the hearing on 22 August 2001, in accordance with s 425 of the Act. In accordance with s 426(2), that invitation included inviting the applicant to indicate whether he wanted the Tribunal to take evidence from any other witnesses. The applicant responded on 22 August 2001 indicating that he wished the Tribunal to take evidence from a named person whose evidence he said would be to the following effect: "He is living in neighbour village. He know me. He is accepted from Honourable Court of RRT as a refugee - (Afghani)." That form asks also the whereabouts of the witness. The applicant on the form indicated that the witness was not in immigration detention, but was in Australia, and in response to the question: "Where?" he answered: "Nil". The applicant's immigration agent also responded to the Tribunal's invitation on behalf of the applicant by letter dated 28 August 2001. That response included a copy of the same form. That letter indicated that the applicant's migration agent was aware of the request that the witness be called. It said: "Our client has given no details as to where the witness is to be located. We have asked him to advise us so we can advise the Tribunal accordingly." At the hearing, a form is apparently prepared which includes details of the persons who attend or are to attend. That form is in the material before the Court. It is a pro forma document, with the details relating to the particular hearing to be inserted. The form in question had keyed into the appropriate section for witnesses the name of the witness nominated by the applicant. Certain of the information so inserted in that form has been deleted by hand entry and other information handwritten on the form. The apparent alterations include information apparently recorded as the hearing takes place, such as the times of the hearing. The proposed witness was identified as a witness to be a person in attendance, by his name being keyed onto that form. It has been crossed out by hand entry. It is common ground that he did not attend the hearing. Clearly, if he had attended, his evidence would have been directly relevant to the Tribunal's determination. Whether, in result, it would have made a difference to the outcome of the application is a matter of speculation. 33 Section 426(3) of the Act provides: "If the Tribunal is notified by an applicant under subs (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice." On the material before the Court, I am not persuaded that the Tribunal failed to comply with s 426(3) of the Act. Its reasons do not refer to the absence of that witness. However, it is not necessary that they do so in all circumstances. It is apparent from its own records that it expected that witness to be available at the hearing, and that it had no knowledge or information provided to it by the applicant as to the whereabouts of that witness. The inference which I draw is that the Tribunal did have regard to the applicant's wishes that he wanted the Tribunal to obtain evidence from that witness. It is not itself obliged to procure the attendance of a nominated witness in all circumstances. In the present circumstances, I do not consider that it erred in a reviewable way in not procuring that proposed witness' attendance. It may have made some inquiries about his whereabouts, which are not revealed in the material before the Court. Even if it did not, in circumstances where the applicant's migration agent indicated that that agent was pursuing with the applicant the whereabouts of that witness, the Tribunal could have understood that the applicant or his migration agent would pursue inquiries as to that person's whereabouts and, in the absence of any further communication from the applicant or his migration agent, that the migration agent would take steps to have that person attend at the hearing, or alternatively, that he would notify the Tribunal of that person's whereabouts or the result of those inquiries so that the Tribunal could take the necessary steps. The applicant did not claim that any adjournment of the application was sought at the Tribunal, whilst the whereabouts of that witness were further pursued. He told me in the course of submissions that the issue of the availability of that witness, or his possible contribution to the evidence at the hearing, was not discussed in the hearing before the Tribunal at all. I do not, in those circumstances, consider that the Tribunal has failed to comply with s 426 of the Act. 34 Accordingly, in my view, the applicant has not demonstrated any matter in respect of which the Tribunal has exceeded its power, or has failed to comply with a provision of the Act concerning the way in which it went about its review, or has demonstrated any error of law on the part of the Tribunal. In those circumstances, it is unnecessary to consider the complex and interesting questions of law which may arise, and which are briefly adverted to above, as to the scope of operation of s 474 of the Act. It is a matter where, in my view, the effect of s 474 is to preclude the Court from further reviewing the application but in any event, even under the Act as it stood prior to 2 October 2001, I do not consider that the applicant would have made out a ground of review available to him under the provisions of s 476(1) of the Act as it then stood. 35 In my view the application should be dismissed. The applicant should pay to the respondent costs of the application. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

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