NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 596

FEDERAL COURT OF AUSTRALIA

NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 596

APPLICANT NADH OF 2001 & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1653 of 2001

WHITLAM J
12 MAY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1653 of 2001

BETWEEN:

APPLICANT NADH of 2001
FIRST APPLICANT

APPLICANT NADI of 2001
SECOND APPLICANT

APPLICANT NADJ of 2001
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

WHITLAM J

DATE OF ORDER:

12 MAY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application is 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
NEW SOUTH WALES DISTRICT REGISTRY	N 1653 of 2001

BETWEEN:

APPLICANT NADH of 2001
FIRST APPLICANT

APPLICANT NADI of 2001
SECOND APPLICANT

APPLICANT NADJ of 2001
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	WHITLAM J
DATE:	12 MAY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This application for writs of mandamus and certiorari in respect of a decision of the Refugee Review Tribunal made on 4 December 2001 refusing to grant protection visas to the applicants was remitted for further hearing by a Full Court. My original judgment dismissing the proceeding ([2002] FCA 991) was set aside in light of the subsequent decision of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. In remitting the proceeding, the Full Court did not give any directions with respect to the further hearing. No additional evidence was received at that hearing, but the application was amended to set out further particulars relied on in support of one of its grounds. The Full Court’s reasons make it plain that my task is to consider whether the Tribunal’s decision was infected by jurisdictional error so as not to be protected by s 474 of the Migration Act 1958 (‘the Act’).  These reasons should be read together with my earlier reasons for judgment.

2. The adult applicants claimed that, were they to return to China, they would suffer persecution on account of their religious belief and their status as the parents of two children.  The subjective element of the Convention definition of ‘refugee’ was decided adversely to the applicants, so far as the Convention reason of religion was concerned, by the Tribunal’s finding that they were not Catholics.  However, the Tribunal went on to give further reasons for not accepting specific claims.  These included the claim that the applicants feared persecution for contravening China’s one-child policy.  In not accepting this claim, the Tribunal did not identify any particular social group of which the applicants claimed to be members and, as the way in which the Tribunal expressed its conclusion addressed the subjective element of the Convention definition, it must be taken to have been dealing once more with the Convention reason of religion.

3. The grounds of the present application do not mention, in terms, jurisdictional error. They use the familiar language of some of the grounds specified in s 5 of the Administrative Decisions (Judicial Review) Act 1977.  It should be noted that it was, however, not contended that the Tribunal erred in failing to consider whether the applicants were members of ‘a particular social group’ for the purposes of the Convention.  This is hardly surprising.  Such a contention would have been doomed to fail: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225. Counsel for the applicants was thus faced with the difficult situation of having to confront the fact that the Tribunal disbelieved the adult applicants’ core claim that they were Catholics.

4. Since its judgment in Plaintiff S157/2002, the High Court has considered the concept of jurisdictional error in decision-making under the Act in a number of cases, although none of them has involved a privative clause decision made by the Tribunal. Counsel for the applicants relied on what McHugh and Gummow JJ said about errors of fact and jurisdictional error in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1175-1176 ([53]-[60]).

5. In my earlier reasons for judgment I was critical of the way in which the Tribunal catechized the applicant husband and assessed certain documentary material in reaching its finding that the adult applicants were not Catholics.  Counsel for the applicants drew attention to what the Tribunal also said about other subjects, such as the availability of Chinese passports and the timing, content and detail of the applicants’ successive statements.  He submitted that the Tribunal’s reasons on these matters were as flawed as its reasons for rejecting the applicants’ claims to be Catholics.  Counsel drew on what the Full Court said in WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597 at 609 ([55]) to submit that the Tribunal’s conduct gave rise to the perception that its findings had been moulded to support a particular conclusion. I reject that submission. Whatever the strength of the criticism that may be expressed about the Tribunal’s reasons, its conclusions were not ‘arbitrary and unreasoned’ nor ‘unsupported by a scintilla of material’.

6. The statement of McHugh and Gummow JJ in Applicant S20/2002 was concerned with ‘jurisdictional fact’.  In this area of discourse that may be a somewhat awkward concept.  However, in the present context that fact is the applicants’ claim to be Catholics.  The jurisdictional fact is not that the applicants are Catholics.  (In any event, there is no evidence before me upon which I could make a finding on such a question.)  The link between jurisdictional error and the claim has since been explained by McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 78 ALJR 180 at 190-191 ([55]-[60]), although their statement may be obiter because the appeal was disposed of by reference to s 476(1)(e) of the Act as it stood at the relevant time. Nonetheless, in order to avoid jurisdictional error, it is clear that the Tribunal must consider the right question. That depends on the way a claim is put: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 per Gleeson CJ, Hayne and Heydon JJ at [14], [17], [28] and [29]. In this case the Tribunal plainly addressed the question posed by the applicants’ claim. It was not bound to accord more weight to the knowledge of Catholic doctrine demonstrated by any particular answers of the applicant husband to its questions. The grounds advanced under the headings of irrelevant considerations, relevant considerations, lack of authority and unreasonable finding of jurisdictional fact are not made out to establish any jurisdictional error. In my view, the Tribunal has not misconceived its role under the Act.

7. The other grounds of the application rely on procedural requirements under the Act and the rules of natural justice. There may be uncertainties about the boundaries of jurisdictional error in relation to the requirements of the Act, but the doctrinal waters are much clearer in relation to procedural fairness generally: Re Minister for Immigration and Multicultural Indigenous Affairs; Ex parte Palme (2003) 77 ALJR 1829 at 1835 ([36]) and 1836 ([43]).

8. As I mentioned in my earlier reasons, a transcript of the Tribunal hearing is in evidence.  The Tribunal heard from the husband in the absence of the wife.  Counsel for the applicants submitted that the transcript shows that the applicant husband was unfairly stopped from saying all that he wanted to say in support of his claims.  When the applicant wife appeared, the transcript reads as if the applicant husband remained in the hearing room.  In any event, a migration agent (who was also a solicitor) representing both of them was present throughout the hearing.  Counsel submitted that the Tribunal was also bound to give the applicant wife ‘particulars … of the information which the applicant husband gave … in answer to its questions about Catholic doctrine.’

9. It was submitted that the Tribunal failed to observe the requirements of s 425 and s 424A of the Act. I reject that submission. The applicant husband was invited pursuant to s 425 of the Act to appear before the Tribunal, and he did appear. The answers given by the applicant husband about his knowledge of Catholic doctrine do not constitute information about his applicant wife, and s 424A did not apply to those answers.

10. At the time the rules of natural justice applied generally to the review by the Tribunal.  Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909 provides useful guidance in the present case, where the Tribunal also revealed scepticism about the applicants’ claims and gave leave to file further written submissions. Here, too, the applicants utilized that leave. Ms Tong’s subsequent submission and the enclosed letter from Father Chang make it clear that she was under no misapprehension that the credibility of the applicant wife was not in issue. The applicants were not denied an opportunity to present their cases as they wished. Moreover, it is instructive to note what Gummow and Heydon JJ said in Applicant S154/2002 at 1918 ([54]) about any suggested need for the Tribunal to expose the reasoning process eventually employed by it.  There was no denial of procedural fairness in the present case.  It is not a question whether I might have decided the purely factual question before the Tribunal differently.  I am only concerned with whether there has been jurisdictional error by way of denial of natural justice.

11. Counsel for the applicants also contended that this was a case, like Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982, where it might well be inferred that there was nothing that could be said or done to change the Tribunal’s preconceived view that the adult applicants had fabricated accounts of events upon which to base their applications for protection visas. In my view, apprehended bias is not made out in the present case. I am invited to draw such an inference from the material before the Tribunal, the transcript of the hearing and the Tribunal’s reasons. I am unable to do so. The Tribunal may well have made errors in fact-finding, but that will not demonstrate apprehended bias: Applicant S20/2002 per Kirby J at 1182 ([100]-[101]).

12. The applicants have failed to establish any jurisdictional error. The Tribunal’s decision is accordingly protected by s 474 of the Act. The application will be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:            12 May 2004

Counsel for the applicants:	D H Godwin
Counsel for the respondent:	G T Johnson
Solicitor for the respondent:	Australian Government Solicitor
Date of hearing:	16 September 2003
Date of judgment:	12 May 2004