WABH v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant has lodged an application to seek an order for review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 5 October 2001. The Tribunal affirmed a decision of the delegate of the respondent not to grant a protection visa to the applicant. He had applied for a protection (class XA) visa on 25 May 2001, that is a visa which may be granted in accordance with the provisions of the Migration Act 1958 (Cth) ("the Act"). 2 The application was filed in the registry of this Court on 29 October 2001. It is very important that the applicant, and indeed those sharing detention with him, understands that on and from 2 October 2001 very substantial amendments were made to the Act. The previous Pt 8 which contained in particular s 476(1)(e) was replaced by new provisions. Expressed briefly, those provisions seek to limit this Court's jurisdiction by the provisions of s 474. In particular s 474(1) provides, in effect, that the decision of a tribunal shall be final and conclusive. 3 There is established law in Australia that a clause to that effect known as a privative decision has to be interpreted in accordance with certain principles. These are set down in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 at 614-616. This provides that there are preconditions to the valid exercise of a statutory decision‑making power even when the privative clause applies. Again expressed briefly, what the Court is required to look for is any evidence which shows whether the Tribunal made a bona fide attempt to exercise its power or not; and whether its decision relates to the subject matter of the legislation; and whether the decision is reasonably capable of reference to the power given to the Tribunal. 4 These provisions have been considered in this Court by single judges since the enactment of the amendments to which I have referred. On one view, it may be necessary for the Court to consider whether jurisdictional error can be identified or breaches of the rule of natural justice. There is divided opinion on that and, in my view, nothing arises on the facts here which requires me to express an opinion on that divided opinion: see, in particular, Walton v Phillip Ruddock, The Minister for Immigration & Multicultural Affairs [2001] FCA 1839 and NAAX v Minister for Immigration & Multicultural Affairs (2002) FCA 263. 5 An additional matter which could arise within the Hickman principles potentially is whether there has been a breach of any of the express provisions which govern the procedure of the Tribunal as provided for in Div 3, Div 4 and Div 5 of Pt VII. That would raise a question of statutory construction as to reconciliation of such a provision with s 474 of the Act. See NAAX at par 34 and Wang v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 167. No issue of constitutionality arises here. 6 Turning to the particular circumstances, the applicant is not a lawyer and does not have the benefit of legal representation but he has presented his case as he sees it. He is from Iran. He claimed to have left Iran and entered Malaysia on what was subsequently accepted as a false Iranian passport. There were two critical things in his claims that gave rise to disbelief by the Tribunal. 7 One related to his religious preference. He claimed that he had become interested in other religions, including Christianity and Zoroastrianism, and made other claims associated with conversion to the latter. The second was related to that fact and was a claim that his father quarrelled with him over his alleged conversion and subsequently denounced him to the police. Those matters were not mentioned in his initial interview and he was not believed in relation to them. His explanation of suffering from the rigours of the journey to Australia and which affected the evidence he gave at the initial interview was considered by the Tribunal. 8 There are a number of matters accepted by the Tribunal which it is not necessary to spell out because the reasons speak for themselves. It did not accept that he had a well‑founded fear of being persecuted for his religion or perceptions of his religion if he returned to Iran or that there would be a real chance he would be persecuted by reason of any attempt to exercise his freedom of thought or speech if he so returned. 9 It was accepted that there is a real chance that if he returned to Iran now or in the reasonably foreseeable future, he would be prosecuted both for his attempt to obtain documents falsely and for his illegal departure from Iran. However, the Tribunal said that would be due to the enforcement of a law of general application and not to a Convention-related reason. 10 The Tribunal did not consider that his application for asylum in Australia would produce any well-founded basis for a Convention reason for persecution against him and it also found that he did not have a high opposition political profile or had any involvement in political activities. As the submissions for the respondent have pointed out, the Tribunal accepted that the applicant had departed Iran illegally and dealt with its findings ultimately on that basis. 11 The important thing is that reviewing what the Tribunal did discloses that none of the Hickman preconditions is activated by any evidence in this case. Also there is not any identification of a requirement or limitation on the exercise of power by the Tribunal which it has not complied with and which, notwithstanding s 474, is essential to a valid decision by it. 12 The result of this is that s 474 has its full force and effect in this case. It means that the Tribunal decision is final and conclusive. That means that the jurisdiction of this Court arising under s 39B of the Judiciary Act 1903 (Cth) is simply not engaged. For those reasons this Court must dismiss the application. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.