SCAW v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 810

FEDERAL COURT OF AUSTRALIA

SCAW v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 810

MIGRATION – no point of principle. SCAW (BY HIS NEXT FRIEND ALEECIA MURRAY) v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No S 70 of 2002 von DOUSSA J ADELAIDE 4 JULY 2002

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 70 OF 2002

BETWEEN: SCAW (BY HIS NEXT FRIEND ALEECIA MURRAY)

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: von DOUSSA J

DATE OF ORDER: 4 JULY 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. Application dismissed. 2. Question of costs reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 70 OF 2002

BETWEEN: SCAW (BY HIS NEXT FRIEND ALEECIA MURRAY)

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: von DOUSSA J

DATE: 4 JULY 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) to set aside a decision of the Refugee Review Tribunal made on 7 February 2002 which affirmed a decision of a delegate of the respondent not to grant the applicant a protection visa. As it is assumed by the applicant's advisers that he is under 18 years of age the proceedings have been brought by a next friend: FCR O43, r 1. Miss Aleecia Murray from the Refugee Advocacy Service of South Australia Inc. (a Community Legal Service), agreed to act as next friend on an undertaking by the respondent not to seek costs against the applicant if the application is dismissed. 2 The parties seem to have assumed that to institute the proceedings in this way is the proper course, and no argument on the question was addressed to the court. A non-citizen under the age of 18 years who arrives in Australia automatically comes under the guardianship of the Minister: Immigration (Guardianship of Children) Act 1946 (Cth), s 6. The Minister however cannot act as the next friend in an application by such a person for judicial review of a decision made under the Migration Act 1958 (Cth) (the Act) as the Minister will be the respondent to the proceedings. The Minister obviously has an adverse interest in these circumstances: see FCR O43, r 4(3). Where a guardian of a child has an adverse interest, the duty of the guardian will usually be fulfilled by having someone who is independent advise the child and undertake the role of next friend. It seems that has occurred in the present case. However, it is now established that in proceedings of the present kind brought by a non-citizen child a next friend or tutor is not necessary: see X v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 524, and Odhiambo v Minister for Immigration & Multicultural Affairs [2002] FCAFC 194 at [106]. 3 As will appear from the summary of the Tribunal's reasons set out below, the applicant's claim failed on the ground that there was no objective basis for the applicant to hold a well founded fear of persecution for a Convention reason so as to bring him within the definition of a refugee contained in Article 1A of the Refugees Convention as defined in s 5 of the Act. Counsel for the applicant contends, first, that on two critical factual issues which led to this conclusion by the Tribunal, it made findings of fact that were unsupported by any material before the Tribunal. Secondly, it is contended that the Tribunal reached its findings because it had a pre-determination to reject the applicant's visa application; that it did not make its decision in good faith but was actuated by actual bias revealed by its failure to exercise its decision making power with an open mind. On these grounds it is contended that the Tribunal's error is not within the scope of the privative clause contained in s 474 of the Act, as it comes within one of the exceptions to such a clause recognised by Dixon J in R v Hickman; Ex Parte Fox & Clinton (1945) 70 CLR 598 at 616. The exception relied on is that the decision was not in fact a bona fide attempt to act in the course of the Tribunal's decision making authority. 4 As the Tribunal's decision was made after 2 October 2001, the powers and functions of this Court are subject to the amended provisions of Part 8 of the Act. The decision is a privative clause decision as defined in s 474(2) and 3(b) of the Act. Section 474(1) provides that: "A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called into question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account."