S409 of 2003 v Minister for Immigration
[2006] FMCA 1049
•29 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S409 of 2003 v MINISTER FOR IMMIGRATION & ORS | [2006] FMCA 1049 |
| MIGRATION – Review of Refugee Review Tribunal decision – review of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Migration Act 1958 (Cth), ss.91X, 427, 426, 430, 440, 476, 477 |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Davis v Minister for Immigration [2004] FCA 686 Minister for Immigration v Guo & Anor (1997) 191 CLR 559 Minister for Immigration v Jia [2001] HCA 17 Minister for Immigration v Yusuf (2001) 206 CLR 323 Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 NAHI v Minister for Immigration [2004] FCAFC 10 Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 SCAA vMinister for Immigration [2002] FCA 668 Tinshwe v Minister for Immigration [2000] FCA 988 Tran v Minister for Immigration [2002] FCA 1522 VBAF vMinister for Immigration (2003) 131 FCR 102 WABC of 2002vMinister for Immigration [2002] FCAFC 286 Yit v Minister for Immigration [2000] FCA 885 |
| Applicant: | APPLICANT S409 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL |
| Third Respondent: | R WITTON, MEMBER OF THE REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2277 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 23 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Hindi interpreter |
| Advocate for the Respondents: | Ms A Nanson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application filed on 16 July 2003 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2277 of 2005
| APPLICANT S409 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL |
Second Respondent
| R WITTON, MEMBER OF THE REFUGEE REVIEW TRIBUNAL |
Third Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by a draft Order Nisi filed in the Sydney Registry of the High Court of Australia, No. S409 of 2003, on 16 July 2003. The applicant seeks constitutional writs and an injunction against the decision of the Refugee Review Tribunal (“the Tribunal”) made on 17 May 1999, being a decision affirming the decision of a delegate of the first respondent made on 4 September 1997, refusing to grant the applicant a protection visa.
On 10 November 2003, by order of Heydon J, the proceedings were remitted to the Sydney Registry of the Federal Court of Australia, in proceedings NSD2257 of 2003. On 5 October 2005, Emmett J made orders transferring the matter to the Federal Magistrates Court of Australia.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “Applicant S409 of 2003”.
Background
The Tribunal decision of Ron Witton (reference N97/19617) made on 17 May 1999 provides the following background information. The applicant, a citizen of India, arrived in Australia on 8 March 1997. On 2 April 1997, he lodged an application for a protection visa with the Department of Immigration under the Act. On 4 September 1997, a delegate of the Minister refused to grant a protection visa and on
1 October 1997, the applicant sought review by the Tribunal of the delegate’s decision.(Tribunal decision, p.2)
In his primary visa application, the applicant stated that he was Muslim, his life was in danger and that at any time he could be killed by Hindu fanatics. He stated that he was involved with an Islamic organisation in Gujerat that defended Muslim rights in India. As a result, he became the target of a Hindu fundamentalist party. He stated that the continued persecution, oppression and harassment from Hindu fanatics compelled him to leave his country. Also he believed that if he were to return he could not live peacefully in any part of India without fear of attack by Hindu fanatics. He particularly feared Shiva Sena, the Bharatiya Janata Party (“BJP”) and superstitious Hindus.
He stated that he was born and lived in Gujerat where he worked as an electrician. He went to South Africa from April 1994 to April 1995 for employment and “at the same time” to avoid “agitation” from Hindu fanatics. He left for Australia in March 1997. In support of his application for review, he submitted a letter dated February 1999 from the Gujerat State Jamiyate Ulama stating that the applicant was a social worker and a “leading person of Muslim society” and one of the “leaders” of Muslim society for at least 10 years. The letter also stated that the applicant gave time and money to social work and “(w)e hope and trust that he will perform such types of services in the future also”. No mention was made of any difficulties suffered by the applicant.(Tribunal decision, p.4)
Tribunal’s Findings and Reasons
The written submissions on behalf of the first respondent prepared by Ms Nanson indicate that the Tribunal considered the claims made by the applicant, together with relevant independent information attained by the Tribunal and provided by the applicant. In relation to the applicant’s fear of persecution on the basis of his religion, the Tribunal noted that there was religious freedom in India but accepted that there was also inter-religious violence. However, the Tribunal went on to note that from the country information before it, both State and Federal governments in India took “active steps to put an end to communal violence”. Accordingly, the Tribunal found that the applicant’s fear on this basis was not well-founded.(Tribunal decision, p.8)
In relation to the applicant’s second claim, the Tribunal accepted that he had engaged in social work assisting Muslims but was not satisfied that those activities led to his persecution by Hindu fundamentalists as claimed. In any event, “…in light of the applicant’s own evidence of the commitment of the Indian state and national governments to suppress communal violence”, the Tribunal found that the Indian government was “…willing and able to provide protection to the applicant.”(Tribunal decision, p.9)
Application for Review of the Tribunal’s Decision
The Order Nisi application to the High Court contained the following grounds:
a)the third respondent did not follow the proper procedure as required by the Migration Act 1958. Thus, the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed.
b)the third respondent’s decision was affected by an ‘error of law’ and ‘Jurisdictional error’ and lack of procedural fairness.
c)there was no evidence or other material to justify in making of the decision.
d)the applicant was denied natural justice in being denied a reasonable opportunity to be heard on his application before the first respondent.
e)there has been a constructive failure of jurisdiction by the first respondent’s decision of 4 September 1997, failed to address the correct legal question committed to him by not applying himself to all of those issues he was required to consider in determining the matter before him.
f)there was a failure of the first respondent’s agent to exercise his jurisdiction in the decision of 4 September 1997 because he did not reach a state of satisfaction based upon a correct understanding of the law on which he acts.
g)the decision of the first respondent’s agent of 4 September 1997 was made in breach of rules of natural justice.
Reasons
The applicant in these proceedings was self-represented and appeared with the assistance of a Hindi interpreter. The grounds contained in the original application for Order Nisi are vague and unparticularised. The applicant has filed two affidavits in these proceedings:
a)Filed in the High Court of Australia on 16 July 2003, which sets out a brief chronology of the proceedings and an application in respect of the time limit for filing of proceedings. Attached is a statutory declaration which also addresses the chronology of events and time limits, together with the decision of the delegate and the Tribunal decision.(Annexures A and B respectively)
b)Filed in the Federal Court of Australia on 6 December 2004. This document can be divided into two distinct parts. The first section sets out the factual background to the proceedings, the issues that arose in the Tribunal, the grounds of complaint in respect of that decision and the reasons why those grounds are sufficient to justify the granting of an Order Nisi. The second part is a document that is in wide circulation and appears in a number of applications and submissions to this Court. The contents are not directly relative to these proceedings, but canvass a range of issues covering bad faith and breach of the rules of natural justice, which are supported by reference to the major authorities in this area of law.
The applicant also filed written submissions in this Court dated 28 October 2005. The applicant indicated at the hearing that he did not wish to make oral submissions and would rely entirely on the written submissions of 28 October 2005. There does not appear to be any correlation between the applicant’s written submissions and the original grounds, other than in a very general sense. They are a claim of breach of the rules of natural justice and a suggestion that the Tribunal member did not observe the requirements of the Act. In order to deal with the application for review, I will address the issues raised in the written submissions as they are more specific than the grounds listed in the application for an Order Nisi.
As the Tribunal decision was made on 17 May 1999, I will treat the sections of the Act that are raised by the applicant as falling under the old Part 8, that operated until 4 October 2001.
The first submission states:
The tribunal in its decision failed in its written statement that a breach of the rules of natural justice, therefore it raises the ground under section s477, s426 and s427 of the Migration Act 1958.
Section 477 of the Act at the relevant time applied to applications in respect of failure to make a decision. Section 426 states that “applicants may request the Refugee Review Tribunal to call witnesses”. Section 427 refers to powers of the Tribunal. In the absence of any particulars or evidence, it is not apparent that any of these sections apply to the Tribunal decision for the applicant. Without being able to establish how these sections were not complied with, it is not possible to identify any breach of the rules of natural justice.
The second submission states:
The tribunal failed to internalise the circumstantial grounds of the review application and in weighing both the subjective and objective claims of the review application and in reviewing the huge supporting facts and documents, and as such has breached section s426(2), s426(3), s427(4) and s 440(2)(b) of the Act.
It is for the Tribunal member to determine what sources of independent country information he/she will rely upon and the relative weight which is given to each piece of that material: NAHI v Minister for Immigration [2004] FCAFC 10. Sections 426(2) and 426(3) relate to the calling of witnesses. As indicated at [13] above, there is no evidence before the Court in respect of witnesses. Section 427(4) also refers to the summonsing of people to appear before the Tribunal, but in the absence of any evidence, the relevance of this claim is not apparent. Section 440(2)(b) concerns the restriction of publication or disclosure of certain material. The claim is not apparent in the absence of material alleging such a breach by the Tribunal, especially the claim that the member did not give appropriate weight to certain material supplied by the applicant.
The third submission states:
The RRT and other judicial authority overwhelmingly depended on DFAT report, which was prepared by Australian High Commission, New Delhi, INDIA. Either prejudiced by the DFAT report or without weighing the supporting documents the RRT Member had taken his decision on the matter earlier. Thus, the review applicant was suspicious about the neutrality of the Member.
This appears to be an allegation of bias against the Tribunal member. Actual bias can be said to exist when a tribunal member’s pre-existing state of mind disables him/her from undertaking, or rendering him/her unwilling, to undertake a proper evaluation of the relevant material before him/her which was relevant to the decision: Minister for Immigration v Jia [2001] HCA 17 (“Jia”) at [35], [71] and [72] per Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ:
71.…Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.
72.The test which was applied both by French J and by the Full Court was orthodox. It accords with the decisions of this Court in Laws v Australian Broadcasting Tribunal and Johnson v Johnson24. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion…
Actual bias may be said to exist when a tribunal member is so committed to a conclusion already formed as to be incapable of giving attention to whatever evidence or argument presented: Jia at [71] and [72].
A party alleging actual bias on the decision-maker’s part carries a heavy onus and the allegation must be clearly proved: Jia at 531. The existence of actual bias may be inferred from facts and circumstances, but caution should be exercised, in the absence of evidence of partisanship or hostility, before inferring actual bias for factual errors or factual reasoning on the part of a tribunal member: Tin Shwe v Minister for Immigration [2000] FCA 988 at [27]; Yit v Minister for Immigration [2000] FCA 885 at [36]. A case of actual bias is seldom made out by reference solely to the reasons for the decision. No inference of bias or prejudice can be drawn from the mere fact that the Tribunal made findings adverse to the applicant in its reasons: VBAF vMinister for Immigration (2003) 131 FCR 102 at [21]; SCAA vMinister for Immigration [2002] FCA 668 at [38]; WABC of 2002vMinister for Immigration [2002] FCAFC 286 at [3].
Apprehended bias exists when a fair-minded lay observer, who is properly informed of the nature of the proceedings, the matter in issue and the conduct of the Tribunal, would reasonably apprehend that the member might not bring an impartial mind to the resolution of the question to be decided: Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 at [27].
The Tribunal decision, which is the only evidence before this Court, does not support this claim. In the absence of transcript material, a more detailed submission or formal evidence, this claim cannot be sustained.
The fourth submission states:
I supplied additional evidences to the tribunal, but unfortunately the tribunal did not pay attention on those additional evidences and used the previous controversial DFAT report and other traditional and structured sources in arriving its decision. Further and in the alternative, if the above documents were referred to by the Tribunal, there is no mention of these documents in the Tribunal’s reasons. This constitutes a breach of section 430(1)(c)(d) of the Act. The above grounds are judicially-reviewable under section 476(1)(a)(e)(f)(g) of the Migration Act.
The relative weight which the Tribunal member gives to any evidence and country information is addressed in submission two. The member is not obliged to refer to every piece of material that he/she has considered but has placed no weight on. However, if the member considered material which has a direct bearing on the decision, then he/she is obliged to refer to it: Minister for Immigration v Yusuf (2001) 206 CLR 323 at [68]. The alleged breach of s.430(1)(c) of the Act, the setting out of findings on any material question of fact, and s.430(1)(d), referring to material on which the findings of fact are based, is not supported by evidence nor apparent from the face of the decision record. The election by a decision-maker not to accept material and consequently make no reference to that material in its decision is not a breach of the relevant provision: Tran v Minister for Immigration [2002] FCA 1522 at [30]; Davis v Minister for Immigration [2004] FCA 686 at [35]. The applicant claims that the above grounds are judicially reviewable under the then s.476(1), (a), (e), (f) and (g) of the Act. That section relatively states:
(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
(b) …
(c) …
(d) …
(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
(f) that the decision was induced or affected by fraud or by actual bias;
(g) that there was no evidence or other material to justify the making of the decision.
Again, in the absence of any particulars, evidence or submissions to identify the alleged errors, they are not readily identifiable. I believe that all of the issues raised under the above sections of the Act at that point in time have been addressed in the paragraphs above.
The fifth and sixth submissions state:
5.I appeal from the decision of DIMIA and Refugee Review Tribunal (RRT). Specifically, the honourable tribunal member failed to find that the DIMIA made ‘error of law’, ‘jurisdictional error’ as well as ‘procedural fairness’ at the time of deciding my matter. The RRT did not follow the proper procedure as required by the Migration Act 1958. Thus, the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed (Muin, Lie’s case).
6.Muin and Lie’s case is perfectly identical with my case and I want to depend on the grounds of Muin and Lie in regards to my application with the High Court of Australia (Muin vs. Refugee Review Tribunal and Lie vs. Refugee Review Tribunal). The finding that the Tribunal’s procedures involved a failure to accord procedural fairness was sufficient to dispose of the matter. If such a finding is rendered irrelevant by the operation of the private clause, then it may be necessary to look further into the observations made by the Court in respect of the procedures it was reviewing. The Tribunal’s letter to the appellant contained a statement, which was identical to the one quoted by Hayne J. in a letter to Mr Muin (see [253] of Muin). Four of the Justices explicitly found that Mr Muin was ‘misled’ by that letter (Gaudron J at [62]-[63], Kirby J at [194], Hayne J at [256] and Callinan J at [305]. Gummow J, by agreeing with the reasons of Hayne J [171], presumably came to the same conclusion. I was the party of Lie Class action.
According to Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (“Muin and Lie”), there are three aspects of procedural fairness that must be satisfied, relevant to this case. First, that the Department of Immigration supplied the “Part B documents” to the Tribunal. Secondly, if the Tribunal was not supplied with the documents, it must inform the applicant and allow him/her a chance to provide documents which contain information favourable to his or her case. Thirdly, if the Tribunal does not possess documents containing adverse information (whether as part of Part B or not), it must bring the substance of that information to the attention of the applicant and allow him/her a reasonable opportunity to respond.
The seventh submission states:
The High Court has jurisdiction in relation to the Refugee Review Tribunal decision under s.39B of the Judiciary Act 1903 (Cth) being a matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. The jurisdiction is co-extensive with the jurisdiction of the High Court under s.75(v) of the Constitution.
This appears to be a non-contentious statement regarding jurisdiction and does not address any issue of error of the decision-maker. I do not believe that this submission requires further attention.
The eighth submission states:
I provided a detail submission and necessary supporting documents in describing his situation, but the RRT Member did not consider those on a ground that this information was not required to establish a refugee status. If this is the case, then what is the rationality in collecting irrelevant information which can jeopardise the decision of tribunal, in fact, in review applicant’s opinion, already jeopardised the decisions of RRT. Although the RRT Member frequently cited in his review decisions that he did not rely on the DFAT report, but it is very simple to understand that all sphere of the review decisions were directly or indirectly influenced by the DFAT report.
The applicant is under an obligation to make out his own case. The only facts that the Tribunal has before it are those alleged by the applicant and contained in the papers provided by him. The relevant facts pertaining to the application need to be supplied by the applicant himself in as much detail as necessary. It is for the applicant to make out his own case: Minister for Immigration v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J. It is for the applicant to persuade the reviewing decision-maker that all of the statutory elements for a protection visa claim are made out. It is then for the Tribunal member to consider which material bears directly on the decision and how much weight to place on that material. However, the Tribunal member is only obliged to refer to material that he/she considers relevant to the decision: Minister for Immigration v Yusuf at [68]. If the applicant were to provide the member with a large volume of material which the member ultimately believes has no relevance or bearing to the decision to be made, then the member does not have to make a direct reference to that material in the decision record. The applicant appears to be re-canvassing the issues raised in the fourth submission above. I do not believe that this ground can be sustained.
The ninth to thirteenth submissions state:
9.I am a citizen of India. I was persecuted because I am a member of particular social group and As a result, I had become the target of ruling governing. I was harassed and was falsely charged. I lacked protection and left vulnerable to persecution in India.
10.My fear of persecution in India is completely related to UN Refugees Convention and Refugees Protocol reasons. My claim is sufficiently consistent with the requirements for a Protection Visa in Australia.
11.I am seeking refugee status because I would be killed if I returned to India as a consequence of my religious believe I am a Muslim minority from India and liberal thinking, which contradicts with the Hindu extremists.
12.I cannot pursue a normal life or access basic rights freedom of thought, movement or communication nor helping religious people. My life has been made miserable because of anti Muslim opponents who exert tremendous influence and control over the community.
13.In this situation, I believe that there were sufficient grounds for the Tribunal to conclude with certainty that my claims and fears are genuine. It is a life or death question for me. In this regard, Chan v Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR at 388 Mason CJ stated ‘…the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns.’ It is submitted that should I return to India I would suffer some significant detriment or disadvantage.
These are restatements of the applicant’s claims and do not raise new issues not previously considered by the Tribunal. None of these paragraphs identify any form of error, let alone jurisdictional error. I do not believe that these statements require any further comment.
The fourteenth submission states:
I believe that there is a lack of procedural fairness in my case, as was in the case of ‘Muin’. I maintain that my case is very much identical to Muin contending a want of procedural fairness in two respects. Muin had been misled into believing that the Tribunal h ad read some information which had been in the Part B documents; and the Tribunal had not drawn to his attention some material adverse to my claims so as I am to enable to comment upon them. It is the first of those contentions, which is relevant here. In Muin’s case the plaintiff was said to have relied upon the assurance in the Tribunal’s letter sent to me (sent before the hearing), to the effect that it had read all of the material relating to his application. This was taken by the members of the Court to include the “Part B” material, but that is no doubt because of the facts agreed as between the parties which included the following: “The Plaintiff believed that the Part B documents were sent to and looked at by the First Defendant in the making of the review on the papers and/or the final decision on the Plaintiff’s protection visa.”
The broad principle in Muin and Lie is summarised at [17] above, which deals with submissions five and six.
The applicant’s fourteenth submission is not made out. He alleges a want of procedural fairness because the Tribunal did not read the Part B documents. The applicant seeks to apply Muin and Lie for the proposition that it was misleading for the Tribunal to send a letter to the applicant saying it had read all of the material, if it had not read the Part B documents. However, the Tribunal in Muin and Lie did not have all of the Part B documents. This is an agreed fact. In the present case, there is no evidence that all of the Part B documents were not supplied; this is not an agreed fact. Further, it is now standard procedure for the Department of Immigration to send Part B documents to the Tribunal. Therefore, the first Muin and Lie point does not apply. Accordingly, the second Muin and Lie point also does not apply.
The fifteenth submission states:
At a factual level, my case differs substantially from Muin but the nature of denial of procedural fairness is very much similar. It is understandable that the letter misled me, or that I would have taken any particular steps had I been told, if it was the case, that the Tribunal had not been provided with t hem. It was submitted that the Part B documents could be seen to relate to my case and the findings of fact in Muin made out. I was affected by the Tribunal’s adverse material, which information was contained in the Part B documents and the issues in my case. It was assumed that I would have taken any particular course had I known that the Tribunal had not been provided with the documents, or did not intend to refer to them. It was not explained by the Tribunal how that might be concluded by reference to the contents of the Part B documents.
The principles in Muin and Lie are addressed at [17] above. The applicant’s fifteenth submission is not made out. It alleges that there were adverse materials in the Part B documents that the Tribunal did not alert him to. This goes to the third point in Muin and Lie. The newspaper articles considered by the Tribunal can be construed as adverse materials. However, there were not contained in Part B. Even if they were, the material was submitted to the Tribunal by the applicant himself. Further, the information contained in those articles was general country information rather than information specific to the applicant (see the affidavit of Angela Nanson, Annexure C). Thus, Muin and Lie is not applicable to the present case.
The sixteenth to eighteenth submissions state:
16.I also believe that the Federal Court has a jurisdiction in relation to the Refugee Review Tribunal decision under s.39B of the Judiciary Act 1903 (Cth) being a matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. The jurisdiction is co-extensive with the jurisdiction of the High Court under s.75(v) of the Constitution. In Walton v Phillip Ruddock MIMA [2001] FCA 1839 Merkel J cited Darling Casino Ltd. NSW Casino Control Authority (1997) 191 CLR 602 Gaudron and Gummow JJ observed at 633: “The terms of s.75(v) would be defeated if a privative clause operated to protect against jurisdictional errors being refusal to exercise jurisdiction, or excess of jurisdiction, in the latter case whether by reason of the constitutional invalidity of the law relied upon or the limited terms of the valid law.
17.The Tribunal’s decision, being a privative clause decision, is subject o the constraints on review imposed by s.477 and s.474(1) Migration Act 1958. The section operates in accordance with the dictum of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615. The effect of the clause is that a decision in fact made by an administrator will fall within the jurisdiction of the administrator provided. As stated: “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.”
18.The Tribunal’s ignoring of relevant evidence and its finding in the face of contradicting independent evidence constitutes jurisdictional error being a breach of procedural fairness - which is an essential condition of the exercise of the decision making power and attracts s.39B Judiciary Act 1903 as per Gaudron J in Abebe v Commonwealth (1999) 162 ALR 1 at 33 paragraph [113]. Thus, it is subject to the operation of discretionary factors, breach of procedural fairness, jurisdictional error and error of law. I am a genuine refugee under the UN Convention and sub-class 866 of the Migration Act 1958, but the authority has not considered my claims and I have been refused to remain in Australia permanently.
These are further statements of the principles which do not identify any jurisdictional error.
The grounds contained in the original Order Nisi, set out at [9] above, do not raise any issue that has not been addressed in my considerations of the submissions. All are general in nature and none are particularised. I do not believe that any of the grounds contain sufficient detail to identify jurisdictional error in the Tribunal decision.
Conclusion
The applicant appeared at the hearing as a self-represented litigant, which places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. Counsel for the respondents assisted the Court with written submissions which were supplemented by oral submissions in respect of the further amended application. It would appear that the applicant obtained his draft Order Nisi and submissions from different sources without co-ordinating the material. Neither document relates directly to the Tribunal decision or the issues that arise from it. I am satisfied that none of the grounds identified can be sustained. Neither is it apparent that any other ground of review exists that suggests the Tribunal made a jurisdictional error in its decision-making process. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 21 August 2006
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