FEDERAL COURT OF AUSTRALIA NAAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1194 MIGRATION – application for judicial review – application purported to be made under repealed provision of Migration Act 1958 (Cth) – application referred to repealed grounds of review – whether application invoked jurisdiction of Court under s 39B(1) of Judiciary Act 1903 (Cth) MIGRATION – privative clause decision – whether decision of Refugee Tribunal infringed Hickman conditions – whether decision of Refugee Review Tribunal infringed inviolable condition, jurisdictional factor or structural element of Migration Act 1958 (Cth) Migration Act 1958 (Cth) s 474 and s 477 Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Judiciary Act 1903 (Cth) s 39B(1) NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, followed NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294, followed NAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 at [59], referred to R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, referred to APPLICANT NAAJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1432 of 2001 STONE J 26 SEPTEMBER 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1432 OF 2001 BETWEEN: APPLICANT NAAJ APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: STONE J DATE OF ORDER: 26 SEPTEMBER 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The notice of objection to competency filed 11 December 2001 be dismissed. 2. The applicant be granted leave to file an amended application with supporting affidavit of Mr Simon Diab sworn 16 April 2002. 3. The amended application be dismissed. 4. The applicant pay 50% of the costs of the respondent. 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 1432 OF 2001 BETWEEN: APPLICANT NAAJ APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: STONE J DATE: 26 SEPTEMBER 2002 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant is a citizen of Lebanon who arrived in Australia on 28 May 1999. He applied for a protection visa on 7 January 2000. A delegate of the respondent Minister refused his application on 17 March 2000. On 19 September 2001, the Refugee Review Tribunal ("Tribunal") handed down a decision affirming the Minister's decision. On 17 October 2001, the applicant commenced proceedings in this Court seeking a review of the Tribunal's decision. the relevant claims 2 The applicant claimed to have a well-founded fear of persecution in Lebanon because of his ethnicity, political opinion and religious beliefs. In challenging the Tribunal's decision the applicant has alleged error only in the Tribunal's assessment of whether, if the applicant was returned to Lebanon, he might suffer persecution within the meaning of the Convention Relating to the Status of Refugees 1951 ("Convention") because of his political opinion. It is therefore not necessary to detail the other claims made by the applicant, or the findings made by the Tribunal, in respect to the claims based on the applicant's ethnicity and religion. 3 The Tribunal accepted that the applicant, an Armenian Christian citizen of Lebanon, was an active and continued supporter of the Lebanese Forces and opposed the Syrian presence in Lebanon. The Tribunal described the Lebanese Forces as, "the major Christian militia during the civil war [in Lebanon] (1975 – 1990) who officially disarmed in 1991 in accordance with the Ta'if Agreement and were subsequently outlawed in 1994 following allegations of continued terrorist activity". The Tribunal was also prepared to accept that: "the applicant may have suffered harm in the past as a result of the violence and brutality of the civil war in Lebanon. … that the applicant's brother-in-law was imprisoned and tortured for [Lebanese Forces] activities, that his sister and her family was wanted by the Hizbollah and other extremists and by the [other] authorities, that the applicant was detained and questioned in 1985-1986, that the applicant was treated harshly and looked at suspiciously at checkpoints, and that he had difficulties finding work." 4 The Tribunal also accepted independent evidence which indicated that "there has been a considerable lessening of tensions in Lebanon in recent years, and that members of the [Lebanese Forces] face only sporadic harassment and short-term arrest by the Lebanese government." The Tribunal noted that, although media reports had indicated a growing level of opposition to the Syrian presence and that people were detained for such opposition, "the sentences being imposed by the courts on those previously detained have, according to the reports, not been particularly severe in that they report one defendant being sentenced to seven days jail and of the other defendant in fact being freed." 5 The Tribunal also accepted the independent evidence of continuing efforts by the Lebanese government to integrate members of the Lebanese Forces, and Christians generally, into Lebanese society. While the Tribunal accepted that there was widespread opposition to the Syrian presence in Lebanon, only "relatively minor sentences" had been imposed on those detained for this opposition. This led to a finding by the Tribunal that "the applicant's political opinion would, upon return to Lebanon, not give rise to a real chance he would face treatment amounting to persecution for the purposes of the Convention." The present application – jurisdiction to review 6 An application for review of the Tribunal's decision was filed in this Court on 17 October 2001 by the applicant's solicitor. It referred to a ground of review that is no longer available to the applicant under the Migration Act 1958 (Cth) ("Act") because of amendments to the Act effected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) commencing on 2 October 2001. It is disturbing that such a document appears to have been prepared and filed in ignorance of those amendments by a solicitor apparently professing some expertise in the area of migration law. 7 Consequent on those amendments, the Tribunal's decision is a privative clause decision as defined in s 474(2) of the Act. Such decisions are final and conclusive and not open to judicial review; s 474(1). Since the amendments to the Act, the sole source of this Court's jurisdiction to review decisions of the Tribunal is s 39B(1) of the Judiciary Act 1903 (Cth) ("Judiciary Act"); NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 ("NAAV"). 8 On 11 December 2001, the respondent filed a notice of objection to the competency of this Court to review the matter on the ground that, inter alia, the section of the Act referred to in the application was not a source of any jurisdiction for the Court to review the Tribunal's decision. At the hearing counsel for the applicant, Mr Young, sought leave to file an amended application to bring the application under s 39B of the Judiciary Act, together with two affidavits in support sworn by the applicant's solicitor. Counsel for the respondent, Mr Lloyd, argued that an amended application would, in reality, be a new application for the purposes of the Act and therefore would be outside the 28 day period for making such an application prescribed by s 477(1) of the Act. If correct this would mean that the application is incompetent as the Court is not entitled to extend this period or to make any order that would have such an effect; s 477(2). Mr Lloyd supported his submission with reference to the decision in NACA v Minister for Immigration and Multicultural Affairs [2002] FCA 63. 9 Mr Lloyd's submission as to the effect of an amended application depended on his submission that the original application, filed on 17 October 2001, did not invoke the Court's jurisdiction being accepted. Mr Lloyd conceded that, in accordance with such cases as Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155, if the original application could be characterised as an application for relief under s 39B(1) of the Judiciary Act then the application could be amended despite the expiry of the 28 day period. 10 At the hearing of the matter I reserved my decision on this question and the hearing proceeded on the basis of the amended application. Subsequently, this question has been considered by the Full Court in NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294 ("NABM"). In NABM the Full Court found that an application which referred to the repealed provisions of the Act did not deprive the Court of jurisdiction, provided that the initiating process claimed relief of a kind that could be granted pursuant to s 39B(1) of the Judiciary Act. The Full Court stated, at [14]: "In our view, whether an application invokes the jurisdiction of the Court conferred by s 39B(1) of the Judiciary Act is a matter of substance not form. In this case, the initiating process, although not framed in terms of a writ of mandamus or prohibition or an injunction, sought relief of a kind that is available only under s 39B(1) of the Judiciary Act. Moreover, the application clearly identified the decision challenged by the appellant. That decision could only be challenged in this Court pursuant to s 39B(1) of the Judiciary Act. In these circumstances, the jurisdiction of the Court was properly invoked and the primary Judge had jurisdiction to consider the appellant's challenge to the Tribunal's decision. It follows that we do not think that the decisions in NACA v Minister … should be followed." 11 As was the case with the originating process in NABM the original application in this matter clearly identifies the decision that is sought to be challenged and seeks orders of a kind that the Court is only entitled to make in the exercise of its jurisdiction under s 39B(1) of the Judiciary Act. The respondent's notice of objection cannot, therefore, be upheld. I would therefore dismiss the respondent's notice of objection to competency and allow the amended application together with the supporting affidavit of the applicant's solicitor sworn 16 April 2002. amended application 12 The amended application claims writs of certiorari, mandamus and prohibition in respect of the Tribunal's decision but does not in fact refer to any grounds for relief. The amended application states that the grounds for relief are to be found in the affidavit of the applicant's solicitor sworn on 4 February 2002. At the hearing it was confirmed that the amended application should instead refer to an affidavit of Mr Diab sworn on 16 April 2002. That affidavit states that the grounds upon which the applicant seeks orders under s 39B of the Judiciary Act are: "1. The [Tribunal] made jurisdictional error by failing to apply the Refugee Convention as amended by the Refugees Protocol to the application in question. 2. The [Tribunal] made jurisdictional error by misdirecting itself as to the nature of persecution under Article 1A(2) of the Convention. 3. The [Tribunal] made jurisdictional error in that the Tribunal made an error of law in its construction of Australia's protection obligations under the Convention and Sections 36(2) and 65(1) of the Migration Act 1958." 13 Although three grounds were identified in the affidavit of Mr Diab it is clear, as indicated in [2] above, that the gravamen of the applicant's complaint is the Tribunal erred in its conclusion that the applicant's political opinion would not result in him being persecuted if he returned to Lebanon. Counsel for the applicant, Mr Young, argued that the Tribunal's error was a jurisdictional error of the kind described by the High Court in Craig v South Australia (1995) 184 CLR 163 at 179 ("Craig") and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351, namely that the Tribunal "was clearly wrong in law in its interpretation of what constitutes the harm threatened for the purposes of the persecution." Mr Young argued that the Tribunal had found that sporadic harassment, short-term arrest and "relatively minor" or not "particularly severe" sentences of imprisonment, do not amount to persecution for a Convention reason. Mr Young argued that this error meant, in effect, that there was no privative clause decision for the purposes of Pt 8 of the Act. It was said that the privative clause does not, therefore, protect the decision made by the Tribunal and that the Tribunal's decision is susceptible to the relief claimed under s 39B(1) of the Judiciary Act. 14 Mr Lloyd, counsel for the respondent, submitted that whether or not particular harm constitutes persecution is a question of fact and degree for the Tribunal. Mr Lloyd referred to decisions in Saha v Minister for Immigration & Multicultural Affairs [2001] FCA 520 at [57] – [59] and Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 in support of his submission. The question of whether the treatment that could await the applicant was treatment amounting to persecution for the purposes of the Convention was therefore said to be a matter within the Tribunal's jurisdiction. Even if this was not the case, Mr Lloyd submitted that because the decision was a privative clause decision, and in the absence of any of the so-called Hickman grounds, the application should be dismissed. PRIVATIVE CLAUSE 15 Mr Lloyd's submissions are plainly correct. Whether or not the Tribunal erred in finding that the treatment the applicant could suffer on his return did not amount to persecution for the purposes of the Convention, the applicant cannot succeed in his application for a review of the Tribunal's decision. 16 As indicated in [7] above, the Tribunal's decision is a privative clause decision within the meaning of s 474(2) of the Act. The effect of s 474(1) of the Act was considered by a five member Full Court in NAAV where the majority held that the effect of s 474(1) was to expand the jurisdiction of relevant decision makers under the Act, including the Tribunal, so that a decision affected by irregularities that would, in the absence of s 474(1), amount to jurisdictional error will be within power, subject to satisfying the so-called Hickman conditions; at [630], [635] – [636] per von Doussa J, with whom, on this point, Black CJ and Beaumont J agreed. A Tribunal decision containing a jurisdictional error of the type described by the High Court in Craig would thus be validated by s 474(1) of the Act; per von Doussa J at [639]; see also NAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 at [59]. The Full Court in NABM also noted, at [24], that it followed from the reasons of the majority in NAAV "that a decision will not be protected from judicial review if it contravenes what is variously described as an "inviolable" condition, "jurisdictional factor" or "structural elements" found in the [Act]". 17 The Hickman conditions (as derived from R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598) referred to above may be formulated in interrogatory form as follows: · was the Tribunal's decision made bona fide? · was the Tribunal's decision related to the subject with which the Act deals? · was the Tribunal's decision reasonably capable of reference to the power possessed by the Tribunal? I do not need to explore in detail any of the above questions. It is clear that in this matter all three questions must be answered in the affirmative. There is no question that the authority and powers of the Tribunal had been properly engaged by a valid application made to the Tribunal and the decision was a Tribunal-reviewable decision. Any failure in assessing whether certain treatment could constitute persecution does not constitute an infringement of an inviolable condition, jurisdictional factor or structural element found in the Act. 18 It follows that, even if the Tribunal made a "Craig-like"jurisdictional error, the application cannot succeed. For these reasons the application must be dismissed. The respondent has sought an order for costs. However, given the respondent's notice of objection to competency must be dismissed, the respondent has not been completely successful. It follows, in my opinion, that the respondent should only be awarded 50% of his costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 26 September 2002 Counsel for the Applicant: Mr J R Young Solicitor for the Applicant: Simon Diab & Associates Counsel for the Respondent: Mr S B Lloyd Solicitor for the Respondent: Sparke Helmore Date of Hearing: 16 April 2002 Date of Judgment: 26 September 2002