SDAR v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant, a citizen of Albania, arrived in Australia and lodged an application for a protection visa on the ground that he has a well-founded fear of being persecuted for reasons of membership of a particular social group, being his family, if he returned to his country of nationality, Albania. A delegate of the respondent ("the Minister") decided not to grant a protection visa to the applicant and the Refugee Review Tribunal ("the RRT") affirmed the decision of the delegate. 2 The RRT accepted that the traditions followed in the area of Albania in which the applicant resided involved "blood feuds", the rules of which required a male member of one family to be killed as a matter of honour where a member of that family had been involved in the killing or shooting of a member of another family. Under the "blood feud" the family of the victim is to "take blood" by seeking revenge against any male relative on the other side. The RRT also accepted that the applicant's family in Albania became subjected to a "blood feud" after the applicant's cousin shot a member of another family. The RRT found that, as a consequence, the applicant could be killed if he returned to Albania. 3 In Minister for Immigration and Multicultural Affairs v Sarrazola (2001) 107 FCR 184 ("Sarrazola") a Full Court held, inter alia, that the sister of a person who was persecuted by criminals for failing to pay her brother's drug related debts may have a well-founded fear of persecution as a member of a particular social group, namely her family. In the present case the applicant was facing a threat of persecution as a male member of his family as a result of his cousin shooting a member of another family. On the basis of the decision of the Full Court in Sarrazola there were strong grounds for the applicant to contend that he had a well-founded fear of persecution by reason of his membership of a particular social group, being his family, as members of the other family were threatening to turn to him to "take blood" in the "blood feud". 4 However, the Migration Legislation Amendment Act (No 6) 2001 (Cth) amended the Migration Act 1958 (Cth) ("the Act") by, inter alia, enacting s 91S which provides: "For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person's family: (a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and (b) disregard any fear of persecution, or any persecution, that: (i) the first person has ever experienced; or (ii) any other member or former member (whether alive or dead)of the family has ever experienced; where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed." 5 The particular statutory context in which s 91S appears is as follows. Section 36 of the Act establishes a class of visas to be known as protection visas and provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol as defined in the Act ("the Refugees Convention"). 6 Australia has protection obligations under the Refugees Convention to a "refugee", who is defined in Art 1A(2) as meaning: "any person who…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country." 7 Section 91S requires that when the section applies, in determining whether a person has a well-founded fear of persecution for reason of membership of a particular social group that consists of the person's family, the matters set out in s 91S are to be disregarded. 8 The revised Explanatory Memorandum provided in respect of s 91S stated: "Section 91S Membership of a particular social group 30. This item inserts [a] new section 91S into the Act which deals with 'membership of a particular social group'. This proposed provision addresses a recent court finding that a relative of a person facing persecution for a non-Refugees Convention reason, such as pursuit by criminal elements for repayment of debts, is themselves facing persecution for the Convention ground of membership of a particular social group when the attentions of the agents of persecution turn to them, for example for repayments of the debts. This type of situation falls outside the range of grounds for persecution covered in the Refugees Convention. 31. New section 91S provides that certain matters must be disregarded in determining whether a particular person ('the first person') has a well-founded fear of persecution for the reason of membership of a particular social group that consists of the person's family. 32. The matters that must be disregarded are: · any fear of persecution or any persecution that any other family member (whether alive or dead) has ever experienced where that fear or persecution is not for a reason mentioned in Article 1A(2) of the Refugees Convention; and · any fear of persecution or any persecution that the first person has ever experienced or any other family member (whether alive or dead) has ever experienced where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear of persecution mentioned in the above point had never existed. 33. The above provisions do not prevent a family, per se, being a particular social group for the purpose of establishing a Convention reason for persecution. However, they prevent the family being used as a vehicle to bring with[in] the scope of the Convention persecution motivated for non-Convention reasons." 9 In the Second Reading Speech (House of Representatives, 28 August 2000, Hansard at 3422) the Minister explained s 91S as follows: "The legislation will also provide that to invoke protection the convention reason must be the essential and significant reason for the persecution. The convention was not designed to protect people who fear persecution for personal reasons that have little or nothing to do with the convention - for example, because they have failed to pay their family's debts. Yet a recent Federal Court case provides for this very scenario. The legislation will also prevent people from using elaborate constructs to claim that they are being persecution as a member of a family and thus under the convention ground of a particular social group when there is no convention related reason for the persecution. This will remove a potential avenue for criminal families to claim protection on the basis of gang wars - not those that the government would see as warranting international protection." 10 The RRT's reasons for decision, after referring to s 91S and the Explanatory Memorandum, stated: "Applying the above to the applicant's claims, in order to find that he has a well-founded fear of persecution the Tribunal must first be satisfied that his relative's fear of persecution by the [victim's] family is Convention-related. The Tribunal is not persuaded by the adviser's argumentation on this score. The adviser submitted that the applicant's fear of persecution does not derive from any fear held by any other member of his family. The Tribunal finds this is not so. It notes that the applicant's fear of persecution derives from the relative's persecution - and his fear thereof - by members of another family as, in accord with the Kanun, the persecutory behaviour was extended to all male members of the relative's family. The Tribunal notes the adviser's submission that the land dispute incident which gave rise to the incident was connected with the cousin's membership of the [applicant's] family and the [victim's] family membership. However, the Tribunal finds that it was not the dispute which gave rise to the cousin's feared persecution, but rather the cousin's actions, namely, the shooting. The cousin's fear arises out of an incident involving his violent attack on another person and that person's family seeking revenge for the cousin's actions. That is, the persecution of the applicant's relative is revenge-motivated and the Tribunal finds that in this case the revenge has no Convention connection. The effect of s.91S is that, having found the cousin's fear of persecution is not for a Convention reason, the Tribunal must disregard any fear of persecution on the part of the applicant for reason of membership of the family, as it is reasonable to conclude that the applicant's fear of persecution would not exist if it were assumed that his cousin's fear of persecution had never existed. As the applicant has not claimed to fear persecution on any other basis and disregarding the applicant's fear of persecution for reasons of membership of the particular social group of his family, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason if he returns." 11 The applicant has applied to the Court for an order to review the decision of the RRT under the Act and also for writs of prohibition and certiori and an injunction or declaration under s 39B of the Judiciary Act 1903 (Cth). Although a number of grounds were relied upon in the application senior counsel for the applicant advanced two main arguments in support of the applicant's claim for relief. The first argument was that the RRT wrongly interpreted s 91S which, so it is contended, does not prevent regard being had to the applicant's fear of being targeted for persecution by reason of his family membership as that fear is not derived from and is independent of the persecution or fear of persecution for a non-convention reason experienced by his cousin as another member of the family group. Rather, so it is said, the applicant's fear is for a Convention reason as the fear is based on evidence that the applicant will be targeted in his own right as a family member, rather than on evidence that his cousin will be targeted. The second argument was that, if the interpretation of s 91S by the RRT was correct, then the section inappropriately limited the definition of a refugee in Art 1A of the Refugees Convention, with the consequence that the enactment by the Commonwealth parliament of the Refugees Convention into Australian law is not supported by s 51(xxix), the external affairs power of the Commonwealth, or by any other head of power under the Constitution. 12 The Minister contended that the RRT correctly interpreted s 91S and that s 91S is amply supported by the "aliens" and "immigration" powers under ss 51(xix) and 51(xxvii) respectively (see SAAS v Minister for Immigration and Multicultural Affairs [2002] FCA 726 ("SAAS") at [48]-[51]) as well as the external affairs power under s 51(xxix). 13 A further issue arose in relation to the operation of s 474 of the Act, which relevantly 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. (2) In this section: 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 subsection (4) or (5). (3) A reference in this section to a decision includes a reference to the following: (a) granting, making, suspending, cancelling, revoking or refusing to make an order or determination; (b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa); (c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument; (d) imposing, or refusing to remove, a condition or restriction; (e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement; (f) retaining, or refusing to deliver up, an article; (g) doing or refusing to do any other act or thing; (h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation; (i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act; (j) a failure or refusal to make a decision. …" 14 It is common ground between the parties that the decision of the RRT is a privative clause decision but the parties were in dispute as to whether the judicial review of the decision sought by the applicant was precluded by s 474(1). Both parties relied upon the recent decision of the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 ("NAAV"). The applicant contended that the error of construction complained of constituted a fundamental error of law in relation to the question of whether the applicant was a person to whom Australia has protection obligations under s 36(1) of the Act which, when answered wrongly, was a jurisdictional error which was reviewable on the basis of the decision of the majority of judges: see NAAV per Chief Justice Black at [30]-[31], per Wilcox J at [365]-[366] and per French J at [579]. The Minister disputed the applicant's contention and said that the error of construction, even if established, was an error that related to the circumstances that were to be disregarded and was validated by s 474(1) on the basis of the decision of a majority of judges: see NAAV per Chief Justice Black at [4] and [15], per Beaumont J at [99] and [277] and per von Doussa J at [622]-[625]. 15 At the outset it is appropriate to consider whether the RRT erred in its construction of s 91S. Because the reason for the fear of persecution or persecution of the applicant's cousin was not a reason mentioned in Art 1A(2) of the Refugees Convention, s 91S(a) required the RRT to "disregard any fear of persecution, or any persecution" that the applicant's cousin had ever experienced. Section 91S(b) also required the RRT to "disregard any fear of persecution, or any persecution" that the applicant or any other member of the applicant's family has ever experienced where it is reasonable to conclude that the "fear or persecution" would not exist if it were assumed that the fear or persecution of the applicant's cousin had never existed. 16 The applicant contends that the RRT is only to disregard the fear of persecution or the persecution of the applicant's cousin. He contends that his fear of persecution or persecution is not based upon or derived from the fear of persecution or the persecution of his cousin and, accordingly, is not required to be disregarded. The applicant's argument, which draws a distinction between the fear of persecution and persecution and the reasons for the fear of persecution and the persecution, is that s 91S only requires that the fear or the persecution itself be disregarded and not the reasons for the fear or the persecution. Applying that construction to the facts of the present case the applicant contends that the RRT was required to disregard the fear of persecution and the persecution of the cousin and, in forming its view as to the applicant's fear of persecution or persecution, the RRT was to treat the applicant's cousin's fear and persecution as not existing. Thus, it is said that the RRT wrongly disregarded the applicant's fear of persecution by reason of being targeted directly, and in his own right, as a family member which Sarrazola held is a Convention reason. Accordingly, it is argued that as the applicant's fear of persecution is based on an implicit threat made to the applicant that he will be killed by reason of the blood feud, his fear of persecution is not derived from and is independent of his cousin's fear and s 91S does not require that the applicant's fear of persecution be disregarded. 17 The Minister contends that s 91S, properly construed, does not permit the distinction drawn by the applicant between the fear of persecution and persecution and the reasons for that fear and for that persecution. The Minister points to the introductory words of s 91S which link the fear of persecution and the reason for the fear being "membership of a particular social group that consists of the [applicant's] family" and contends that the subsequent references in the section to a fear of persecution and persecution relate to a fear of persecution and fear of persecution for that reason. Consequently, so it is argued, the fear of persecution or the persecution that is to be disregarded under the section is the fear and the persecution for the reason that the persons concerned are members of a particular family group. Accordingly, the Minister contends that s 91S(b) required the RRT to disregard the applicant's fear of persecution or persecution for reason of his membership of his family, because that fear or persecution would not exist if it were assumed that the applicant's cousin and the applicant did not have a fear of persecution because of their family membership. In other words the fear of persecution or persecution of each member of the family, for the reason that they are a member of the family and therefore threatened with persecution in that capacity by reason of the blood feud, is required to be disregarded. 18 There are substantial difficulties with the construction contended for by the applicant. The first is that both contextual and textual considerations strongly favour the Minister's construction. The contextual consideration is that s 91S, and indeed any fear of persecution for the purposes of the Refugees Convention, is inextricably linked to the reason for the fear of persecution and the persecution. Therefore, it is artificial to construe the concepts of fear of persecution and persecution for the purposes of the Refugees Convention as if they can be disassociated from the reasons for the fear or the persecution. The textual consideration is that the fear and persecution referred to in s 91S(a) and (b) is the fear and persecution for the reason referred to in the introductory words of s 91S, being that the fear is "for the reason of membership of a particular social group that consists of the [applicant's] family". 19 Purposive considerations also strongly support the Minister's construction. Those considerations, which can be gleaned from s 91S itself, are explained in the revised Explanatory Memorandum and the Minister's second reading speech which make it clear that the purpose or object of s 91S is to ensure that the circumstances considered in Sarrazola, which are analogous to the circumstances in the present case, are not capable of giving rise to a claim under the Refugees Convention of a fear of persecution by reason of membership of a family group. Thus, s 91S was intended to exclude from Art 1A a case where a family member claims persecution or a fear of persecution that arises as a result of the persecution or fear of persecution of another family member for a non-convention reason. Section 15AA of the Acts Interpretation Act 1901 (Cth) requires the Court to prefer a construction that would promote the purpose or object underlying the legislation to a construction that would not promote that purpose or object. Further, as Lord Diplock observed in "The Courts as Legislators" in The Lawyer and Justice (1978) at 274: "If…the Courts can identify the target of parliamentary legislation their proper function is to see that it is hit; not merely to record that it has been missed." 20 In my view s 15AA requires the Court to prefer the Minister's construction as it is consistent with the purpose and object of s 91S. If the Court preferred the applicant's construction it would be acting contrary to s 15AA and would merely be recording that the legislature had "missed its target". 21 Another major difficulty with the applicant's construction is that it would give little work for s 91S to do. Counsel for the applicant contended that the concept of derivative persecution does have a meaningful application. When pressed to provide an example of how derivative persecution works counsel could only refer to the following example: a husband may fear persecution for a non-convention reason and his wife may hold a fear of harm to her solely as a result of the likelihood of harm flowing to the husband. For example, she may be in his company or at home and therefore be exposed to the risk of harm when her husband is targeted for persecution. The applicant's case is that s 91S would require each fear to be disregarded. 22 The applicant's example only needs to be stated to realise how little work s 91S would have to do in relation to cases concerning the Refugees Convention. Indeed, I doubt that the example is within the Convention in any event as the wife's fear of persecution is not really a fear of persecution for the reason of being a member of the family group. Rather, it is a fear that she might be harmed whilst in the company of her husband or at the family home when he is being persecuted. The same fear might be held by others who are not members of the family group. 23 The Minister's construction only removes one aspect of family persecution from the protection of the Refugees Convention in Australia. Thus, while a fear of family persecution arising from or associated with persecution for a non-convention reason may be excluded, persecution threatened against family members as such, arising from or associated with persecution of one of the family members for a Convention reason (eg political, racial, religious or membership of a social group), may still constitute persecution of the other family members because of their membership of the persecuted family, as a particular social group. 24 It is my view that, properly construed, the fear of persecution and persecution referred to in s 91S is a fear and persecution for the reason that the person is a member of the particular family, another member of which fears persecution or has been or may be targeted for persecution for a non-convention reason. As a consequence of that non-convention fear or persecution, the fear or persecution of other family members by reason of their family membership is to be disregarded. Thus, where a family member's fear of persecution has arisen because another family member's criminal debts have not been paid, or because a blood feud has arisen from or been associated with the unlawful act of another family member, that fear of persecution and persecution is to be disregarded. 25 The RRT approached the construction of s 91S in accordance with the above principles and therefore did not err in law in its construction of s 91S. There is some force in the applicant's criticism of the RRT's finding that the applicant's fear "derives from" his cousin's persecution, as the RRT had accepted that the applicant was entitled to fear that he was threatened in his own right as a member of the cousin's family. However, in context, the RRT was merely stating that the applicant's fear for reason of his family membership was a fear derived from, in the sense that it "resulted from", his cousin's persecution. That finding, which was made in the context of the RRT's construction of s 91S, is not incorrect. 26 Finally, the RRT was criticised for assuming the applicant's cousin had a fear of persecution. The criticism is difficult to follow as the applicant's case was that all male family members were at risk of persecution. Plainly, it was open to the RRT to infer a fear of persecution and persecution of the applicant's cousin as a consequence of his role in causing the "blood feud". 27 I would add that if the RRT had erred in law in its construction of s 91S that would raise a real issue as to the applicability of s 474(1) and of the decision of the Full Court in NAAV. As I have concluded that there was no such error it is unnecessary to pursue the question of the operation of the privative clause in the present case. 28 Senior counsel for the applicant also put a detailed submission concerning the constitutional validity of s 91S. However, in SAAS Mansfield J rejected the same argument in relation to the validity of s 91R. 29 Mansfield J found that s 91R was amply supported by the "aliens" and the "immigration" powers. His Honour stated at paras [44]-[51]: "Characterisation of s 91R(3) and sufficient connection with alternative heads of power 44. Section 91R(3) operates to limit the circumstances in which the respondent may be satisfied that an applicant satisfies the criteria for the grant of a visa where a sur place claim is made. It does so by excluding from the respondent's consideration of the criterion expressed in s 36(2) of the Act and cl 866.221 of Sch 2 of the Regulations any conduct engaged in by the applicant that is engaged in for the purpose of strengthening the applicant's claim to be a refugee, and by placing the onus on the applicant to satisfy the respondent that such conduct was not engaged in for that purpose. The provision therefore operates to define the circumstances under which certain non-citizens should be granted a protection visa so as to be entitled to remain in Australia upon the conditions of the visa. Such a provision, in my judgment, has a sufficient connection with both the subject matters of 'aliens' and 'immigration' such as to be supported by either s 51(xix) or s 51(xxvii) of the Constitution. 45. The scope of the Commonwealth Parliament's power to enact laws with respect to aliens under s 51(xix) of the Constitution was considered by the High Court in Lim v Minister for Immigration (1992) 176 CLR 1 at 25-26 per Brennan, Deane and Dawson JJ: 'The legislative power conferred by s 51(xix) with respect to 'aliens' is expressed in unqualified terms. It prima facie encompasses the enactment of law with respect to non-citizens generally. It also prima facie encompasses the enactment of a law with respect to a particular category or class of non-citizens, such as non-citizens who are illegal entrants or non-citizens who are in Australia with having presented a visa or obtained an entry permit. Such a law may, without trespassing beyond the reach of the legislative power conferred by s 51(xix), either exclude the entry of non-citizens or a particular class of non-citizens into Australia or prescribe conditions upon which they may be permitted to enter and remain; and it may also provide for their expulsion or deportation'. 46. That passage should now be read in light of the recent decision of the High Court in R v Patterson; Ex parte Taylor (2001) 182 ALR 657 (Patterson) in which the majority Judges found that a non-citizen who had been absorbed into the Australian community (in that case a British subject resident in Australia for 25 years) was not an alien for the purposes of s 51(xix) of the Constitution: see per Gaudron J at 669-671, McHugh J at 683-690, Kirby J at 721-738 and Callinan J at 753-756. The effect of Patterson is that the status of 'alien' in a person is to be determined by the extent to which that person has become integrated as a member of the Australian community, and not exclusively by his or her non-citizenship. As such, the aliens power may not, as stated in Lim, encompass the enactment of laws with respect to all non-citizens generally. That qualification is not relevant in the present case. Nothing in Patterson suggests that the aliens power does not support the enactment of legislation prescribing the conditions upon which a non-citizen, not yet a member of the Australian community, should be permitted to enter or stay in Australia. Section 91R(3) is such a provision. 47. It is not to the point that the head of power under s 51(xix) of the Constitution might not entitle the Commonwealth to enact legislation which in terms adopts the Convention. It is not necessary to decide that question. Section 51(xix) does entitle the Commonwealth to enact legislation which determines whether non-citizens without visas may arrive and remain in Australia. The legislative device used in s 36(2) of prescribing a criterion for the grant of a protection visa by reference to the Convention is no more than that. Senior counsel for the applicant acknowledged that s 36(2) of the Act would be within s 51(xix) of the Constitution if it set out precisely the words of Art 1A(2) of the Convention without expressly referring to the Convention. The means by which that criterion is expressed is a matter for the Legislature. The use of a 'referential definition' (see Bennion, The Interpretation of Statutes, Sweet & Maxwell, 3ed, p 400-401) would, in my view, be equally within power. Indeed, if the Legislature chooses to specify a criterion for a grant of a visa by reference to some other instrument, that instrument need not be a convention ratified by the Executive. 48. The Legislature is also entitled to prescribe criteria for the grant of a visa of the class which it calls a protection visa: s 36(1) different from, or complementary to, the terms of the Convention. The ratification of the Convention by the Executive cannot circumscribe or limit the legislative power of the Commonwealth under s 51(xix) or generally under the Constitution. See e.g. per Latham CJ in Polites v Commonwealth (1945) 70 CLR 60 at 69; Horta v Commonwealth (1994) 181 CLR 183; and per Gummow J in Kartinyeri v Commonwealth (1998) 195 CLR 337 at 383-386. Section 36(2) should be, and has been, interpreted as far as its language permits consistently with the international obligations assumed by satisfaction of the Convention: Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J. But that principle does not circumscribe the legislative powers in s 51 of the Constitution. The criteria for the grant of a protection visa in the Regulations are, in my view, within power notwithstanding that they do not find expression in the Convention. To the extent to which s 91R(3) qualifies or restricts the criterion for the grant of a protection visa as expressed in s 36(2), in my view, it operates as a matter of domestic law to that extent. It is a provision which applies to a particular class of non-citizens, namely those who are in Australia who claim to be entitled to a protection visa. It operates to prescribe, in part, the conditions upon which a decision is to be made on whether a particular person has satisfied the criteria for the grant of a protection visa. It therefore has a relevant and sufficient connection with the subject matter of 'aliens' in s 51(xix) of the Constitution. Accordingly, in my judgment, to the extent that it applies to the applicant in the present case, the provision is supported by the aliens power enumerated in s 51(xix) of the Constitution and is therefore valid. 49. The scope of the power to enact laws with respect to immigration enumerated in s 51(xxvii) of the Constitution also supports the enactment of s 91R(3). The immigration power has been determined by the High Court to support legislation prescribing the conditions under which a person seeking to immigrate to Australia may be permitted (by the mechanism of a visa) to enter, temporarily reside, or permanently reside in the country. The scope of the immigration power was summarised by Dixon J in O'Keefe v Calwell (1949) 77 CLR 261 at 288: '…it seems impossible to do other than treat the power over immigration as relating to all movement of strangers into the Commonwealth independently of the intention of the persons who enter. So long as the new arrival is a stranger and not one of the people of Australia the legislature may deal with the question whether he enters and on what terms he enters or remains.' See also Ex parte De Braic (1974) 124 CLR 162 at 164 per Barwick CJ and R v Macfarlane; Ex parte O'Flanagan (1923) 32 CLR 518. 50. Once it is recognised that s 91R(3) operates to affect the rights, duties and privileges of aliens seeking to enter and remain in Australia - as is the applicant in the present case - it is clear that the provision is supported by both the immigration head of power and the aliens head of power which is, in any event, more expansive: see Cunliffe v Commonwealth (1994) 124 ALR 120 at 130. 51. Having found s 91R(3) to be a valid exercise of legislative power under either the aliens or immigration powers, it is unnecessary to consider the question of whether ss 36(2) and 91R(3) would be sustained by the external affairs power in s 51(xxix) of the Constitution. Unlike the Tasmanian Dams case and Victoria v Commonwealth, where the contested legislation could not have been supported by any head of power other than the power to enact laws with respect to external affairs, so that it was therefore critical to establish that the legislation was appropriate and adapted to the treaties they purported to enact into Australian domestic law, there are separate heads of power which support s 91R(3)." 30 Senior counsel for the applicant put a number of submissions as to why his Honour had erred in law. She was not able to cite any authority for her main proposition that if the enactment in question enacts obligations under an international convention it may only be supported by the external affairs of power, notwithstanding that the enactment might otherwise have been able to be supported by other heads of power. Indeed, the submission is inconsistent with decisions of the High Court: see for example Grain Pool of Western Australia v The Commonwealth of Australia (2001) 202 CLR 409 at 490 [7], 492 [16] and 514 [86]; Victoria v The Commonwealth (1996) 187 CLR 416 (Victoria v The Commonwealth") at 539 and Re F; Ex parte F (1986) 161 CLR 376 at 387-388. 31 It is unnecessary to set out the detail of the applicant's submissions as, as a single Judge of the Court, I would follow his Honour's decision in SAAS unless I am satisfied that it is clearly wrong: see Bank of Western Australia Limited v Commission of Taxation (1995) 55 FCR 233 at 255. In my view it cannot be said that his Honour's decision is clearly wrong. Rather, in my view, his Honour's decision is consistent with High Court authority and appears to be clearly correct. It is common ground that there is no material distinction between the constitutional argument concerning the "aliens" and the "immigration" power that could be presented in respect of s 91R and s 91S as each section operates to limit the circumstances in which an applicant may be determined to be a person to whom Australia has protection obligations and is therefore entitled to a protection visa. Accordingly, it follows that the applicant's constitutional argument must also fail, even if s 91S was found to be a modification to the Refugees Convention. 32 I would add that, in any event, the applicant's contention that s 91S is an "inappropriate limitation" on the operation of the Convention is incorrect. The validity of a law under s 51(xxix), which is not supported by any other head of power, "depends on whether its purpose or object is to implement the treaty": see Victoria v The Commonwealth at 487. Further, there is a real question as to whether the Act is concerned with enacting into municipal law the Refugees Convention, rather than focussing upon the Convention's definitions of persons to whom Australia has protection obligations as the main criterion for the operation of the protection visa system: see Minister for Immigration and Multicultural Affairs v Khawar (2002) 187 ALR 574 at 584 [45]. 33 Senior counsel for the applicant also put an argument based on a lack of bona fides on the part of the RRT. I am not satisfied that there was any lack of bona fides or that any of the other arguments put forward by the applicant have any substance upon it being concluded that the RRT did not err in law. 34 Accordingly, the application is to be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.