VAAL v Minister for Immigration & Multicultural Affairs [2002] FCA 734

FEDERAL COURT OF AUSTRALIA

VAAL v Minister for Immigration & Multicultural Affairs [2002] FCA 734

MIGRATION – application under s 39B Judiciary Act 1903 (Cth) for relief in respect of decision of Refugee Review Tribunal – privative clause decision – whether breach of rules of natural justice – whether jurisdictional error Migration Act 1958 (Cth) s 474 Turcan v Minister for Immigration and Multicultural Affairs (2002) FCA 397 at [39] – [45] followed SBAP v Refugee Review Tribunal (2002) FCA 590 at [35] – [46] and [49] followed R v Hickman ex parte Fox and Clinton (1945) 70 CLR 598 at 615 applied VAAL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 31 OF 2002 HEEREY 3 JUNE 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V31 OF 2002

BETWEEN: APPLICANT VAAL

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 3 JUNE 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V31 OF 2002

BETWEEN: APPLICANT VAAL

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE: 3 JUNE 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant applies under s 39B of the Judiciary Act 1903 (Cth) and under s 75(5) of the Constitution for writs of prohibition, mandamus, injunction and a declaration relating to a decision of the Refugee Review Tribunal dated 4 December 2001 and handed down on 21 December 2001, which affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 2 The applicant is a Turkish citizen aged 24. He attended school and university in Turkey and in 1999 graduated from university as a teacher of the Muslim religion. He shortly thereafter went to the United Kingdom where he had an entry permit which, when renewed, entitled him to stay in that country up until 23 January 2002. Thus, at all material times, he had a valid Turkish passport in his own name and permission to reside in the United Kingdom, at least up until the date mentioned. He travelled to Australia arriving on 1 September 2001. The purpose of going to Australia was, as he said in evidence before the Tribunal, to obtain an Australian protection visa. He lodged an application for a visa on 14 September 2001. That application was refused by a delegate of the respondent on 18 October 2001. 3 He appealed to the Tribunal and was represented by a migration agent. A hearing was set down for 14 December 2001, however his agent advised the Tribunal on 23 November that he was not available on that date. On 23 November the Tribunal wrote to the applicant stating: "After seeking instructions from you, your adviser informed the Tribunal and agreed to have the hearing in early December 2001." Notification was given that the hearing would take place on 3 December. 4 The applicant's claim under the Refugees Convention was based on an alleged fear of persecution should he be returned to Turkey on the ground of his religion and imputed membership of the Hezbollah extremist Muslim group. The Tribunal accepted that when he was a student at the university he had been detained by the authorities on a few occasions although he was not ill treated and was always released. The Tribunal reviewed country information as to the state of religious freedom in Turkey and expressed its conclusions in these terms: "The Tribunal accepts that the Turkish government acts to maintain a secular state and acts against those who seriously threaten that policy. It is satisfied that the Applicant was not perceived to be a serious threat even if he was questioned when he was at university. There is no suggestion that he has belonged to a banned organisation, he was never harmed, other than being detained and questioned for brief periods, and he has not been denied university registration because of he has supported people who have denied bans on dress codes, as could be expected if he was a demonstrator of note to the authorities." 5 The Tribunal noted that if the applicant was of adverse attention to the authorities it was satisfied that his education would have been restricted and he would have been prevented from graduating as a religious teacher and would not have been able to leave the country without hindrance. The Tribunal concluded: "In all of the circumstances, the Tribunal is not satisfied that the Applicant is of any adverse interest to the Turkish authorities and finds he does not have well-founded fears of persecution. In particular, it concludes that he can return to Turkey and pursue his usual religion and livelihood without a real chance of being persecuted for reasons of his religion or political opinions that he holds or might be imputed to him by the authorities." 6 On review, counsel for the applicant said there were two issues. First, there was he said a breach of natural justice in that the Tribunal did not provide the applicant reasonable time to produce documents supporting his claim and did not give him a reasonable time for making submissions after the hearing which he had requested because of his "agitated mental state". Counsel for the respondent pointed out that the applicant did not give any indication of the sort of documents he wished to produce and noted that the Tribunal had observed that the applicant had left Turkey some years ago and travelled to Australia for the express purpose of making refugee application and might be thought to have had ample time to obtain such documents as he needed. 7 Counsel for the respondent also pointed out that at the hearing, even though the matter was stood down on two occasions to give the applicant the opportunity to formulate his claim, the applicant did not give any indication of what new matter he would wish to submit other than saying that he was, "nervous and I can't think very, very straight". 8 The second issue was said to be jurisdictional error in that the Tribunal: "Failed to apply itself to the real question to be decided, consequently identifying the wrong issue and in particular the concept of religious tolerance in Turkey in the context of its membership of the EU, vis‑a‑vis my claims, of the role of Hezbollah and the concept of Islamic fundamentalism." 9 Counsel for the respondent pointed out that that claim had been specifically considered. 10 The primary submission of counsel for the respondent, which I accept is that the court should consider at the outset whether s 474 of the Migration Act 1958 (Cth) (the Act) precludes the decision of the Tribunal being challenged, appealed against, reviewed, quashed or called into question because of the operation of s 474(1)(b) of the Act, it not being in contest that this is a privative clause decision within the meaning of s 474(2). 11 I refer to and repeat what I said in Turcan v Minister for Immigration and Multicultural Affairs (2002) FCA 397 at [39] – [45] and in SBAP v Refugee Review Tribunal (2002) FCA 590 at [39] – [46]. There has been no basis, and indeed it was not argued, that any of the three elements of validity identified by Dixon J in R v Hickman ex parte Fox and Clinton (1945) 70 CLR 598 at 615 have been made out. These elements have the effect that the decision will be valid if: "It is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation and it is reasonably capable of reference to the power given to the decision‑maker." 12 There was a very brief passing reference in an affidavit in support of the application into bona fides. It was said that the respondent, (the respondent was the Minister. I take this as being a reference to the Tribunal) has not exercised his powers in a bona fide manner for the aforesaid reasons and also for the reasons in the subsequent paragraphs. This allegation was not developed at all and the case did not seek to assert any serious suggestion that there was bad faith in the sense which that expression bears: see SBAP at [49]. 13 The application will be dismissed with costs including reserve costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.