SAAJ v Minister for Immigration & Multicultural Affairs [2002] FCA 319

FEDERAL COURT OF AUSTRALIA

SAAJ v Minister for Immigration & Multicultural Affairs [2002] FCA 319 SAAJ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS S.188 of 2001 MANSFIELD J 11 APRIL 2002 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S.188 OF 2001

BETWEEN: SAAJ

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 11 APRIL 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is 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.188 OF 2001

BETWEEN: SAAJ

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 11 APRIL 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicant seeks review of a decision of the Refugee Review Tribunal (the Tribunal) made on 26 September 2001. The Tribunal affirmed a decision of a delegate of the respondent made on 17 May 2001 refusing to grant to the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act) on 26 February 2001. That was not the first application for a protection visa which the applicant had made. He had previously applied for a protection visa on 18 February 2001, but under a different name 2 Because the application to the Court was made after the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), the amendments to the Act effected by that amending Act apply: Schedule 1, Item 8(2)(b) to the amending Act. Consequently, the Court has jurisdiction to review the Tribunal's decision only under s 39B of the Judiciary Act 1903 (Cth), and has no jurisdiction under any other statute: see ss 475A and 477 of the Act. The respondent acknowledges that the decision of the Tribunal is not excluded from review by the Court under the Judiciary Act (see s 476 of the Act) but contends that the Tribunal's decision is a "privative clause decision" within the meaning of s 474(2) of the Act so as to bring into application s 474(1) of the Act. Section 474(1) provides that the decision of the Tribunal is final and conclusive, cannot be challenged or reviewed or called in question in any Court, and is not subject to prohibition, mandamus, injunction, declaration, or certiorari in any Court on any account. Before addressing the question of whether the literal breadth of s 474(1) precludes review by the Court in this matter, having regard inter alia 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, and in R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 399-400, it is in my view appropriate to identify whether any particular potential grounds of review are established which might enliven the Court's power under s 39B of the Judiciary Act. I note that Merkel J in Walton v Ruddock [2001] FCA 1839 has discussed the extent to which s 474(1) of the Act operates so as to immunise from review decisions of the Tribunal which involve breaches of, or failure to comply with, statutory requirements applicable to the making of that decision, or which may have been made in breach of the rules of natural justice or procedural fairness, or on other grounds.