VCAF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 809

FEDERAL COURT OF AUSTRALIA

VCAF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 809

MIGRATION – application under s 39B of the Judiciary Act 1903 (Cth) for relief in respect of decision of Refugee Review Tribunal – privative clause decision – whether jurisdictional error Migration Act 1958 (Cth) s 474 Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 mentioned Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397 followed R v Hickman; ex parte Fox v Clinton (1945) 70 CLR 598 at 616 applied VCAF v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS V163 OF 2002 HEEREY J 17 JUNE 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 163 OF 2002

BETWEEN: VCAF

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 17 JUNE 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the costs of the respondent 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 V 163 OF 2002

BETWEEN: VCAF

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE: 17 JUNE 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant seeks review of a decision of the Refugee Review Tribunal (the Tribunal) made on 31 January 2002 and handed down on 22 February 2002, affirming a decision of a delegate of the Minister not to grant the applicant a protection visa. The application is made under s 39B of the Judiciary Act 1903 (Cth)and s 475A of the Migration Act 1958 (Cth) (the Act). 2 The applicant is a male from Turkey aged thirty. He arrived in Australia on 24 October 1998 and made an application for a protection visa with the Department on 8 December 1998. The claims of the applicant were based on a fear of persecution on account of his race, as a Kurd, his religion as an Alevi, and his political opinions, either held or imputed to him by others. 3 The Tribunal accepted that his fears were subjectively genuine but that objectively they were not well-founded. The applicant was not represented at the hearing of the present application but had the benefit of detailed contentions of fact and law dated 27 May 2002 which were prepared by a barrister on his behalf pursuant to the Court's pro bono scheme. 4 In substance, those submissions attempted to deal with the basic problem for the applicant's case, namely that it is a privative clause decision as defined by s 474(2) of the Act and thus, by reason of s 474(1): "(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 upon any account. 5 The applicant's contentions of fact and law sought to advance an argument that there nevertheless remained a ground of attack for "jurisdictional error" and that such an error was to be found in the decision of the present case. It was said the Tribunal failed to apply or properly apply the "real chance test" articulated in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. I appreciate of course that the operation of s 474 is currently under consideration by a Full Court. However, in the meantime, all I can do is to apply the reasoning I adopted in Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397. 6 The decision presently under consideration will not be subject to review, provided that the decision‑maker has made a bona fide attempt to exercise the power, the decision relates to the subject matter of the legislation and the decision is reasonably capable of reference to the power given to the decision‑maker: see R v Hickman; ex parte Fox v Clinton (1945) 70 CLR 598 at 616. 7 There could be no doubt that the present case satisfies the second and third of those conditions, since it is a decision of the very kind which the Act confers on the Tribunal. There is no suggestion that it was anything other than bona fide, of it being made for some ulterior purpose or being motivated by any animus against this particular applicant. At most, the argument put was that the Tribunal made factual or legal errors in applying the well-accepted test to this particular case. 8 At the hearing the applicant, who was not represented but spoke through an interpreter, said that not many changes had taken place in Turkey, that there were still restrictions on the Kurdish language, that his activities in Australia were of major concern and that he believed his life will be in great danger. Plainly, these are matters going to the factual merits of his case and cannot form the subject of judicial review and certainly not under the privative clause provisions. 9 Counsel for the Minister very properly drew my attention to some aspects of the Tribunal's decision which he said could possibly found an argument that, in reaching its decision, the Tribunal had not identified them or given them sufficient weight. I do not think it is necessary to go into any detail on this; the exchange with counsel will be recorded on the transcript. Plainly, in my view, they would not bring the decision outside the protection of s 474. 10 So the application will be dismissed with costs, including reserved costs.