FEDERAL COURT OF AUSTRALIA NADX of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 688 NADX OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 175 OF 2002 EMMETT J 27 MAY 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 175 OF 2002 BETWEEN: NADX OF 2002 APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 27 MAY 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant's request for an adjournment be denied; 2. The application be dismissed; 3. The applicant pay the respondent's costs of the proceeding; 4. A transcription of my reasons for these orders 1,2 and 3 be furnished to the applicant as soon as practicable; and 5. Orders 2 and 3 be stayed until the expiration of twenty-one days after a copy of the reasons of 27 May 2002 has been sent to the applicant at the address shown in his application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 175 OF 2002 BETWEEN: NADX OF 2002 APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: EMMETT J DATE: 27 MAY 2002 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant is a national of Pakistan who arrived in Australia on 16 October 2000. On 24 November 2000 he lodged an application under the Migration Act 1958 ("the Act") for a Class XA protection visa with what is now the Department of Immigration and Multicultural and Indigenous Affairs. 2 On 22 December 2000 a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), refused to grant a protection visa. On 29 January 2001 the applicant sought review of that decision by the Refugee Review Tribunal ("the Tribunal"). On 9 January 2002 the Tribunal affirmed the decision not to grant a protection visa. The decision of the Tribunal was handed down on 5 February 2002. On 5 March 2002 the applicant filed an application to the Federal Court for an order of review of the decision of the Tribunal. 3 When the matter came before me for directions on 12 April 2002 I listed the matter for hearing today. At that stage the applicant was represented by Mr Nick Poynder of counsel. Mr Poynder informed me that he was briefed on the direct access basis. The applicant was directed to file and serve an amended application and any evidence upon which he proposed to rely on or before 13 May 2002. I also gave directions concerning the filing of submissions. While the Minister has filed written submissions nothing has been filed on behalf of the applicant. 4 On 23 May 2002 the Court was informed by Mr Poynder that he was no longer instructed to appear for the applicant. When the matter was called on for hearing today the applicant appeared in person with the assistance of an Urdu interpreter. The applicant informed the Court that he had only found out from a friend yesterday that he would not be represented today. He therefore asked that the hearing be adjourned. Having regard to the terms of s 474 of the Act their appeared to me to be no utility in granting an adjournment. I therefore refused to do so. 5 The applicant was unable to advance any submissions in support of his application. The application does not specify an appropriate ground of review. The terms of the grounds contained in the application are as follows: "Because I was harassed and persecuted by the PPP and Muslim extremists due to my political connection with Narwahs Sharaf's PML Party that the RRT failed to consider the physical and mental harassment while when PPP came into power I was sacked from the newspaper while I was working as a reporter. That I have lost all my opportunities due to my political connection the present government deported Narwahs to Saudi Arabia, how can I expect protection and justice from them? That the RRT member failed to consider the hardship, harassment and threats on my life due to my political connection with PML Party. The present government already deported Narwahs Sharaf to Saudi Arabia, being a supporter I will be definitely persecuted and killed by the present military government if I go back to Pakistan. That the harassment and persecution I faced was not considered serious which undermines the 1951 UN Convention and 1967 Protocol related to Refugees." 6 Those complaints are no more than complaints about the circumstances of the applicant if he returned to Pakistan. They are general assertions that, if accepted, might have justified the grant of a protection visa. However, it is not the function of this Court to inquire into the circumstances of an applicant to determine whether a visa should be granted. The assertions contained in the application do not in any way constitute grounds upon which the Court could review the decision of the Tribunal. 7 The decision of the Tribunal in respect of which review is sought is a "privative clause decision" within the meaning of s 474 of the Act. Accordingly, under s 474(1) it: (a) is final and conclusive; (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. The effect of such a provision is that a decision to which the provision applies will be valid unless one of three exceptions is established. Those grounds are as follows: (a) the decision maker did not make a bona fide attempt to exercise power; (b) the decision did not relate to the subject matter of the relevant legislation; (c) the decision was not reasonably capable of reference to the power given to the decision maker. See R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616. 8 The applicant has made no attempt to establish that any of those three grounds. Even if the applicant were able to establish some error or mistake on the part of the Tribunal, that of itself would not constitute an absence of bona fides. A suggestion that a purported exercise of power is not bona fide is a serious allegation and not one to be made lightly. It necessitates proof of extreme circumstances. There is nothing in the application or in the papers that were before the Tribunal, which are before this Court, to suggest that the Tribunal did not attempt to exercise its power in good faith. 9 The second and third grounds upon which such a decision might be invalidated are very narrow. There is unlikely ever to be a case where a decision of the Tribunal will not relate to the subject matter of the Act. The decision of the Tribunal now in question related to the grant of a protection visa. That clearly relates to the subject matter of the Act. By the same token, the decision is clearly referrable to the power given to the Tribunal to decide whether or not to grant a protection visa. 10 The function that the Tribunal was exercising was precisely that of considering whether or not to grant a protection visa. The decision to refuse one and to affirm the decision of the Minister's delegate is clearly referrable to the Tribunal's power. In the circumstances the application cannot succeed. For that reason I refused the adjournment and it follows that the application should be dismissed. 11 However, I am slightly troubled by the suggestion that the applicant believed he was represented until yesterday. Accordingly, I propose to stay the orders that I propose to make for a period of twenty-one days after a copy of a transcription of my reasons has been furnished to the applicant. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 27 May 2002 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr J. Smith Solicitor for the Respondent: Sparke Helmore Date of Hearing: 27 May 2002 Date of Judgment: 27 May 2002