SZECD v Minister for Immigration

[2005] FMCA 554

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZECD v MINISTER FOR IMMIGRATION [2005] FMCA 554

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.47(3), 69(1), 91X, 411(1)(c), 412, 414(1), 415(4), 416, 474
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994 (Cth), regs.1.03, 2.07 (3), 2.10(1)(b) (reprint of 6 November 1997)

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Minister for Multicultural Affairs v Li (2000) 103 FCR 486
Hamid Reza Jamal Jamalian Nejad v Minister for Immigration & Multicultural Affairs [1997] FCA 1284
Minister for Immigration & Multicultural Affairs v A [1999] FCA 1679
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 261
Jadwan Pty Ltd v Secretary, Dept of Health & Aged Care (2003) 204 ALR 55
Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Secretary, Dept Social Security v Alvaro (1994) 50 FCR 213
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28
Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495
Thayananthan v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 297
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (3rd Ed, 2004)
Minister for Immigration & Multicultural Affairs v Li (2000) 103 FCR 486
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6

Applicant: SZECD

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 2406 of 2004

Delivered on: 29 April 2005

Delivered at: Sydney

Hearing date: 14 April 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

Counsel for the Applicant: Mr J Gormly

Counsel for the Respondent: Mr G Johnson

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2406 of 2004

SZECD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 15 April 2002 and handed down on 9 May 2002, affirming the decision of the delegate of the respondent (“the delegate”) made on 6 November 1997 to refuse to grant the applicant a protection visa.

Background

1. The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZECD”.

2. The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 2 September 1997. On 16 October 1997 he lodged an application for a protection (Class AZ) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 6 November 1997 the delegate refused to grant a protection visa on the basis that the applicant had not submitted any claims which indicated that he feared persecution in Bangladesh for a Convention reason. On 7 December 1997 the Tribunal affirmed the delegate’s decision.

3. Subsequent to the Tribunal’s decision, the Federal Court has established that in circumstances where there is no information or claims provided to the Department prior to the decision, but are provided to the Tribunal, the original application is invalid.  The applicant’s application was held to be invalid, and therefore, the applicant was entitled to validly lodge a further application for a protection visa.

4. On 3 July 2001 the applicant lodged a new application for a protection (Class XA) visa with the Department under the Act. An applicant for a visa of a particular class is entitled to be considered against the criteria for all the subclasses within that class. Visa class XA includes two subclasses: 785 (Temporary Protection) and 866 (Protection). On 31 August 2001 the delegate refused to grant a protection (Class XA) visa and on 18 September 2001 the applicant applied to the Tribunal for a review of the delegate’s decision (Court Book p.76) (“CB”).

5. In the applicant’s protection visa application and other documents and materials provided by him, he claimed he was a single Bangladeshi Muslim who was born in Muradnagar in Bangladesh in January 1968.  He claimed to speak, read and write Bengali but speak, read and write English poorly.  The applicant stated he had completed fourteen years of education from 1974 to 1990 and had gained a bachelor degree in science from the Bodiul Alam College in Comilla in 1990.

6. The applicant claimed he had been employed in a family business in Muradnagar in Comilla from December 1990 until February 1997 as a sales manager.  He claimed his occupation or profession was “business”.  The applicant stated he had lived in Islam village in Comilla from June 1991 until March 1997 and in various places from March until leaving Bangladesh in September 1997.  The applicant claimed his father, mother and two sisters continue to reside in Bangladesh and that a brother and sister live in Sweden (CB p.79).

Procedural history

1. The applicant arrived in Australia on 2 September 1997.

2. On 16 October 1997 the applicant lodged an application for a protection visa with the Department (“the first application”) (Supplementary Court Book pp.1-27) (“SCB”).

3. The first application omitted any information relating to the applicant’s claims for protection.  The first application contained the notation in reply to relevant questions 36-40 of Part C of the Visa Application Form:  “Please see my statutory declaration” (SCB pp.17-20).

4. The first application also noted at Question 15 of Part A of the Application Form, headed “Documents you will provide later”:  “All other relevant documents will be provided as soon as possible”.

5. The applicant did not provide a statutory declaration or any further information or documents prior to the delegate’s decision.

6. On 6 November 1997 the delegate considered the first application and decided to refuse to grant the applicant a protection visa (“the first delegate’s decision”) (SCB pp.34-37).

7. On 21 November 1997 the applicant applied to the Tribunal for a merits review of the first delegate’s decision.

8. On 9 November 1999 the Tribunal received further material from the applicant including a statutory declaration made on 9 November 1999 and a number of documents in support of his claims for protection (SCB pp.53-104).

9. On 10 November 1999 the applicant attended a Tribunal hearing.

10. On 7 December 1999 the Tribunal affirmed the first delegate’s decision not to grant a protection visa (“the first Tribunal’s decision”) (SCB pp.109-117).  This first Tribunal’s decision considered the further material lodged by the applicant on 9 November 1999.

11. On 3 July 2001 the applicant lodged a second application for a protection visa (“the second application”) on the basis that the first application was invalid (CB pp.7-40).

12. Each of the Questions 36-40 of Part C of the second application were answered with the notation:  “Please find the enclosed the (sic) statutory declaration which was earlier forwarded to the Refugee Review Tribunal” (CB pp.24-27).

13. The second application included a re-signed and undated but otherwise exact copy of the statutory declaration which was lodged with the Tribunal on 9 November 1999 (CB pp. 36-40).

14. The second application also noted at Question 15 of Part A of the application under the heading “Documents that you will provide later”:  “I trust all my supporting documents which I have provided the RRT is now available to the Onshore Refugee.  However if the department wants them again to forward I will do so as soon as I am advised”.

15. On 31 August 2001 the delegate considered the second application on the basis that the first application was invalid (CB p.56).  The delegate refused to grant the applicant a protection visa (“the second delegate’s decision”) (CB pp.53-58).

16. On 18 September 2001 the applicant applied to the Tribunal for a merits review of the second delegate’s decision.

17. On 15 April 2002 the Tribunal affirmed the second delegate’s decision not to grant a protection visa (“the second Tribunal’s decision”) (CB pp.75-84).

18. On 29 July 2004 the applicant lodged an application in the Federal Magistrates Court of Australia to review the second Tribunal’s decision.

Application for review of the Tribunal’s decision

1. On 29 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). The applicant subsequently filed an amended application on 11 November 2004 and finally a further amended application on 18 March 2005 which contained the following grounds:

   “That the decision of the Refugee Review Tribunal (“the Tribunal”) was affected by jurisdictional error:

   1.In that the Tribunal failed to carry out its review function and to exercise its jurisdiction in respect of the decision of the delegate of the respondent made 31 August 2001.

   Particulars

   a.The Tribunal did not consider or independently evaluate the claims of the applicant and instead relied on the findings of an earlier Refugee Review Tribunal decision of 7 December 1999 (“the earlier Tribunal decision”).

   2.The Tribunal was not entitled to rely on the findings of the earlier Tribunal decision pursuant to s 416 Migration Act because the earlier Tribunal decision was not “an RRT reviewable decision” within the meaning of that section.

   Particulars

   a.The earlier Tribunal decision was not an RRT reviewable decision as that decision was made in respect of a decision by a delegate of the respondent which was made upon an invalid application.

   b.The said application was invalid because it made no specific claims for recognition as a refugee under the Refugee Convention.”

The law

1. The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith:  S157/2002 at [76] and S134/2002 at [15].

2. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power:  Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Applicant’s submissions

1. Mr J Gormly of Counsel, appearing for the applicant, filed written submissions prior to the hearing which were subsequently replaced by a revised submission identified as “Applicants Submissions in Reply” and which contained the following submissions:

   a)The first ground of the further amended application concerned those of the applicant’s claims in the second Tribunal which were identical with those of before the first Tribunal:

   i)At paragraph 37 of the second Tribunal’s decision the Tribunal finds that because of s.416 of the Act it was “not required to consider any information considered in the earlier application for review, and, may have regard to, and take to be correct, any decision that the previous Tribunal made about or because of that information”. “Therefore”, the Tribunal took to be correct the decision of the first Tribunal “based on that information”: (CB p.83).

   ii)Except for the applicant’s responses in oral evidence before the second Tribunal, the information before the second Tribunal was the same as that before the first Tribunal.

   iii)The second Tribunal also seemed not to be aware that documents before the first Tribunal were included in his second application and therefore should have been considered by the second Tribunal.  The second Tribunal appeared to have not reviewed these documents, but rather relied on the findings of the first Tribunal.

   iv)In not considering the applicant’s documents or the applicant’s claims in his statutory declaration, the second Tribunal failed to carry out its review function and to exercise its jurisdiction.

   b)In respect of the second ground, s.416 of the Act did not apply to the first Tribunal’s decision as the first Tribunal had no jurisdiction to review a delegate’s decision on an invalid application.

   c)In respect of the Statutory Scheme, s.414(1) of the Act relevantly provided:

   “ … if a valid application is made under s.412 for review of an RRT-reviewable decision, the Tribunal must review the decision”.

   It was not expected to be in issue that the second application for review was valid and that the second delegate’s decision was an “RRT-reviewable decision” as a “decision to refuse to grant a protection visa” within the meaning of s.411(1)(c). Section 416 (c) and (d) together provided that a second Tribunal was not required to reconsider material that was considered by an earlier Tribunal. However, s.416 (c) and (d) only apply in respect of “an application for review of an RRT-reviewable decision that has been determined by the Tribunal”.

   d)It was submitted that the first Tribunal did not determine an application for review of an “RRT-reviewable decision” within the meaning of s.416. This was because the first Tribunal decision was made in respect of an invalid application and so the first Tribunal had no jurisdiction to review or determine the first delegate’s decision in respect of that invalid application. Section 46 relevantly provided at s.46(1)(b) that an application was valid only if “it is made in the way required by subsection 45(2)…”.

   e)Subsection 45(2) provided for the making of regulations prescribing the way an application is to be made.

   Regulations 2.07 (3) and 2.10(1)(b) and 1.03 of the Migration Regulations 1994 (Cth) (“the Regulations”) provided:

   “2.07(3)An applicant must complete an approved form in accordance with any directions on it.

   2.10(1)An application for a visa must be made:

   …

   (b)    In the case of an application to be made in Australia … at any office of Immigration in Australia.

   1.03defined “Immigration” to mean “the Department of Immigration and Multicultural Affairs”.

   f)The first application was invalid because it did not even substantially comply with requirements made under the Act to lodge a completed application in the prescribed form. In contravention of these requirements the form lodged by the applicant made no specific claims for protection and failed to answer Questions 36 – 40 of Part C of the application (SCB pp.17-20). The invalidity was not cured by the applicant sending the promised material to the first Tribunal: Minister for Multicultural Affairs v Li (“Li”) at [71]. Section 47(3) provided: “To avoid doubt, the Minister is not to consider an application that is not a valid application”. The invalidity was also not cured by s.69(1). This section operates to “save” decisions where the Minister has not complied with certain parts of the Act, including s.47(3). However s.69(1) cannot enable an incomplete application to comply with reg.2.10(1)(b): Li at [80].

   g)Therefore, a decision to refuse a visa where no valid application has been made is a decision not authorised by the Act or the Regulations. It follows that the first delegate’s unauthorised decision was not an “RRT-reviewable decision” within the meaning of s.411(1)(c). Even if the first delegate’s decision was “an RRT-reviewable decision” the first RRT did not determine the first application for review as required by s.416 as it lacked authorisation under the Act. Further, the first Tribunal was not permitted by s.415(4) to make such an unauthorised decision. Therefore, the second Tribunal was not entitled to rely on s.416 in derogation of its duties under s.414.

Respondent’s submissions

1. Mr G Johnson of Counsel, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:

   a)Even if, as it was not conceded, either or both of the applicant’s grounds were otherwise good, the applicant could not succeed, as it could not be said that either (alleged) error was such that the Tribunal’s decision could have been affected.  That was because there was an alternative basis for the Tribunal’s decision that was not in any way affected by the manner in which it dealt with the first Tribunal’s decision or the particular claims decided in the first Tribunal’s decision.  The alternative basis was provided by the Tribunal’s findings (CB p.83) to the effect that even if the applicant had been active in the Bangladesh National Party (“the BNP”) as he had claimed, he would have effective protection in Bangladesh and, for that reason, would not have a well-founded fear of persecution in that country.  The Tribunal’s specific findings in that respect were:

   i)There had been a change of government in Bangladesh in October 2001 (obviously well prior to the first Tribunal’s decision) in which the BNP had been elected.  The Tribunal found:

   “… notwithstanding the applicant’s claims to the contrary, it is my view that the applicant can now safely return to his country”   (CB p.83)

   ii)Even if (as the Tribunal did not accept), the applicant would otherwise have faced politically motivated charges upon return to Bangladesh, the Tribunal found:

   “It is my view that his claimed influence and prestige within his party would ensure that he would receive a fair and impartial hearing of such charges by the courts because he would be able to access adequate state protection against the claimed harm.”   (CB p.83)

   “As such there would be no real chance of treatment amounting to persecution.”   (CB p.83)

   At least as a matter of discretion, the Court would refuse relief if the issue that otherwise would be a reviewable error could not have affected the decision.

   b)With respect to the applicant’s separate claim that he could not return to Bangladesh because his mother was contemplating moving to Sweden and there would be no-one to protect him in Bangladesh, the Tribunal, as it was clearly entitled, rejected that claim on two independent bases.  Firstly, it did not accept that the claim “had any veracity” and, secondly, the Tribunal was not satisfied that this issue would fall within the Convention (CB p.83).

   c)In relation to ground two, the respondent’s Counsel did not dispute the applicant’s procedural history.  Nor was it in dispute that the second Tribunal had regard to and “accept(ed) the findings of the previous Tribunal that the applicant had not been a politically active member of any party, not the BNP or any other” and that was a basis upon which it was not satisfied that the applicant had a well-founded fear of persecution in Bangladesh (CB p.83).

   d)It was also not in dispute that the Tribunal relied upon s.416 of the Act in finding that it was not required to consider any information considered in the earlier application for review and in finding that it could “in so far as the applicant’s claims are the same” “have regard to the decision made by the previous Tribunal based on that information”. This was in accordance with the terms of the section: Hamid Reza Jamal Jamalian Nejad v Minister for Immigration & Multicultural Affairs per Beaumont J. The issue was whether the Tribunal was entitled to so utilise s.416. The applicant disputes the Tribunal’s entitlement to utilise s.416 as he claims the first delegate’s decision was not an “RRT-reviewable decision”, no valid visa application having been made and s.416(c) and (d) only apply where the determination of the earlier Tribunal was “of an application for review of ‘an RRT-reviewable decision’”.

   The respondent submitted, however, that more recent authority:  Minister for Immigration & Multicultural Affairs v A supports the proposition that a delegate’s decision may still be an “RRT-reviewable decision” for the purposes of s.411(1)(c) of the Act, able to be reviewed by the Tribunal under s.412, notwithstanding that it is vitiated by jurisdictional error.

   e)In Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (“Zubair”) at [21]-[32], Finn, Mansfield and Gyles JJ considered the analogous position of the Migration Review Tribunal. Their Honours applied authorities including Jadwan Pty Ltd v Secretary, Dept of Health & Aged Care per Gray and Downes JJ at [42]; Collector of Customs v Brian Lawlor Automotive Pty Ltd; Secretary, Dept Social Security v Alvaro at 219; Clements v Independent Indigenous Advisory Committee at [38]-[39] and Yilmaz v Minister for Immigration & Multicultural Affairs (“Yilmaz”) per Gyles J at [88]. Counsel submitted that the case of Yilmaz was of particular relevance to the present case in so far as it held that an invalid decision of a delegate could be reviewed by the Tribunal under ss.411 and 412 of the Act. As noted by the Full Court in Zubair at [31], Yilmaz was followed by Moore, Tamberlin and Goldberg JJ in Thayananthan v Minister for Immigration & Multicultural Affairs.

   f)The essential rationale sufficiently emerges from the following passage from the Full Court’s reasons in Zubair at [28]:

   “There is no textual suggestion that the expression ‘MRT-reviewable decision’ should be restricted in some way so as to refer only to decisions which have been made by a delegate of the respondent after full compliance with the mandatory procedural prescriptions of ss 119 – 121 (in the case of the cancellation of a visa) or other procedural prescriptions applicable to other forms of MRT- reviewable decisions. There is no qualification upon the use of the word ‘decision’ requiring it to be a ‘decision under the Act’: cf Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2. In particular, there is nothing in Pt 5 of the Act which would suggest that the Tribunal does not have the power or obligation to review a decision properly brought before it (see s 347) where the delegate of the respondent may, or may arguably, have failed to comply with a procedural requirement imposed by the Act, or in some other way may, or may arguably, have committed an error of law either in determining the applicable law or in applying the law. There is no reason why the Act, which provides for a full merits review by the Tribunal of decisions which may be brought to it, should impose upon the Tribunal the task of culling out those decisions which may involve jurisdictional error on the part of the original decision-maker. That would impose an unnecessary additional complexity upon the merits review process. Moreover, it may expose the Tribunal’s decision as to the existence of a valid delegate’s decision (a jurisdictional fact on the appellant’s argument) to review by a Court even where (as here) the Tribunal has fully reviewed the decision on the merits. Administrative convenience strongly points to an alternative conclusion to that urged by senior counsel for the appellant. The review process applicable to the Tribunal is a full merits review. As with review under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), the Tribunal is given powers under s 349 to exercise all the powers and discretions that are conferred by the Act on the person who made the decision. It may affirm the decision, vary it, or remit the matter for reconsideration with directions or recommendations, or may set aside the decision and substitute a new decision. The only limit upon its power is that it may not, by varying or setting aside a decision and substituting a new decision, make a decision that is not authorised by the Act or the regulations (s 349(4)). That is similar to the review powers of the Administrative Appeals Tribunal (AAT): see AAT Act, s 43. In that context it has been held that the review by the AAT is available even though the decision-maker at first instance may have made a decision which is legally ineffective: see eg Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [38] — [39].”

   Thus regardless of whether the decision under review by the first Tribunal (“the first delegate’s decision”), was valid, the first delegate’s decision was, relevantly, an “RRT-reviewable decision” as defined in s.411 and able to be reviewed under s.412 of the Act. Also, the decision of the first Tribunal was one that determined that application for review.

   g)In relation to ground one, Counsel submitted that the applicant’s arguments, being dependent upon claims advanced under ground two, failed for the reasons stated in the submissions outlined above.

The hearing

1. The applicant’s Counsel tendered a transcript of the Tribunal hearing held on 25 March 2002.  Counsel for the respondent consented to the tender subject to minor amendments that had been made to the transcript by the respondent’s instructing solicitors.  The respondent solicitors had taken the transcript, supplied by the applicant’s Counsel, and, after reviewing the hearing tapes, made a number of minor amendments by replacing some of the blanks in the initial transcript copy.

Reasons

1. Counsel for the respondent submitted that there was a simple, complete answer to this issue which could be alternatively characterised as the “what if I am wrong?” approach.  However, Counsel did not want to use that language in the formulation of his submission.  It was submitted that relief would not flow from a jurisdictional error unless the error was such that could have affected the ultimate decision if the ultimate decision would go against the applicant anyway, because of the alternative reason in the Tribunal’s decision.  In the “Findings and Reasons” section of the Tribunal’s decision, the member made the following important findings:

   “In any case, even if I were to accept the applicant’s claim of political activism, and I do not, it is the case that the applicant’s claimed political party, the BNP, has been elected to government in Bangladesh in October 2001, and notwithstanding the applicant’s claims to the contrary, it is my view that the applicant can now safely return to his country.”   (CB p.83 at [38])

   In view of this change in circumstances, the Tribunal found that the applicant could safely return home to his country and benefit adequate state protection against his claimed harm.

2. These alternative matters have nothing to do with the first Tribunal’s rejection of the applicant’s claims and it was submitted that there was no jurisdictional error in that part of the Tribunal’s decision.  Support for this approach was also evident from the transcript.

Transcript (p.5) (Applicant’s evidence given through an interpreter)

Tribunal:Are there any other reasons why you fear returning to Bangladesh?

Applicant:In the country now there is political unrest and if I go back to that country the Awami party will harm me.

Tribunal:Sorry, which party?

Applicant:Awami League party.

Tribunal:Now my understanding is that you claim that you had to leave Bangladesh because as a member of the Bangladesh Nationalists Party, the BNP, you feel persecution at the hands of the Awami League Government at that time?  That was in 1997, four years ago.  Now since that time in October of last year the government has changed and now the very party which you claim that you belong to is now in power.  Now in light of that change of circumstances how is it that you say that you would be the subject of persecution at the hands of the Awami League?

Applicant:The case that I have against me is still active.  It’s still live.

Tribunal:Yes, but if you say that the case which you claim in your statement was politically motivated and brought against you by the Awami League then how could it still stand now in light of the fact that your very party, the one that you claim that you belong to, is now in power?

Applicant:That case has not been withdrawn even with the change of power.

Tribunal:But in light of the fact that your party, the BNP, is now in power why can’t you go to the courts and in that situation of influence of your party are you before the courts to do this false case and should be dismissed against you.

Counsel for the respondent submitted that when the case was seen in that light the outcome was simple as there was no need to consider the outcome or relevance of the first Tribunal hearing.

1. Counsel for the applicant contended that for the Court to accept that approach would require the Court to enter into a merits review.  Clearly a merits review is not available in this Court:  Minister for Immigration & Ethnic Affairs v Wu Shan Liang per Brennan CJ, Toohey, McHugh and Gummow JJ at [31]:

   “ … any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”

   However, is the Court being asked to conduct a merits review in this situation?  A merits review is an assessment of the appropriateness of a decision as distinct from a judicial review which focuses on the lawfulness of the earlier decision.  A judicial review asks whether the decision maker was authorised to do what he did under the prevailing law, not whether the actual decision was the best decision which could be made in the circumstances.  A merits review provides a complete rehearsal of all the issues relevant to the application.  The reviewing body considers the relevant material as well as any new evidence.  The reviewing body makes a decision about the merits of the application, unfettered by the earlier decision or the reasons of the decision maker for the earlier decision.  A merits review determines the correct preferable decision in all the circumstances.

2. Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (3rd Ed, 2004) at 14 focused on this distinction and the difficulties that can be experienced with the distinction:

   “His Honour [Justice Brennan] stated in Attorney-General (NSW) v Quin that judicial review often remedies administrative injustice or error, but that this is an occasional consequence rather than its rationale, which is simply to enforce obedience to the law.  His Honour acknowledged the occasional difficulty in distinguishing between administrative action’s merits and its legality, but insisted that, to the extent that the distinction was feasible, the ‘merits of administrative action [were] … for the repository alone’.  The High Court has repeatedly endorsed his Honour’s cautionary words in Quin, emphasising the need to distinguish an administrative decision’s merits and its legality.”  (citations omitted)

3. In this matter a decision had been made by the Tribunal member and that finding was recorded in the second Tribunal decision at paragraph [38] (CB p.83).  The transcript reproduced in paragraph 33 above, indicated that the Tribunal member raised this issue with the applicant.  It could be argued that the change in the political fortunes of the various parties leading to the change of controlling power in the Parliament in October 2001 would be broad public knowledge to anyone associated with Bangladesh and particularly a person who claimed a high political profile.  However, the Tribunal member did accord the applicant procedural fairness by raising the issue of the consequences that flow from such a change that would result in a change of circumstances of the applicant himself.  There was no need to examine the decision making process of the second Tribunal member in reaching this decision as this could encroach on the merits of the decision.  Importantly, the decision was not dependent upon the first Tribunal’s decision or the material submitted to that the first Tribunal and subsequently re-submitted to the second Tribunal.  This decision was based on information that stood alone and was not influenced by prior determinations concerning the applicant and was, in fact, as the respondent Counsel suggested a simple and complete answer to the Tribunal’s decision.

4. The thrust of the applicant’s submissions focused on the authority of Minister for Immigration & Multicultural Affairs v Li (“Li”) which Counsel submitted was en pointe in this case. The applicant’s submissions, set out in paragraph 29 above, addressed the invalidity of the first Tribunal’s decision and how the statutory provisions set out in the Act and the Regulations prohibit the second Tribunal from relying upon the decision made by the first Tribunal. The structure of that argument was that the first application was invalid because it did not comply with the requirements under the Act to lodge a complete application in the prescribed form and that defect not be subsequently cured by the applicant providing material to the Tribunal that should have been supplied in the original application. The decision in Li is authority that the mechanisms under the Act to rectify various elements of invalidity do not apply in the circumstances being considered in Li.

5. The respondent Counsel submitted that more recent authorities supported the proposition that a delegate’s decision may still be a “RRT-reviewable decision” for the purposes of s.411(1)(c) of the Act to be reviewed by the Tribunal under s.412, notwithstanding that it was vitiated by jurisdictional error. The respondent Counsel argued that this approach was achieved by following the decisions of Yilmaz; Thayananthan and Zubair which permit a review Tribunal to consider both good and bad decisions.

Conclusion

1. For the reasons stated above, I have not been able to identify any ground that the Tribunal has committed a jurisdictional error.  The applicant’s application should be dismissed.

2. I am satisfied that an order for costs should be made in this matter. 

   
   

   I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:  Menna McMullan

Date:  29 April 2005