NAEP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 694

FEDERAL COURT OF AUSTRALIA

NAEP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 694

MIGRATION – jurisdictional error – Refugee Review Tribunal did not believe applicant for review – on application to Court submitted that Tribunal should have appreciated that applicant had suffered brain injury and brain damage (as he in fact had) and that this had caused him to give evidence in a "rambling" manner (as the Tribunal said he had) – submission that in various ways this gave rise to entitlement to relief – application failing on the facts Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 474 Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 Craig v State of South Australia (1995) 184 CLR 163

NAEP v MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS N 215 OF 2002 LINDGREN J 3 JUNE 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 215 OF 2002

BETWEEN: NAEP

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 3 JUNE 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. 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 215 OF 2002

BETWEEN: NAEP

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE: 3 JUNE 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION 1 By his amended application, which was filed in Court with leave on the hearing, the applicant seeks to invoke the jurisdiction of the Court under s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") in respect of a decision of the Refugee Review Tribunal ("the Tribunal"). By that decision the Tribunal affirmed a decision of a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs ("the Delegate" and "the Minister" respectively) refusing to grant the applicant a protection visa. The applicant seeks a declaration that the Tribunal's decision was made in excess of jurisdiction and is null and void, an order setting aside the decision and an order prohibiting the Minister from taking any action in respect of the enforcement of the decision. 2 The Tribunal's decision was dated 25 January 2002 and was handed down on 19 February 2002. Accordingly, the Migration Act 1958 (Cth) ("the Act") as amended by Schedule 1 to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) ("the Amendment Act") (which Schedule commenced on 2 October 2001) applies in respect of judicial review of the Tribunal's decision: see s 3 of the Amendment Act, Schedule 1 Pt 2, subcl 8(2)(a). The Tribunal's decision was a "privative clause decision" as defined in subs 474(2) in Division 1 of the new Pt 8 of the Act. 3 Subsection 474(1) of the Act provides as follows: "A privative clause decision: (a) is final and conclusive; and (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." 4 Division 2 of Pt 8 contains further provisions relating to privative clause decisions. Section 475 provides that Division 2 is not to be taken to limit the scope or operation of s 474. Subsection 476(1) provides, relevantly, that despite any other law, including s 39B of the Judiciary Act, the Federal Court does not have jurisdiction in relation to a "primary decision". A "primary decision" is, inter alia, a privative clause decision that is reviewable or has been reviewed under Pt 7 of the Act. The decision of the Delegate in the present case was therefore a primary decision, but the decision of the Tribunal was not. Section 475A, also within Division 2, provides that s 476 does not affect the jurisdiction of the Federal Court under s 39B of the Judiciary Act in relation to a privative clause decision that is, relevantly, a decision made on a review by a Tribunal under Pt 7. The Tribunal's decision was such a decision. 5 The interrelationship between ss 474, 475, 475A and 476 has now been discussed in several cases but I am able to dispose of the present application without examining that question. This is because the applicant's case clearly fails on its facts.