VBAH v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant is a citizen of Sri Lanka of Sinhalese ethnicity. He arrived in Australia on 5 November 2001 as the holder of a class TE cultural social temporary subclass 420 (Entertainment) visa due to expire on 30 November 2001. Soon after his arrival it was discovered that the basis for that visa did not exist. On 9 November 2001 he lodged an application for a protection visa. He alleged a fear of persecution for reasons of political opinion due to his membership of the United National Party (UNP) and support for a particular UNP politician. 2 On 6 December 2001 a delegate of the Minister refused to grant a visa. That refusal was affirmed by the Refugee Review Tribunal (the Tribunal) on 22 January 2002. The Tribunal was satisfied that the applicant was a member of the UNP but was not satisfied that he had played any major role in the UNP beyond putting up election posters. The applicant was unable to give a plausible explanation as to why he would be personally targeted either by members of the opposing parties or by other groups in his party. The Tribunal did not accept that the applicant had gone into hiding prior to leaving Sri Lanka for a period of six months, noting that he had not provided details of any claimed events sufficient to lead him to take this course. 3 The Tribunal rejected the applicant's claims that he had been insulted and that the windows at his home had been broken. The Tribunal was not satisfied that the applicant had been subjected to political violence in the past and found that there was no real chance that he would face persecution because of his political opinion if he were to return to Sri Lanka. The Tribunal noted that after the recent elections the UNP were now in power in Sri Lanka. The Tribunal found that the applicant was able to obtain the protection of the state and that any fear of persecution was therefore not well-founded. 4 The application for review in this Court was filed on 18 February 2002. The only grounds stated were: "Review the tribunal decision on grounds under section 476 of the Migration Act 1958 (further details and amended application to be forwarded.)" 5 No such amended application or further details have been filed or served. 6 This application is governed by the Migration Act 1958 (Cth) (the Act) as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). Thus the only jurisdiction of the Court is derived from section 39B of the Judiciary Act 1903 (Cth). The Court has to apply s 474 of the Act, which was introduced by last year's amendment. The decision in question is a "privative clause decision". Section 474(1) 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. 7 A decision to refuse a protection visa is a privative clause decision for the purposes of s 474(1). It is accepted by counsel for the Minister that the apparent exclusion of the Court's jurisdiction would not apply to the very limited grounds formulated by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, namely, that the Court's jurisdiction will not be excluded where the decision under question was not a bona fide attempt to exercise the power or does not relate to the subject matter of the legislation or is not capable of reference to the power given to the decision-maker. 8 I would follow the construction given to s 474(1) by Gyles J in NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 at [13] to [37] and by Tamberlin J in NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281 at [11] to [31]. There is clearly no basis in the present case for any contention that the limited Hickman grounds are available. 9 The application will be dismissed with costs.