SZCAQ v Minister for Immigration
[2006] FMCA 229
•24 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCAQ & ORS v MINISTER FOR IMMIGRATION | [2006] FMCA 229 |
| MIGRATION – Review of decision of RRT – whether there has been a breach of s.424A Migration Act 1958 (Cth) – whether the Tribunal misunderstood what the applicant meant by the word “severe” – whether it was that statement or a contradiction in the facts given by the applicant that was the reason or part of the reason for affirming the decision under review – where the Tribunal found that the applicant was not credible as a result of inconsistent statements made by the applicant – whether these statements were actually inconsistent statements – whether the Tribunal made a mistake as to the effect of a foreign law – whether the Tribunal was under a duty to enquire into the content and effect of that foreign law - whether the failure of the Tribunal to take adequate steps to enquire affected the Tribunal’s assessment of the applicant’s credibility – whether the failure to have regard to the terms of the foreign legislation was a failure to take into account relevant material. |
| Migration Act 1958, ss.424A, 422B National Security Act 1980 (India) |
| SZFKL v Minister for Immigration [2005] FCA 931 WAFP v Minister for Immigration [2003] FCAFC 319 |
| First Applicant: Second Applicant: Third Applicant: | SZCAQ SZCAR SZCAS |
| Respondent: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS |
| File Number: | SYG2600 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 01 February 2006 |
| Date of Last Submission: | 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 February 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Parish Patience Immigration |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Blake Dawson Waldron |
THE COURT DECLARES:
The decision of the Refugee Review Tribunal made on 14 October 2003 and handed down on 6 November 2003 is void and of no effect.
THE COURT ORDERS:
The application to the Refugee Review Tribunal made on 31 December 2002 be referred back to the Tribunal differently constituted to be heard and determined according to law.
Respondent to pay the applicant’s costs assessed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2600 of 2003
| SZCAQ |
First Applicant
SZCAR
Second Applicant
SZCAS
Third Applicant
And
| MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
There are three applicants in these proceedings, a husband, wife and son. Although the elder male applicant alleged in his application for a protection visa that his wife had been arrested neither she nor her son made a separate claim for asylum and they were treated by the delegate and the Tribunal as family members. In these reasons for decision references to “the applicant” are to the male applicant. The applicants arrived in Australia on 10 July 2002. On 23 August 2002 they lodged an application for protection (class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs. On 10 December 2002 a delegate of the Minister refused to grant visas and on 31 December 2002 the applicants applied for review of that decision. On 1 August 2003 the Tribunal wrote to the applicant, with a copy to his consultant, a letter headed in the name of all three applicants advising the applicant that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The applicant was instructed to advise the other applicants about the letter and both he and his wife and child were invited to come to a hearing of the Tribunal, to give oral evidence and present arguments in support of their claims. The applicant signed a response to hearing invitation [CB 91] on behalf of all the family members advising that no other family member required a separate hearing and indicating that he would attend. The applicant did attend the hearing. It is not clear from the transcript whether his wife attended.
The applicant, who is a 45 year old karate teacher, born and educated in Delhi, seeks the protection of Australia on the convention ground of political opinion. He claimed to have become an active member of the New India Democracy Movement (“NIDM”) which conducted classes about prominent communist thinkers and activists such as Marx, Lenin and Mao. NIDM distributed a magazine known as “New Culture” which criticised certain Tamil organisations and other Naxalite and Communist parties. The applicant claimed that members of NIDM were regularly subjected to violence and ruthless attacks by members of other parties. The applicant claimed to have been picked up by the police on about eighteen occasions between 1995 and 1998. In February 1998 the applicant was arrested under the National Security Act and spent four months in prison. He was taken back to the Magistrates Court and the term was extended for another six months. In his original application the applicant claimed that in January 2000 both he and his wife were arrested and placed in jail for three months but before the Tribunal he stated that this was incorrect and that the only time his wife had been arrested was whilst he was in the United States in 2001. The applicant had travelled to the United States three times – 1996, 1999 and August to December 2001. It was after he returned from the United States in 2001 and discovered that his wife had been arrested that he decided to leave the country and seek asylum in Australia. He feared that if he and his wife returned to India he would face arrest and imprisonment for his membership of the NIDM.
The Tribunal did not accept the applicant. It says [CB 105] at the commencement of the substantive part of its findings and reasons:
“The applicant gave unsatisfactory evidence to the Tribunal about his membership of an organisation he called NIDM; charges laid against him under the National Security Act; his time in jail; his wife’s arrest; and the reasons he did not apply for refugee status in the USA whilst visiting the USA in 1996, 1999 and 2001.”
The applicant was represented at the hearing by Mr Dobbie, who filed an amended application that made two claims in respect of breaches of s.424A of the Migration Act 1958. These are:
“Particulars
(i)The Tribunal failed to give to the applicants, in writing, particulars of the first applicant’s protection visa application Form 866 Part C, lodged on 23 August 2002, which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review; and failed to ensure, as far as it reasonably practicable, that the applicants understood why it was relevant to the review; and failed to invite the applicants to comment on it:
(a) The Tribunal relied on Part C, Schedule A of the visa application form where no convictions were listed by the first applicant. (CB 105).”
(ii)The Tribunal failed to give to the applicants, in writing, particulars of the first applicant’s statutory declaration lodged with the first applicant’s protection visa application Form 866 (Parts B and C) on 23 August 2002, which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review; and failed to ensure, as far as is reasonably practicable, that the applicants understood why it was relevant to the review; and failed to invite the applicants to comment on it. That information included:
(a) That in February 1998, he was arrested under the National Security Act; sentenced to 4 months in prison; and then taken back to the magistrate’s court where the sentence was extended for a further 6 months. (CB 106)
(b) That in March 1998, the first applicant was picked up by police and detained for 2/3 days (CB 106).
(c) That the first applicant and his wife were arrested in January 2000. (CB 107)
(d) That the first applicant had been arrested approximately 18 times between 1995 and 1998. (CB 107)
The court had not been advised that Mr Dobbie would be appearing. In accordance with its usual practice it looked at the Green Book on the basis that the applicant may have been self represented. The court was concerned at the remarks set out below made by the Tribunal:
“I note that in Part C, Schedule A of the applicant’s primary visa application, no convictions or charges were listed by the applicant. However, in his statutory declaration attached to his primary visa application (at folio 47, and which the applicant told the Tribunal was correct), he stated, inter alia, that in February 1998, he was arrested under the National Security Act; sentenced to 4 months in prison; and then “taken back” to the magistrate’s court where the sentence was extended for a further 6 months. In this statement it is clearly implied that the applicant was tried in a court of law; found guilty of an offence; sentenced by a magistrate; and then had this sentence extended by a magistrate. When the Tribunal asked the applicant why he had been arrested, imprisoned and sentenced in February 1998, the applicant told the Tribunal that it was because he had been distributed (NIDM) magazines which contained articles critical of the government. When the Tribunal pointed out to the applicant that this did not appear to be a criminal offence and asked if he had been charged in connection with his arrest, the applicant’s response was that if the police arrest a person in Delhi, the person is just beaten but (impliedly) not charged. When the Tribunal asked the applicant whether it was then correct to say that he was held in prison for four months (in February 1998) but not charged with any offences, the applicant then said that he had been charged with offences, and, although had not been told about it, “there was something else on the files”. When the Tribunal then said: “So you are telling me that you were held in prison for four months and were charged with offences but were not told about these charges?” The applicant answered: “Yes”. When the Tribunal asked the applicant how he knew he had been charged with offences if he had not been told about them, The applicant did not answer the question, but responded by saying that his wife had been told that he had been arrested under the National Security Act, but that “nothing could be done.”
I find that the applicant’s muddled, evasive, inconsistent and implausible statements and answers to questions asked of him in relation to whether or not he had been charged with any offences under the National Security Act (or any other piece of legislation) indicate that he has never been charged and found guilty of any such offences. Moreover, as I pointed out to the applicant, if he had been fond guilty of, and jailed for, offences under the National Security Act, it is most unlikely he would have been able to subsequently obtained two different USA visas. I do not accept that he was only able to obtain these visas because he taught karate part time at the USA embassy.”
The court was concerned that the Tribunal may have been applying to the provisions of the The National Security Act 1980 (India) a reading which was inconsistent with that Act, and indeed would be inconsistent with many such Acts passed throughout the world to counter terrorism. The Tribunal appeared to be questioning the applicant on the basis that he was required to be charged, tried and found guilty of an offence in order to be imprisoned. Because the Tribunal found that the applicant’s story in relation to being brought before the Magistrates Court and detained did not sit well with such procedures it did not believe him. But the National Security Act 1980 does not require arrest, charge, trial, finding of guilt and punishment by way of detention. It contains at Sections 2 and 3:
“Power to make orders detaining certain persons”:
“2) The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of Public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained.
Explanation.- For the purposes of this sub-section, "acting in any manner prejudicial to the maintenance of supplies and services essential to the community" does not include "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" as defined in the Explanation to sub-section (1) of section 3 of the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980, and accordingly, no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act.
(3) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (2), exercise the powers conferred by the said sub-section:
Provided that the period specified in an order made by the State Government under this sub-section shall not, in the first Instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.”
When the proceedings commenced I advised Mr Dobbie and Mr Reilly of my concerns relating to the Tribunal’s findings and allowed them both time to prepare written submissions. Mr Reilly had not previously seen a copy of the amended application so the submissions were also intended to address the claims found in that document.
The first point that the applicant makes is that the Tribunal breached s.424A Migration Act but failing to give the applicants, in writing, particulars of the first applicant’s statutory declaration lodged with his protection visa application form 866 on 23 August 2002 which the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. Information which it was alleged was included in the statement was that:
a.In February 1998 the applicant was arrested under the National Security Act 1980, sentenced to four months in prison and then taken back to the Magistrate’s court where the sentence was extended for a further six months [CB 106].
b.Then in March 1998 the first applicant was picked up by police and detained for 2-3 days [CB 106].
c.That the first applicant and his wife were arrested in January 2000 [CB 107].
d.That the first applicant had been arrested approximately 18 times between 1995 and 1998 [CB 107].
The Tribunal found:
“When the Tribunal asked the Applicant why, if he had encountered so many problems in India, he had not applied for refugee status in the USA during his 3 separate visits, the Applicant’s response was that at the time of his first two visits to the USA (1996 and 1999), he did not think that he had a severe problem (in India). He said that it was only when his wife has been arrested during his absence, that he started thinking that he had to move his family out of India. This inconsistent statement casts serious doubt on most of the Applicant’s preceding evidence (particularly relating to claims of being jailed in 1998, and being “detained by the police approximately 19 times between 1995 and 1998), and satisfied me that neither the Applicant or his wife were ever members of an organization called (by the Applicant) NIDM; or that either of them distributed pamphlets issued by this vaguely described (by the Applicant) organization or that either of them were ever arrested, or jailed or even questioned by the police about their political activities; or that either of them were of any interest at all to the authorities.
As these matters go to the core of the Applicant’s claims, as I put to the Applicant at the conclusion of the Tribunal hearing, I find that he has no credibility and his claims for refugee status are a complete fabrication.”
The applicant says that the statements should have been put to him because the Tribunal intended to use the claimed detentions as a yardstick to assess the credibility of the applicant’s statement to it that he did not have severe problems in India. The applicant suggest that the Tribunal was under an obligation to point out to the applicant what it was going to consider as a yardstick of the word “severe” so that the applicant could explain what he meant by the word. This seems to me to point up the real problem with the submission. Leaving aside whether the statement was adopted by the applicant and is therefore information given for the purposes of the application to the Tribunal within s.424A(3)(b); SZFKL v Minister for Immigration [2005] FCA 931 AT [7-8]; SZEIE v Minister for Immigration [2005] FCA 987 at [40] and SZERV v Minister for Immigration [2005] FCA 1221 at [11] or whether it was not the statement but the contradiction that was the reason or part of the reason for affirming the decision under review; SZEKY v Minister for Immigration [2005] FCA 1138 at [19-24]; SZBVE v Minister for Immigration [2005] FCA 1325 at [8-10] and SZERV v Minister for Immigration (supra) at [11]. The real issue here is the misunderstanding by the Tribunal of the use of the word serious.
A mistake by the Tribunal as to what the applicant meant by the word serious is a mistake of fact and unless the mistaken fact is a jurisdictional fact there is no jurisdictional error: NABE v Minister for Immigration (No2) [2004] FCAFC 263; NAAV v Minister for Immigration [2002] FCAFC 228. The applicant’s real claim is that the Tribunal has taken a particularly strong view of any inconsistencies that it has found. It has used the existence of the inconsistency to take a very firm view about the applicant’s credibility. Other Tribunals may not have been so hard upon the applicant. If this was an appeal from another court it might be said that the use of the word “severe” in this context did not constitute an inconsistent statement. But that is not what is being dealt with. The Tribunal has interpreted the applicant’s evidence in a way which led it to find that the applicant had little credibility. I do not think I can interfere with such a finding.
The next complaint relates to the findings arising out of the applicant’s alleged arrest under the National Security Act. The applicant argues that the Tribunal relied on a fact that did not exist to draw inferences and make material findings adverse to him. The fact that he says does not exist was that the National Security Act required that a person be charged, tried in a court of law and sentenced. Associated with this is an allegation that the Tribunal failed to take into account a relevant consideration or failed to make necessary investigations. The irrelevant consideration being sections 2, 3 and 13 of the National Security Act. Section 13 provides a maximum period of detention of 12 months.
I have already set out a [4] of these reasons the Tribunal’s reference to the claim concerning the applicant’s detention under the National Security Act. The matters set out there are further illuminated by the transcript at T10-T12:
“Q. Okay. Now, while we are on that page, could you please tell me whether you were arrested in February 1998 under the National Security Act?
A. I didAnd were you put in gaol?
A. They did.Q. Yes?
A. Yes.Q. In February 1998?
A. February 1998, yes, and they took me for about four months there.Q. You were imprisoned for four months there?
A. Yes, please.Q. Just answer the questions I ask you.
A. SureQ. Why were you arrest under the National Security Act?
A. I been distributing the magazines and stuff, and I was already been arrested before sometimes, and –Q. Why was that an offence?
A.(Through interpreter). Because we were writing against the central government and the police.Q. That wasn’t an offence, was it?
A. (Through interpreter). Because we were writing against the central government and the police.Q. That wasn’t an offence, was it?
A. (Through interpreter). Because we were writing something which was personally against them and we did mention about the (inaudible) episode also.Q. You say you were arrested under the National Security Act in February 1998 and imprisoned for four months; is that right?
A. Yes.Q. And were you tried for any offences?
A. (Through interpreter). In Delhi, and in most of the Indian parts, if the police arrest you, they don’t charge you, they start beating you, and they want to show somebody has been arrested.Q. Pardon?
A. And they want to show that someone has been arrested.Q. So you were –
A. And others.Q. So you were arrested, or you were held in prison for four months, and you were not charged with any offences at that time?
A. They told me nothing about it.Q. So the answer is, no, you were not charged with any offences?
A. I been charged with some offences but then told me nothing about it. They have to put something in their files.Q. I am not clear on this. You say you were held in prison for four months, you were charged with offences but you were not told about it, is that what you are trying to tell me?
A. Yes.Q. How do you know that you were charged with offences?
A. Sorry, say that again? (Through interpreter).
Because my wife was trying to get me out and she was told that “He has been arrested under the National Securities Act and nothing can be done.” And we did not have our parents also with us.Q. This is all very strange to me. In you statutory declaration on the same page, just above that, two paragraphs above, you say in March 1998 you were picked up by the police while selling magazines and taken to the local police station. You were detained for two to three days and the released. Is that correct?
A. Yes.Q. Could you tell me how, if you had been arrested in February 1998 and detained for four months, you could then be – you could be arrested and picked up in March 1998 when you were supposed to be already in prison?
A. (Through interpreter). There is a mistake in the dates.Q. Yes.
A. There must be a mistake in the dates. (Through interpreter). There must be mistakes in the dates.Q. Well, what should it be?
A. (Through interpreter). That date must be somewhere in the beginning of ’98.Q. You also say at the bottom of the page that after – in February 1998 you were arrested over the National Security Act, which you have just told me three times is correct and you were sentenced to four months. Then you say something strange. You say, “I was taken back to the magistrates court and the term was extended for another six months.” What do you mean by that?
A. (Through interpreter). My wife was trying to get me released.Q. Pardon?
A. (Through interpreter). My wife was trying to get me released and somehow she had put in an appeal with this magistrate by engaging lawyers.Q. And the term was extended for another six months, so you were in prison for ten months?
A. After that six months.Q. This is not able to be believed, because you just told me before you were imprisoned for four months. Now you are trying to tell me you were imprisoned for ten months.
A. It was four months, then they took me to the magistrate, after he extended in for six months.”
The applicant argues that it was the view of the Tribunal that the National Security Act required him to be arrested, charged, tried in a court of law and sentenced. The respondent argues that this was an implication which arose from the applicant’s own statements. I am of the view that it would only arise from the applicant’s statements in the mind of the person who assumes that the normal “western” procedures would apply. That these are no longer the normal “western” procedures since the passing of anti terrorism legislation in much of the “western” world is not to the point. I am of the view that the Tribunal, not having the benefit of a copy of the National Security Act used terms with the applicant that were more appropriate to a normal criminal procedures than procedures under that Act. The transcript reveals that the applicant tried to explain the situation to the Tribunal that after being arrested under that Act the police do not charge you and you are not tried. He explained that he was told nothing about the “offences” and that when his wife made some enquiries about why he was being detained all she was informed was that he had been arrested under the National Security Act. The regime in Australia for persons who have been detained under the Anti Terrorism legislation is really not very much different to that described by the applicant. Certainly a third party enquiring about a person detained would not have received any information. I do not know what the situation is in India under the National Security Act and it is quite clear that the Tribunal did not. The Tribunal’s attitude may be understandable because the decision was made in 2003 before there was a general awareness of the reach of anti-terrorist legislation. But if the Tribunal had consulted the Act and seen that the applicant’s story was consistent with the terms of the legislation then it might not have taken such a harsh view of his credibility.
A mistake regarding a foreign law is a mistake of fact: Savic v Minister for Immigration & Multicultural Affairs[2001] FCA 1787 at [14]; VHAJ and Others v Minister for Immigration (2003) 131 FCR 80 at [11]. This principle was also clearly stated in Applicants in V 722 of 2000 v Minister for Immigration [2002] FCA 1059 where Ryan J in relation to the question of proof of a foreign law at [32-33]:
“32 It is a trite proposition that the state and effect of the law of a foreign country are questions of fact; see eg. Phipson on Evidence, 15th edn p 974. As such, they are susceptible of proof by expert evidence from a witness suitably qualified to express an opinion about the laws of the relevant foreign State: see eg. Re Duke of Wellington [1947] Ch 506 at 514.
33 However, it is not necessary for a court or tribunal to resort to expert evidence of that kind in order to make a finding as to the effect of a relevant law of a foreign country. If, for example, the text of a presumably relevant statute of that country or an authoritative statement in a legal text book or other authority appears to suggest with sufficient precision the effect of the law in question, the court or tribunal is entitled, in the absence of contradictory expert evidence, to make a finding accordingly (Evidence Act (Cth) 1995, s. 174(1)).”
It could be said that the Tribunal was mistaken as to the effect of the foreign law or it could be said that the Tribunal had regard to an irrelevant matter (its own interpretation of the law) or it could be said that the Tribunal failed to have regard to a relevant matter (the actual law) or that the Tribunal failed to make enquiries in circumstances where such an enquiry would have been easy, was prompted by the assertions and claims made by the applicant and was in relation to a matter that had a direct bearing on the Tribunal’s view of the applicants credibility. Generally speaking a Tribunal is not under a duty to enquire: Minister for Immigration v Surjit Singh (1997) 74 FCR 553; WAGJ v Minister for Immigration [2002] FCAFC 277; Minister for Immigration v SGLB (2004) 78 ALJR 992. By way of example in SGLB (supra) the High Court held that whilst the Tribunal had the power to obtain a medical report that may have aided it in its enquiries, that the Migration Act did not impose any duty or obligation to do so at the request of the applicant. In W41/01A v Minister for Immigration [2001] FCA 742 at [19]-[23], R D Nicholson J articulated that a duty to enquire may exist in exceptional or rare circumstances but that in that case, the Tribunal had already concluded that the applicant's claims were implausible. It is correct that there are exceptions to the general rule that there is no duty to enquire. The Tribunal is under an obligation to conduct hearings according to the rules of procedural fairness, which require the Tribunal to enquire as to unclear facts where it would not be unreasonably difficult to do so: NAMO v Minister for Immigration [2004] FMCA 14 at [15]; NAMO v Minister for Immigration [2004] FCA 1419. In Prasad v Minister for Immigration (1985) 6 FCR 155 Wilcox J said at [170]:
‘...in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.’
This decision was followed in Re Minister for Immigration; Ex parte Cassim (2000) 175 ALR 209; W41/01A v Minister for Immigration [2001] (supra); Azzi v Minister for Immigration [2002] FCA 24. It will be readily seen that an enquiry that consists merely of checking the wording of a piece of foreign legislation written in English, readily available on the internet, would fall into the category of exceptions where a failure to enquire will amount to a failure to accord procedural fairness.
The respondent argues that on a fair reading of the Tribunal’s decision the operation of the National Security Act was hardly the critical issue in the case as opposed to the applicant’s contradictions in his own evidence. But I am not at all sure what these contradictions are. The Tribunal describes the applicant’s views on the severity of the situation in India as contradictory and I have found that this is not a matter I can interfere with although I do doubt that it constitutes a contradiction. There was the contradiction that the applicant claimed to have been arrested and picked up in March 1998 when he had also claimed to have been arrested under the National Security Act in February 1998. The applicant put that down to a mistake in the dates. The Tribunal claims that there is a contradiction in the fact that the applicant said he was arrested for four months and then had that term extended for a further six months. But this is not a contradiction if one has regard to the National Security Act. There is the contradiction that the applicant said he had no convictions or charges in Part C of Schedule A of the document which the Tribunal has interpreted as “clearly implying that the applicant was tried in a court of law, found guilty of an offences, sentenced by a magistrate and then had this sentence extended by a magistrate” which would not be a contradiction if the National Security Act had been considered because the implication would not have existed. The Tribunal also alleges that the applicant’s evidence was muddled, evasive, inconsistent and implausible. The Tribunal may well not have come to this view about the applicant’s evidence in regard to the National Security Act if it had read the Act. I am of the view that the Tribunal’s failure to have regard to the National Security Act has caused it to come to a negative view about the applicant’s credibility. The applicant’s lack of credibility is given by the Tribunal as the reason for not accepting his story and therefore not considering him to be a person to whom Australia owed protection obligations. Credibility of an applicant is a jurisdictional fact: NAAV v Minister for Immigration [2002] FCAFC 228; WAFP v Minister for Immigration [2003] FCAFC 319; NABE v Minister for Immigration (No 2) [2004] FCAFC 263. But s.422B of the Migration Act 1958 (Cth) was already in place when this application was made and the rules of procedural fairness thereby much proscribed. I am of the view that a better way of looking at the Tribunal’s actions in regard to the failure to consider the National Security Act was a failure to take into account relevant material which constitutes jurisdictional error: Minister for Immigration v Yusuf (2001); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; NABE v Minister for Immigration (No 2) [2004] FCAFC 263; W352 v Minister for Immigration (2002) FCA 398; NADH of 2001 v Minister for Immigration (2005) 214 ALR; Applicant M185 of 2003 v Minister for Immigration [2005] FCAFC 230.
I think that in the circumstances the Tribunal has fallen into jurisdictional error in the way in which it came to its conclusions in relation to this case. I do not think that I should exercise my discretion to ignore that jurisdictional error because the Tribunal’s decision is so firmly based upon credibility that an erroneous finding in that regard, even if it is not the sole finding in relation to credibility, must infect the whole decision: Paul v Minister for Immigration Affairs [2001] FCA 1196; Minister for Immigration v Rajamanikkam [2002] HCA 32.
I declare that the decision of the Refugee Review Tribunal made on
14 October 2003 and handed down on 6 November 2003 is void and of no effect. I will order that the application to the Refugee Review Tribunal be referred back to the Tribunal differently constituted to be heard and determined according to law. I will order the necessary prerogative writs if required. I order that the respondent pay the applicant’s costs which I assess in the sum of $4,000.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 24 February 2006
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