SAAD v Minister for Immigration & Multicultural Affairs [2002] FCA 206

FEDERAL COURT OF AUSTRALIA

SAAD v Minister for Immigration & Multicultural Affairs [2002] FCA 206 SAAD v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS S.177 of 2001 MANSFIELD J 15 MARCH 2002 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S.177 OF 2001

BETWEEN: SAAD

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 15 MARCH 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay to the respondent costs of the application to be taxed.

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.177 OF 2001

BETWEEN: SAAD

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 15 MARCH 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 On 5 October 2001 the applicant applied to review a decision of the Refugee Review Tribunal (the Tribunal) given on 18 September 2001. The Tribunal affirmed a decision of a delegate of the respondent given on 4 December 2000 refusing to grant to the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act) on 7 October 2000. Because the application to the Court was lodged after the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), the Act as amended by that amending Act applies to the determination of the present application: Schedule 1, Item 8(2)(b) of the transitional provisions. Consequently, the Court has jurisdiction to entertain the application under s 39B of the Judiciary Act 1903 (Cth), but otherwise has no jurisdiction to entertain the application: see ss 475A and 477 of the Act. Moreover, as the Tribunal's decision is a "privative clause decision" as defined in s 474(2) of the Act, s 474(1) of the Act applies. It provides that the decision of the Tribunal is final and conclusive, cannot be challenged or reviewed or called into question in any court, and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. 2 The respondent acknowledges that the literal breadth of s 474 cannot oust the jurisdiction of the Court entirely. He accepts that the Court may review the decision of the Tribunal in limited circumstances, namely those contained in the principles expressed by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616. In addition, by reason of the observations of Dixon J in R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 399-400, if there is a relevant inconsistency between a provision of the Act which defines and restricts the power of the Tribunal and prescribes the course it must pursue, and the provisions of s 474(1), then that inconsistency or apparent inconsistency should be resolved by interpreting the Act as a whole, including the particular provisions in context. It is of course inappropriate to address such issues on a theoretical basis. Accordingly, it is desirable first to identify in what respects, if any, the Tribunal's decision indicates some reviewable or potentially reviewable error which may be amenable to the Court making an order under s 39B of the JudiciaryAct, and if such potentially reviewable error is exposed, then to consider whether in the light of s 474(1) of the Act, the Court has the power to grant relief and should do so.