SDAN v Minister for Immigration and Multicultural and Indigenous Affairs

THE COURT: 1 Before the Court is an application for leave to amend the Notice of Appeal filed by the appellant. The appeal is from a decision of a Judge of the Court, who dismissed an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 26 February 2002, which affirmed a decision not to grant a protection visa to the appellant. 2 An appeal from the decision of the primary Judge was filed on 17 June 2002 but the grounds were expressed in generalised terms and the proposed amendment to the Notice of Appeal is in effect an application to substitute new grounds for those outlined in the initial Notice of Appeal. 3 The decision of the Tribunal is a privative clause decision within s 474 of the Migration Act 1958 (Cth) ("the Act") and the appellant, in order to succeed on judicial review, submits that the decision is not within the protection afforded by that section. 4 The two grounds sought to be relied on in the Amended Notice of Appeal are as follows: 1. The learned primary Judge erred in not finding jurisdictional error in so far as it has not been shown that the Secretary to the Department had given to the Registrar of the RRT each document considered by the Secretary to be relevant to the decision appealed from pursuant to s 418(3) of the Act. 2. The learned primary Judge erred in not finding that there had been an absence of a bona fide attempt on the part of the RRT to exercise power. Section 418(3) 5 The Court was provided with a Supplementary Appeal Book (the "SAB"), which included a copy of an extract from the decision of the delegate that lists the documentary evidence before the delegate. The SAB also contained a letter from the Tribunal to the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") dated 5 April 2002 which referred to the documents cited in the Tribunal decision and enclosed copies of those documents. That list of documents cited by the Tribunal does not include at least three documents found in the list of documents before the delegate. 6 The appellant submits, on the basis of the absence of citation of these documents, that there is no documentation which discloses what material relied on by the delegate, in reaching his decision, was given to the Tribunal pursuant to s 418(3) of the Act and that there has therefore been a failure to comply with s 418(3) as a consequence of which there has been a failure to exercise jurisdiction. 7 Section 418(3) of the Act reads as follows: "(3) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision." 8 As an evidentiary matter the material before the Court on this appeal does not establish that there has been a breach of s 418(3). Simply because some documents in evidence before the delegate were not cited by the Tribunal does not mean that the Secretary was in breach of the obligation imposed by s 418(3) or even that the documents were not conveyed. Accordingly, this argument fails for lack of any evidentiary basis. The circumstances are analogous to those before Sackville J in NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1237, where his Honour, at [29]-[30], after considering the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 605, 608, 611 and 629 said: "29 In the present case, the applicant has adduced no evidence to show that the Part B documents were not sent to the RRT. Nor is there any evidence to show that the Part B documents were not available to the RRT through electronic databases or libraries. The observations made by the RRT in its reasons do not assist the applicant on either of these questions. There is therefore no basis for finding that the Secretary contravened s 418(3) of the Migration Act. It is not necessary to consider whether a breach of s 418(3), considered independently of s 474(1) of the Migration Act, would constitute a jurisdictional error for the purposes of the relief available under s 39B(1) of the Judiciary Act. 30 If, contrary to my view, the RRT denied procedural fairness to the applicant, s 474(1) of the Migration Act prevents him relying on that denial as a basis for relief under s 39B(1) of the Judiciary Act. So much was decided by a majority of the Full Court in NAAV v Minister (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); NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294, at [17], per curiam." 9 Muin is distinguishable from the present case because in Muin it was agreed between the parties that certain relevant documents had not been conveyed by the Secretary. 10 Counsel for the appellant agreed, on this appeal, that as a consequence of the privative clause embodied in s 474 and the decision of the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 the appeal could not succeed on this point but noted that the validity and operation of s 474 is currently under consideration by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicants S 134/2002, which has been reserved for judgment.