FEDERAL COURT OF AUSTRALIA WABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1320 MIGRATION – protection visa – judicial review – privative clause decision – appeal from Federal Magistrate - Federal Magistrate affirmed decision of Refugee Review Tribunal – no principle of law. NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 applied APPELLANT WABM OF 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W172 of 2002 CARR J 25 OCTOBER 2002 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 172 OF 2002 ON APPEAL FROM A FEDERAL MAGISTRATE BETWEEN: APPELLANT WABM OF 2001 Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent JUDGE: CARR J DATE OF ORDER: 25 OCTOBER 2002 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 172 OF 2002 ON APPEAL FROM A FEDERAL MAGISTRATE BETWEEN: APPELLANT WABM OF 2001 Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent JUDGE: CARR J DATE: 25 OCTOBER 2002 PLACE: PERTH REASONS FOR JUDGMENT introduction 1 This is an appeal from an order of a Federal Magistrate, made on 14 May 2002, dismissing the appellant's application for review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the respondent to refuse the appellant's application for a protection visa. That application for review had originally been lodged with this Court on 25 October 2001 but was subsequently transferred to the Federal Magistrates Court. The date 25 October 2001 is of significance, because from and after 2 October 2001 any entitlement of the appellant to relief became regulated by the new Part VIII of the Migration Act 1958 (Cth) ("the Act") which severely restricts the circumstances in which either the Federal Magistrates Court or this Court may interfere with decisions of the Tribunal. 2 The appellant is a citizen of Iran who arrived in Australia in December 2000. On 3 May 2001 he applied for a protection visa on the ground that he had a well-founded fear of persecution by reason of his political opinion and by reason of his religious beliefs. The appellant claimed to have converted from Islam to Christianity. On 29 May 2001, a delegate of the respondent refused to grant a protection visa to the appellant. On 1 June 2001 the appellant applied to the Refugee Review Tribunal for a review of that decision. the Tribunal's decision 3 The Tribunal did not accept the substance of the claims put forward by the appellant. It expressed grave doubts about the credibility of his claims, and gave its reasons for those doubts. 4 The Tribunal found that the appellant had been issued with a passport and left Iran legally. It concluded, on the basis of those findings, that the appellant was not of adverse interest to the Iranian authorities when he left Iran. It relied, to some extent, on independent country information in reaching that conclusion. It also noted the time which had elapsed between the incidents about which the appellant complained and his departure from Iran, during which he was not detained. The Tribunal then said this: "After considering all the evidence, the Tribunal does not accept as credible the applicant's claims as to religion and as to a false charge being brought against him by the security manager of his former employer, the post office in Ahwaz, are credible (sic)." 5 The Tribunal then made a series of assessments, on the assumption that there may have been some truth in the appellant's claims. It found, after referring to evidence which again included independent country evidence, that even if the appellant were a genuine convert to Christianity, he would not face a real chance of persecution on the ground of his religion if he returned to Iran. The Tribunal also engaged in an assessment of the situation on the basis that, contrary to its findings, there had been an incident with the security manager of his former employer. Finally, the Tribunal concluded as follows: "After considering the evidence, the Tribunal finds that if the applicant returns to Iran, he will not face a real chance of persecution because of his religion and/or any other Convention reason. After considering all the evidence, the Tribunal finds that if the applicant returns to Iran, he will not have a well-founded fear of persecution for a Convention reason, and he will not face a real chance of persecution for a Convention reason." the federal Magistrate's decision 6 The learned Magistrate correctly observed that the Tribunal's decision was a privative clause decision within the meaning of that expression in s 474 of the Act. He considered that he was only able to review the Tribunal's decision on the bases that the decision: · was not a bona fide attempt to exercise the Tribunal's power; · displayed a constitutional or statutory jurisdictional error on its face; or · that it did not relate to the subject matter of the legislation or was not reasonably capable of reference to the power given to the Tribunal. 7 His Honour held that there was no suggestion in the case that the first or third grounds of review were open. Nor was there any suggestion that the decision displayed a constitutional error on its face. That left, as the only possibility, the possibility that the decision displayed statutory jurisdictional error on its face. His Honour thought that it was open to him to grant prerogative relief if he were able to conclude that the Tribunal's decision, on its face, disclosed a breach of what he described as an essential requirement in the Act. 8 His Honour had regard to the appellant's submission that, contrary to the Tribunal's assessment, he had made claims, at the initial interview conducted by the respondent's Department, about his religion and its connection to the incidents which he said took place between him and the manager at his work. His Honour expressed the view that if the tape-recording of that initial interview backed up the appellant's assertions, then that would be indicative of an error of jurisdiction having been committed by the Tribunal. That would be so, so his Honour reasoned, because the decision of the Tribunal was: "… crucially based upon the inconsistency between what the [appellant] was taken to have said at the initial interview and what he later said when he applied for a protection visa. If that inconsistency could be challenged then the basis for the RRT decision would be critically undermined." 9 The Magistrate listened to the tape-recording of the initial interview, but found nothing on it which supported the appellant's assertion that he had indicated that there was a religious reason for his dismissal from employment. On the contrary, so the Magistrate stated, the tape-recording established that the written record of the interview was accurate. The appellant had stated that his religion was Shi'ite Muslim and had stated, simply and in matter of fact tones, that his employment at the post office was terminated when his contract expired. 10 The Magistrate concluded that there was no basis for him to interfere with the decision of the Tribunal. Accordingly, he dismissed the application. the appeal 11 It would appear that the appellant did not receive assistance from a lawyer in drafting his notice of appeal. The grounds were stated exactly as follows: "The decision makes involved and error of law. The applicant is being and error at law involving an incorrect in to pretation of the applicant law or an incorrect applican of the law to the fact so found by the person who made the decision. There was no evidence of othere metereal to justice the making up the decision. The applicant in raised pursuant of s.476(1)(g) of the migran act 1957. If I return to Iran, the government will kill me and may be completely accedentally. I am appostasy, but not because of that and reasonable by the other crime." 12 After the Magistrate handed down his decision, a Full Court of this Court, comprising five judges, delivered its decision in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228. 13 The majority view in NAAV is reflected in the reasons for judgment of von Doussa J, with whom Black CJ and Beaumont J agreed. NAAV is authority for the proposition that s 474 is to be construed in accordance with the approach taken by Dixon J to a similar privative clause in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, where at 615 his Honour said this of privative clauses: "They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation and that it is reasonably capable of reference to the power given to the body." 14 The authorities show, as a further condition for the validity of the relevant decision, that the purported exercise of power by the decision-maker must not contravene a "final limitation upon the powers, duties and functions" of the decision-maker: see Hickman at 618 and NAAV at [619]. 15 The appellant raised certain matters by way of oral submissions at the hearing yesterday. 16 First, the appellant submitted that the Tribunal and the Magistrate had failed to consider an official letter confirming his baptism and had not considered the fact that according to Islamic law, if a person converted from Islam then such a person could be killed. 17 It is very doubtful, in my opinion, whether, even if this matter were established, it would have the potential to raise any ground of review. 18 But it is clear from the Tribunal's reasons that it had regard to a letter from a Pastor Dolling which was to the effect that the appellant had been a regular attendee at worship and was baptised on 16 September 2001. However, the Tribunal said that it was not satisfied that the appellant had engaged in attending services and had been baptised in Australia otherwise than for the purpose of strengthening his claim to be a refugee. As counsel for the respondent pointed out, the Tribunal was thus applying the provisions of s 91R(3) of the Act. The Tribunal went further and said that it did not accept that the appellant's claimed conversion was genuine. 19 Next the appellant questioned how the Tribunal could conclude that he did not have strong views about Christianity, without knowing his intentions and understanding of religion. In my view, this matter does not relate to any possible ground of review. 20 The appellant then said that the Magistrate, in effect, told him that the matter would "go back" to the Tribunal, but he (the appellant) did not know what had happened. Once again, this point raises no reviewable error. 21 Then the appellant turned to the question of what he had said at the first interview with the respondent's delegate. He asked me to make arrangements for him to listen to the tape so that he could hear "whether I said" the things which he asserted he had said at that interview. The appellant claimed that the Magistrate had not listened to all the tapes of the interview. Once again, in my view, this matter has not raised a possible basis for review. I declined the appellant's request for access to the tapes. As I have mentioned above, the Magistrate listened to the tape-recording of the initial interview, but found nothing on it which supported the appellant's assertion that he had indicated that there was a religious reason for his dismissal from employment. The Magistrate did this on the assumption that if there had been such material on the tape, there might have been jurisdictional error giving rise to a ground of review. I think that, in the light of the decision in NAAV, there is considerable doubt about the correctness of the Magistrate's assumption, in favour of the appellant, in that regard. But it is not necessary to decide that point. 22 The appellant made other submissions relating to factual decisions made by the Tribunal. Those submissions go to the merits of the case. They do not raise any matters which would entitle him to relief in this Court. 23 I have read the Tribunal's decision. In my view, the Tribunal genuinely and thoroughly addressed the question whether it was satisfied that the appellant was a refugee. There is nothing whatsoever to suggest that it gave its decision otherwise than as part of a bona fide attempt to exercise its power. Its decision clearly relates to the subject matter of the Act and it is equally clear that the decision is reasonably capable of reference to the power given to the Tribunal. There is not the slightest indication that the Tribunal may have contravened any final limitation upon its powers, duties and functions. 24 In those circumstances, the Magistrate correctly concluded that the application made to him had to be dismissed. Similarly, I conclude that the appeal to this Court must be dismissed. 25 The order of the Court will be that the appeal is dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr. Associate: Dated: 25 October 2002 The Appellant appeared for himself Counsel for the Respondent: Mr J D Allanson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 24 October 2002 Date of Judgment: 25 October 2002