SAAC v Minister for Immigration & Multicultural Affairs [2002] FCA 188

FEDERAL COURT OF AUSTRALIA

SAAC v Minister for Immigration & Multicultural Affairs [2002] FCA 188 SAAC v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS S.176 of 2001 MANSFIELD J 7 MARCH 2002 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S.176 OF 2001

BETWEEN: SAAC

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 7 MARCH 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay to the respondent costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S.176 OF 2001

BETWEEN: SAAC

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 7 MARCH 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicant is a national of Iran aged 27. He left Iran in February 2001, arriving in Australia some little time later. On 25 April 2001 he applied for a protection visa under the Migration Act 1958 (Cth) (the Act). On 15 June 2001 a delegate of the respondent refused that application, and on 19 September 2001 the Refugee Review Tribunal (the Tribunal) affirmed that refusal to grant him a protection visa under the Act. 2 On 4 October 2001 the applicant applied for review of that decision of the Tribunal. On 2 October 2001, amendments to the Act came into force, including the very significant amendments to Pt 8 of the Act effected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) dealing with judicial review. The transitional provisions of that amending Act provide that the Act as amended applies to decisions made before the amendment if an application for review was lodged after the amendment came into effect: Schedule 1 Item 8 (2)(b) of that amending Act. Consequently, although the application before the Court relates to a decision of the Tribunal made before 2 October 2001, it falls to be determined under Pt 8 of the Act as now in force. 3 The Court has jurisdiction under s 39B of the Judiciary Act 1903 (Cth) to address decisions of the Tribunal in certain circumstances. The respondent accepts that. It is a position which is recognised by s 475A of the Act, at least in respect of decisions of the Tribunal under Pt 7 of the Act. Despite the apparent width of the privative clause provision in s 474 of the Act, the respondent acknowledges that the Court may grant review under s 39B of the Judiciary Act in limited circumstances. He contends that those circumstances are confined to the principles derived from the judgment of Dixon J in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 616 (Hickman). Dixon J in R v Murray; ex parte Proctor (1949) 77 CLR 387 at 399-400 identified a "second step" to consider, beyond the Hickman principles, when interpreting a legislative instrument in which a privative clause is contained. That is to consider whether particular limitations on power and specific requirements as to the manner in which the administrative decision maker should be constituted or should exercise its power are expressed so that they must be taken to mean that the observance of those limitations and compliance with those requirements are essential to a valid action, notwithstanding the privative clause. In this matter I do not consider that the matters of which the applicant complains gives rise to the need to address those issues. 4 The applicant is a single man. He completed school in 1991, and worked as a carpet repairer to 1996, apart from a two year period of military service. Between 1997 and 2000, he travelled variously between Syria and Turkey as well as living in Iran for periods of time. After those travels, in January 2001 he returned to Iran for a brief period before leaving again. He claimed that there were four reasons why he had fled from Iran so as to qualify as a "refugee" as that term is defined in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention). That is, he claimed to have a well-founded fear of persecution for a Convention reason in several respects, so that Australia is a country which owes him protection obligations under the Convention, and in turn he meets the criterion for the grant of a protection visa specified in s 36(2) of the Act. It is necessary to advert to each of those claims, and how the Tribunal dealt with them in turn.