Case: Minister for Immigration and Multicultural and Indigenous Affairs v VWBA [2005] FCAFC 175
Outcome: cited
The appellant submitted that the Tribunal made jurisdictional errors of the kind described in Appellant S395/2002 . His counsel submitted that the applicable principles were summarised by the Full Court (Sundberg, Marshall and North JJ) in Minister for Immigration and Multicultural and Indigenous Affairs v VWBA [2005] FCAFC 175 (' VWBA' ), where Sundberg and North JJ said at [6] that Appellant S395/2002 stands for three propositions (references omitted): '(a) The Tribunal will err if it assesses a claim on the basis that an applicant is expected to take reasonable steps to avoid persecution if returned to his or her country of origin. The Tribunal's task is to assess what the applicant will do, not what he or she should do. (b) If the Tribunal finds that a person will act in a way that will reduce a risk of persecution that would otherwise have been well-founded, the Tribunal must consider why the person will act in that way. If it fails to do so, it commits a jurisdictional error. (c) The Tribunal will err if, having found that a person will act in a way that will reduce a risk of persecution, it does not go on to consider whether the person nevertheless has a well-founded fear of persecution because, despite the conduct that reduces the risk, there is still a real risk that the person will be persecuted.' 52 The Tribunal accepted that the appellant's activities had brought him to the adverse attention of the authorities in the past. It did not, however, go to the next step of asking whether there was a real chance that such adverse attention would continue in future in ways that amounted to persecution, or whether the appellant would modify his behaviour to avoid persecution. Applying the second limb in VWBA (see par [21] above), the Tribunal, by finding that the appellant 'knows and understands the political situation', failed to properly consider why the appellant will modify his behaviour if he returns to Burma. Nowhere has the Tribunal asked itself why it has reached the conclusion that the appellant will not act in such a way in the future as to bring himself to the adverse attention of the authorities. 53 I have therefore concluded that the Tribunal failed to consider the real question it had to decide. I am also satisfied that Phipps FM erred in law in the findings he reached, and in the conclusion that there was no reviewable error in the Tribunal's decision. 54 Section 474(1) of the Migration Act 1958 (Cth) (' Migration Act ') provides that a 'privative clause decision' is final and conclusive and must not be challenged, appealed against, reviewed, quashed or called into question in any court and is not subject to prerogative writs in any court on any account. Section 474(2) defines a 'privative clause decision' as a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under the Migration Act or under a regulation or other instrument made under the Migration Act (whether in the exercise of a discretion or not), and subject to the exclusions in subss (4) and (5). A reference to a 'decision' in s 474 includes the matters listed in s 474(3).