NACT v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 618

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

N 1595 of 2001 BETWEEN: NACU

APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WHITLAM J

DATE: 12 APRIL 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 These two applications have been heard together. They relate to decisions of the Refugee Review Tribunal ("the Tribunal") made on 17 October 2001 and 18 October 2001. Both decisions were handed down on 7 November 2001. In matter number N 1594 of 2001 the applicant is the husband. In matter number N 1595 of 2001 the applicant is the wife. 2 The Tribunal heard an application for review of decision to refuse a protection visa in respect of the wife and the children on 16 October 2001 and the Tribunal, constituted by the same member, heard an application in respect of the husband on 18 October 2001. Each of the applicants is a Fijian national of Indian ethnicity who claims to fear persecution on the Convention ground of race. In each case the decision of the Tribunal was to affirm the decision of the delegate of the respondent ("the Minister") refusing to grant protection visas. 3 Mr Newman, the solicitor for the applicants, framed his submissions by reference to the reasons for decision given by the Tribunal in the husband's case. Counsel for the Minister did not quarrel with this approach. Mr Newman ultimately submitted that the Tribunal had made a jurisdictional error of law in the question it had asked itself in relation to whether each of the applicants had a well-founded fear of persecution. 4 Mr Newman took the Court through the evidence on persecution in Fiji of ethnic Indians that was before the Tribunal. Two of those pieces of evidence were reports from the Department of Foreign Affairs and Trade ("DFAT"), the first of which was made on 20 September 2000, and the second on 3 April 2001. Mr Newman pointed to one of the paragraphs being in almost identical terms in each of those reports. In its findings, the Tribunal had regard to that paragraph, noting that the country information included an assessment by DFAT "that the risks of significant communal mistreatment of indo-Fijians remains at a low level". Mr Newman submitted that the use of the expression "low level" was indicative of an error of law and referred to Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. The Tribunal had made reference to Chan Yee Kin v Minister for Immigration & Ethnic Affairs in its reasons for decision noting that "[a] person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent". 5 It was submitted by Mr Newman that the Tribunal had fallen into error in equating the concept of crime with that of persecution. In its findings, the Tribunal had apparently treated the violence and mistreatment to which the husband had been subjected as instances of random crime. Mr Newman submitted that this misunderstood the case raised by the husband, namely, that he was the subject of violence because of his ethnicity. Accordingly it was submitted that the finding of the Tribunal that there was not a real chance that he would be persecuted should he return to Fiji was flawed because it addressed a fear of crime rather than the fear of persecution on the basis of his ethnicity. Mr Newman contended that the Tribunal had in that way asked itself the wrong question which involved a jurisdictional error of law and the Tribunal's decisions should therefore be set aside. 6 Mr Newman acknowledged that he had to meet the fact that both these decisions were made and handed down after the amendments to Pt 8 of the Migration Act 1958 ("the Act") and the effect of the privative clause in the new s 474 of the Act. A faint suggestion was made that the decisions of the Tribunal were not privative clause decisions. Some reference was made to the inclusive definition of a decision in s 474(3)(i). However, there is not the slightest doubt that the decision of the Tribunal under s 415 of the Act is a privative clause decision. So much is explicitly acknowledged in s 475A(a) of the Act where a reference is made to a privative clause decision that is a decision made on a review by a Tribunal under Pt 7 of the Act. 7 Mr Newman attempted to meet the obstacle faced by s 474 by reference to the way in which privative clauses had been construed in two decisions of the Supreme Court of Canada: Pasiechnyk v Saskatchewan (Workers' Compensation Board) [1997] 2 SCR 890, and Pushpanathan v Canada (Minister of Citizenship and Immigration) [1998] 1 SCR 982. However, those cases turn on the terms of the legislation there under consideration and are of no general usefulness in considering the breadth and effect of s 474. 8 Section 474 of the Act and the scheme of the new Pt 8 have been the subject of consideration in a number of decisions in this Court, notably by Gyles J in NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263, Tamberlin J in NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281, and Beaumont J in NABM of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCA 335. However, on the day before the hearing of these applications, Wilcox J handed down a decision in case involving an application for review of a decision of the Migration Review Tribunal, Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438, in which his Honour took a different view of the scope of any review left to this Court under s 39B of the Judiciary Act 1903 in respect of decisions of Tribunals under Pt 5 or Pt 7 of the Act. 9 Before expressing a view on the conflict in those authorities, I should say that I am not satisfied at all that the Tribunal made any error of law at all in is approach in these two decisions. The reference to crime in no way diverted the Tribunal from its task of assessing what was the real chance of persecution on the grounds of race were the applicants to return to Fiji. So much is clear from the general terms in which the Tribunal expressed its decision. I do not consider it asked itself the wrong question. Certainly it did not so explicitly. Nor may it be inferred that it did so by reference to the way in which it referred to the evidence before it or the way in which it framed its reasons for its findings. Accordingly I do not think there is any question of a jurisdictional error of law in this case. 10 However, even if I were wrong on the question of jurisdictional error, it seems to me, for the reasons given by Tamberlin J in NABE v Minister for Immigration & Multicultural Affairs, no review is available in this Court. The principles enunciated by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615 may be, and I am prepared to assume are, available to ground jurisdiction in this Court under s 39B of the Judiciary Act 1903 to review decisions of Tribunal under Pt 7 of the Act, but there is no suggestion that those principles have been brought into play in this case. I need not restate what was said by Tamberlin J in NABE v Minister for Immigration & Multicultural Affairs about the content of the so-called Hickman principles or how they may be invoked. 11 The difference between Wilcox J and Tamberlin J seems to be succinctly stated in how Tamberlin J approached the question of the reach of s 474 in [27] of his reasons and what Wilcox J said in [65] of his reasons. For my part I respectfully agree with the approach of Tamberlin J as subsequently applied by Beaumont J. It is not a question, with respect, of rejecting the guidance provided by the High Court in Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. Rather, in my opinion it is a question of interpreting what it is that the Act requires in terms by s 474. I agree with Tamberlin J that s 474 makes it evident that the decision of the Tribunal is intended authoritatively to resolve questions of fact and law before it. Accordingly, in each matter the application will be dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.