FEDERAL COURT OF AUSTRALIA
SAAO v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 1326
MIGRATION – application for protection visa – review of decision of Refugee Review Tribunal – whether Tribunal erred in concluding that discrimination in employment and tertiary education did not amount to persecution as defined by the Convention and s 91R of the Act – whether Tribunal failed to independently consider the applicant’s claims – whether Tribunal had a mind closed to the acceptance of the applicant’s claims – whether the Tribunal attempted to review the delegate’s decision in good faith
Judiciary Act 1903 (Cth), s 39B
Migration Act 1958 (Cth), ss 36(2), 91R(1), 91R(2), 418R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 – referred to
Craig v State of South Australia (1995) 184 CLR 163 – referred to
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 - cited
NAAV v Minister for Immigration & Multicultural& Indigenous Affairs [2002] FCAFC 228 - applied
R v Murray; Ex parte Proctor (1949) 77 CLR 387 – referred to
SBAU v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1076 - discussed
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 – referred to
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 – referred to
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 – referred to
Minister for Immigration & Multicultural Affairs v Guo (1997) 191 CLR 559 – referred to
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 - citedSAAO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
S.198 of 2001
MANSFIELD J
30 OCTOBER 2002
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S.198 OF 2001
BETWEEN:
SAAO
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
MANSFIELD J
DATE OF ORDER:
30 OCTOBER 2002
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S. 198 OF 2002
BETWEEN:
SAAO
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
MANSFIELD J
DATE:
30 OCTOBER 2002
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
INTRODUCTION
This is an application under s 39B of the Judiciary Act 1903 (Cth) for an order that the decision of the Refugee Review Tribunal (the Tribunal) given on 5 October 2001 is null and void, and for consequential orders directing the Tribunal to hear and determine the applicant’s application for review of a decision of a delegate of the respondent according to law. The delegate refused to grant the applicant a protection visa, for which he had applied under the Migration Act 1958 (Cth) (the Act). The applicant had applied for a protection visa on 22 April 2001, shortly after his…
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- SAAO v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1326
- Case
- [2002] FCA 1326
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the Tribunal had indeed made jurisdictional errors in its decision-making process, and if so, whether these errors were significant enough to warrant the court intervening in the Tribunal's decision. The applicant argued that the Tribunal had misapplied the definition of "persecution," failed to consider relevant information, and made erroneous conclusions about various aspects of his case. The court was required to determine if the Tribunal's decision was flawed to the extent that it exceeded its jurisdiction or failed to make a bona fide attempt to exercise its decision-making power.
The court, after a thorough examination of the Tribunal's reasoning and the applicant's submissions, concluded that the Tribunal's decision was not affected by jurisdictional errors to the extent claimed by the applicant. The court found that the Tribunal had considered the relevant information and applied the correct legal standards in reaching its decision. The court rejected the applicant's arguments that the Tribunal had misdirected itself on the meaning of "persecution" or failed to properly consider his evidence and independent country information. Consequently, the court held that the Tribunal had not exceeded its jurisdiction or failed to make a bona fide attempt to exercise its decision-making power.
ORDERS:
1. The application is dismissed.
Orders
Orders of the court
1. The application is dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by:
The applicant contends that the Tribunal exceeded its jurisdiction, and refused to exercise its jurisdiction, in reaching its decision. He also contends that the Tribunal, in reaching its decision, did not make a bona fide attempt to exercise its decision making power. The second of those grounds of review invokes one exception to the Hickman principles: R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 as discussed by Dixon J at 616. Clearly that ground of review is directed to avoiding the consequence of the privative clause provision contained in s 474(1) of the Act as the respondent accepts that, despite the apparently unrestricted terms of s 474(1), it must be construed as being subject to the Hickman principles, including the exception that the decision must be made in a bona fide attempt to exercise the decision making power.CONSIDERATION In her thorough and careful submissions on behalf of the applicant, counsel who appeared pro bono publico for the applicant urged that the Tribunal had exceeded its jurisdiction for a variety of reasons. She contended that jurisdictional error is shown if the Tribunal identified a wrong issue, asked itself the wrong question, ignored relevant material, or relied on irrelevant material, and in certain circumstances if it made an erroneous finding or reached a mistaken conclusion, so that the exercise of its power or purported exercise of its power was effected. She relied upon the observations of the High Court in Craig v State of South Australia (1995) 184 CLR 163 at 179, and of McHugh, Gummow and Hayne JJ in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [82] where their Honours said:“ ‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the act suggests that the Tribunal was given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.” The jurisdictional errors which were said to be apparent from the Tribunal’s reasons were:(1)that it misdirected itself as to the meaning of persecution by concluding that the detriments which the applicant had suffered or might suffer in Iran in his education and employment did not amount to persecution, having regard to the observations of McHugh J in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 431 where his Honour said:“The denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason.”(2)that the Tribunal wrongly concluded that the appellant had not satisfactorily explained his revised statements at the hearing about his work history, and that it had erred in rejecting his evidence that he had not engaged only in menial tasks in a shop, about the treatment in Iran of Faili Kurds from Iraq, including that it failed to take into account relevant information from the applicant concerning his work history and relevant independent country information.(3)that the Tribunal erred in concluding that it was not satisfied that the applicant would have been issued with a false Iraqi passport to facilitate his departure from Iran, by failing to have regard to relevant information from the applicant and to independent country information on that topic.(4)that the Tribunal wrongly criticised the applicant for having failed to take appropriate steps to obtain a police clearance certificate, which the Tribunal suspected would reveal that he held Iranian nationality, because it failed to take into account the applicant’s evidence and reached its conclusion adverse to the applicant without any evidentiary foundation for that conclusion; in similar vein, that it erred in not being satisfied that the applicant had discarded his passport and more importantly in concluding that the applicant is not merely a green card holder when it did not explain how the applicant could have obtained a birth certificate which is a pre-requisite for Iranian citizenship when he was not within the categories of those who might obtain such a certificate as disclosed in the country information to which the Tribunal referred; and that its conclusion that the applicant was not merely a green card holder was inconsistent with it accepting that the applicant had not had better employment prospects or educational opportunities, that he was forced to live in cheap rental accommodation and to work in low paid menial tasks, and that he had chosen to leave Iran; it was also part of that contention that the Tribunal’s finding that the applicant had been able to attend a university not open to green card holders was erroneous because it had ignored evidence from the applicant to the contrary and misused independent country information.(5)that the Tribunal erred in concluding that the applicant did not have a well-founded fear of persecution upon returning to Iran by reason of his application for a protection visa in Australia, because it did not consider the consequences for Iraqi nationals of Faili Kurd ethnicity who had fled or left Iran having previously been a green card holder, and did not have regard to relevant country information.(6)that the Tribunal erred in failing to determine whether as an Iraqi Kurd no longer the holder of a green card and having agreed not to return to Iran, if he did so he might face refoulement to Iraq.Those matters attacked the Tribunal’s consideration of the applicant’s claim because it had erred in law in its understanding of the meaning of “persecution” under the Convention, and had made erroneous findings or conclusions about his work history, about the circumstances in which he left Iran, about his status within Iran and its consequences to him including in employment and educational opportunities, about the risk he faces in returning to Iran by reason of his application for a protection visa in Australia, and about the risk of him being refouled to Iraq if he were to return to Iran.