WAAC v Minister for Immigration & Multicultural & Indigenous Affairs

the federal magistrate's decision 14 The appellant had originally lodged an application for review of the Tribunal's decision with this Court. That application was transferred to the Federal Magistrates Court on 12 April 2002, pursuant to s 32AB of the Federal Court of Australia Act. The only ground of review was stated in the following terms: "I am an Iraqi who can't go back to my country so I apply to the Federal Court." 15 His Honour decided to treat the application as if it were framed in such a way as to seek relief pursuant to s 39B of the Judiciary Act 1903 (Cth). 16 His Honour set out in his reasons written submissions which the appellant had made to the Court. They were as follows: "I would like to inform you that I am an Iraqi citizen residing in the Islamic Republic of Iran since 22 years ago. My family with my self were deported from Iraq by the Iraqi government in 1979 accusing us being from Iranian ancestry. Therefore we had no choice but to live in Iran, after that the Iranian government issued a decision to deport all Iraqi refugees back to Iraq which we will be persecuted, then I decided to leave Iran and look for a country to live and settle in peace. . . . In the RRT's decision state that they don't believe about my Iraqi citizenship because I did not answer the questions in regards to my residency in Iraq, although I left Iraq very young I was just 8 years old and I don't remember those incidents specially after all these years. I was asked at the RRT's hearing about the rivers in Iraq, my answer was the two rivers Tigress and Euphrates but the court's decision was negative because they thought that Tigress and Euphrates were not in the Iraq's map. It could be some suspicions surrounding my nationality because during the initial interview I mentioned that I am an Iranian national and that is because of different reasons the most important are: On my way to Australia I learned that the granting of refugees states in Australia its very difficult, also I learned that the Australian authorities return the Iraqis to their country, the advise from the people on board of the boat which brought us was to say that I am an Iranian citizen because I was scared to be sent back to Iraq. My fear to be sent back to Iraq was the reason behind me saying that I am an Iranian national, because when we arrived in Australia we were treated in an intimidated way, we were split from the external world all these led me to hide my real name and nationality. After I got a clearer picture and deep thinking I decided to confess and say the truth about my real name and real nationality." 17 His Honour expressed the view that the Tribunal's decision was a "privative clause decision" within the meaning of s 474(2) of the Act and that accordingly, by reason of the provisions of s 474(1), there was only limited power to review the decision. 18 His Honour referred to R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616 and then reasoned as follows: "30. The applicant must establish one of three things if he is to impugn a decision covered by a privative clause: (a) that the constitutional authority of the Parliament to define the powers of the decision-maker has been exceeded; (b) that the exercise of power was unrelated to the subject matter of the legislation; or (c) that the decision that was made was, on its face, beyond power or was not a bona fide attempt to act in the course of the RRT's authority. 31. The applicant has not shown that any of these conditions applies in this case. Indeed, he has not argued any of those points. Conclusions 32. The applicant has not shown that there was any error in the decision of the RRT that would entitle him to relief under section 39B of the Judiciary Act. The RRT has found that he is an Iranian citizen, and not a citizen of Iraq. If that finding is mistaken, it would be a mistake of fact going to the merits of the decision and not an error of law going to jurisdiction. An erroneous finding of fact would not, in any case, be a breach of any essential requirement of the Migration Act. 33. I find that the applicant is not entitled to relief pursuant to section 39B of the Judiciary Act. The application must be dismissed." 19 His Honour then expressed some concerns about the fact that the appellant had not been legally represented before him, that the proceedings had been conducted by video-link with the appellant in detention in Derby, the Court being in Sydney, and the respondent's legal advisers and the interpreter being in Perth.

the appeal 20 The grounds of appeal were in the following terms: "The court erred in finding that the Refugee Review Tribunal had not acted in violation of an impractive duty or an inviolation limitation upon it by section 424(1) of the Migration Act. Procedure that were required by the Migration Act to be observed in connection with the making of the decision were not be observed. That the decision involved an error of law being an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision." 21 I made an order under Order 80 of the Federal Court Rules referring the appellant for legal assistance in relation to his appeal. Dr J Cameron accepted the referral and gave some assistance to the appellant. Dr Cameron later applied for leave to cease providing that legal assistance in accordance with Order 80 rule 8. The District Registrar granted that leave. Accordingly the appellant was unrepresented when the appeal came on for hearing. 22 However, Mr T Searle, a law student, prepared some written submissions on behalf of the appellant, the essence of which was as follows: · The Tribunal had allowed the appellant insufficient time to obtain documentation from Iran; · He was unable to obtain the relevant documents within the 20 day period initially granted by the Tribunal. This was a result of difficulties in contacting his family who did not have ready access to a telephone; · The appellant had, in part of his responses to questions from the Tribunal, mentioned two Iraqi rivers specifically the Tigris and Furat but this had not been accurately interpreted to the Tribunal; 23 Annexed to the appellant's submissions were photocopies of two documents in the Farsi language. One was said to be an order to invalidate his Green Card and the other was a copy of his Travel Card. Also annexed were photocopies of what was said to be translations of those documents, each of which refers to the appellant as being an Iraqi national. 24 Mr P R Macliver, counsel for the respondent objected to my receiving the annexed documents into evidence. I reserved on the question of what use, if any, I should make of them. 25 I decided to receive the photocopy documents annexed to the appellant's submissions into evidence, not as proof of their contents, but as being relevant to how the appeal should be determined. 26 I formed the view that the appellant was, in essence, seeking to raise a complaint of procedural unfairness of sufficient seriousness to warrant a finding of jurisdictional error. The fact that the appellant had eventually managed to secure some documentation is, in my view, relevant if I were to allow the appeal, to the question whether the matter should be remitted to the Federal Magistrates Court for re-hearing or further hearing. In the absence of such documentation it might have seemed futile to make such an order. Futile because even after the lapse of a considerable period of time, it might otherwise have appeared that no such documents had been obtained.

my reasoning in the appeal 27 Although the Federal Magistrate's decision was delivered before the Full Court decision in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 249, he decided the case substantially in accordance with what was held in that case i.e. by applying the Hickman principles. 28 Subsequent to his Honour delivering his reasons, the High Court handed down its decision in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. I take the following summary of the High Court's decision from a decision of a Full Court of this Court in Applicant NAOB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 33 at [11]: "In summary, the High Court held that s 474 insofar as it rendered final and conclusive a privative clause decision and protected it from challenge, only did so in respect of "decisions made under … [the] Act". Thus, decisions which involve a failure to exercise jurisdiction or involve an excess of the jurisdiction conferred by the Act are not, as a matter of statutory construction, decisions made under the Act and are therefore not privative clause decisions protected by s 474. Put shortly, s 474 does not apply to decisions which involve jurisdictional error, and does not apply, in particular, to decisions which do not comply with the principles of natural justice: Plaintiff S157/2002 v Commonwealth of Australia (supra) at 47." 29 In my view, with the hindsight provided by Plaintiff S157/2002, it is clear that the learned Magistrate unwittingly erred in law by taking too narrow a view of what might constitute reviewable error on the part of the Tribunal. 30 Counsel for the respondent, in both written and oral submissions, argued that there was no basis for the appellant's contention that he had been denied procedural fairness. He took me to various factors in support of his argument. He submitted, in essence, that I should dismiss the appeal because there was no substance in the underlying grounds advanced by the appellant. 31 However, if I were to form the opinion that there had been procedural unfairness on the Tribunal's part, counsel for the respondent suggested that the appropriate course for me to take would be to allow the appeal, set aside the Tribunal's decision and remit the matter to it for reconsideration. 32 It is reasonably clear from part of the submissions made to the Federal Magistrate (problems relating to the names of the two rivers, later in submissions on appeal said to stem from interpretation difficulties) and the submissions in this Court, relating to the limited time extended to him by the Tribunal to obtain documentation from Iran, that the appellant seeks to raise a case of a denial of procedural fairness of sufficient seriousness to amount to jurisdictional error or perhaps some other jurisdictional error. 33 I note that the appellant's application for a protection visa was processed with considerable expedition. Within a matter of some seven weeks from the date of that application he was facing questioning from the Tribunal, at the hearing of its review, about documentation which may have been issued to him by the Iranian authorities. He was given, initially, 20 days to produce it. 34 I note also that the Tribunal relied upon the appellant's statement (at the time of making his application for a protection visa) that he had forfeited any right to enter Iran as somehow rendering illogical his explanation that he had originally (and falsely) stated that he was an Iranian because he feared deportation to Iraq if he disclosed his Iraqi nationality. The explanation seems most logical when perceived from the appellant's standpoint. He feared being deported to Iraq if he disclosed his Iraqi nationality and he also feared being deported from Iran to Iraq if he was returned from Australia to Iran. In those circumstances, whether Iran would let him into that country was not really a relevant concern. Contrary to the reasoning of the Tribunal, the appellant had much to gain by claiming to be a citizen of Iran rather than Iraq - if he could persuade the Australian authorities not to send him back to Iran. On the present state of the authorities, this sort of error of reasoning on the Tribunal's part (if it be error) does not provide a ground of review. But it may put one on inquiry whether there was a real exercise of the functions entrusted to the decision-maker, see Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 at 422. I note further that the Tribunal, having rejected the appellant's claims based on Iraqi nationality, does not appear to have made any factual findings about the appellant's circumstances in Iran. It referred to the fact that he had resiled from his original claims which it noted would not amount to persecution "[I]f his account was factual". 35 I do not think that it is appropriate to make any comment about the strength or otherwise of the appellant's claims to have been denied procedural fairness or the likelihood of jurisdictional error being found, other than to say that it is not possible for me to find that his case is hopeless. It was, I think, the Court's assessment of the hopelessness of the appellant's case in NAOB, which led the Full Court to dismiss the appeal. In this matter I propose to follow the course taken by Mansfield J in SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 74, a case which, in my view, has sufficient similarity to the present matter to warrant a similar outcome. In SGDB his Honour reasoned, at 23-25 as follows: "I think it is also proper to remit the matter to the Magistrate for rehearing or further hearing according to law. I do not consider it appropriate to determine the application myself, sitting as a Full Court. Firstly, I have heard this appeal sitting as a Full Court of the Federal Court following a direction by the Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976. The Chief Justice's direction that the appeal should be heard by a single judge was given when the decision in NAAV would have been applied, whereas the decision in Plaintiff S157/2002 indicates the nature of jurisdictional error on the part of the Tribunal may involve complex and difficult questions of law. Such matters may be more appropriately addressed by the Magistrate at first instance and, in the event of an appeal, by a Full Court constituted as normal by three judges. It is not clear that, in the light of the High Court decision, the Chief Justice would have given such a direction, at least until the significance of the decision in Plaintiff S157/2002 has been explored in later cases. As the appeal has been heard, it is not appropriate for the certificate given under s 25A of the Federal Court of Australia Act 1976 to be withdrawn. Accordingly, I do not think it is fair to the appellant in the circumstances to be deprived of the normal judicial review processes available to him. If I were to decide this matter myself, he would in effect be getting only one judicial determination in accordance with the decision in Plaintiff S157/2002 about the correctness in law of the Tribunal's decision. He has no further right of appeal, although he may seek special leave to appeal to the High Court. Allied to that consideration is the fact that, on what is clearly a complex and difficult legal question, I would be giving a judgment as a Full Court of the Federal Court. The precedential consequences of such a judgment in relation to single judges of the Court sitting at first instance has not yet been explored. For those reasons, I allow the appeal and remit the matter to the Federal Magistrate who heard the application under s 39B of the Judiciary Actat first instance for rehearing or further hearing according to law." 36 [With respect, while it is quite clear that his Honour was exercising the appellate jurisdiction of this Court, I do not think he was sitting as a Full Court. But I agree, again respectfully, with all of the other views which he expressed in the passages set out immediately above]. 37 A similar course was taken, a few days later, by a Full Court in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 19.

Conclusion 38 For the foregoing reasons the appeal will be allowed, the decision and orders of the Federal Magistrates Court will be set aside and the application will be remitted to the Federal Magistrates Court for rehearing or further hearing. I will hear the parties on the question of costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr .

The Appellant appeared in person, with Mr T Searle as his "McKenzie friend".

Counsel for the Respondent: Mr P R Macliver

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 7 March 2003

Date of Judgment: 14 March 2002