SZSBX v Minister for Immigration - [2013] FCCA 1127

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSBX & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1127

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether failure to take into account post-hearing material constitutes jurisdictional error – whether the question of failing to take into account post-hearing material constitutes jurisdictional error is to be determined by whether the material is classified as a claim, or element or integer of a claim, or an important contention – whether failing to consider evidence that is material to the Tribunal’s decision constitutes jurisdictional error.

Legislation:

Migration Act 1958 (Cth) ss.425, 430, 36(2)(a), 36(2)(aa), 200, 412

First Applicant:

SZSBX

Second Applicant:

SZSBY

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2441 of 2012

Judgment of:

Judge Manousaridis

Hearing date:

31 July 2013

Delivered at:

Sydney

Delivered on:

23 August 2013

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Mr Johnson

Solicitors for the Respondent:

Minter Ellison

ORDERS

A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 21 September 2012.
A writ of mandamus issue directed to the second respondent requiring it to determine according to law the application made to it for review of the decision of the delegate of the first respondent dated 17 May 2012.
The name of the first respondent recorded in the application be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2441 of 2012

SZSBX

First Applicant

SZSBY

Second Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCCA 1127
Decision Date: 23 August 2013

CaseChat Overview and Summary

This matter concerned an appeal to the Federal Court of Australia regarding a decision made by the Administrative Appeals Tribunal (AAT). The applicant, SZSBX, sought judicial review of the AAT's decision, which had affirmed a delegate's decision to refuse a protection visa. The core of the dispute revolved around whether the AAT had committed jurisdictional error by failing to adequately consider the evidence and arguments presented by SZSBX.

The legal issues before the Court were whether the AAT had failed to conduct a review in accordance with the relevant provisions of the Act, and if so, whether this failure constituted jurisdictional error. Specifically, the Court was required to determine the circumstances under which a failure by the AAT to consider evidence or arguments advanced by an applicant would amount to jurisdictional error, thereby invalidating its decision.

The Court reasoned that a failure by the AAT to consider evidence will amount to jurisdictional error if, as a consequence, it cannot fairly be said that the Tribunal's decision was made after considering the evidence and arguments presented by the applicant. This principle is not concerned with whether the AAT would have reached a different conclusion had it considered the evidence, but rather whether the overlooked evidence was "material" – that is, evidence that, had it been considered, could have materially affected the Tribunal's decision. The Court distinguished this from a mere failure to weigh or discuss every piece of evidence, or an errant finding of fact, emphasizing that jurisdictional error arises when the Tribunal fails to embark on or complete its statutory task by not considering claims or evidence that the Act mandates it to consider.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

And these two quoted passages are consistent with the passage from the reasons for judgment of Gummow and Gaudron JJ in Bhardwaj:[65]The function of the Tribunal was to conduct a review of the delegate's decision in accordance with the Act. In particular, the Tribunal was required to give Mr Bhardwaj an opportunity to attend the hearing, to give evidence and put argument. And it is implicit from the terms of s 368(1) detailing the matters to be recorded in the written statement embodying a decision that the Tribunal was to reach a decision only after considering the evidence and the argument advanced against the cancellation of Mr Bhardwaj's visa.The failure of the Tribunal to give Mr Bhardwaj a reasonable opportunity to present evidence and argument had the consequence that it did not reach a decision after considering evidence and argument against the cancellation of his visa. That being so, it follows that the Tribunal did not conduct a review as required by the Act and the September decision was, thus, not a "decision on review" for the purposes of ss 367 and 368 of the Act.[65] (2002) 209 CLR 597 at [42] (emphasis added) (McHugh J agreeing [63]) Thus, in my opinion, these authorities show that the relevant legal principle that must be considered when it is claimed the Tribunal committed jurisdictional error by failing to consider evidence before it when conducting a review under the Act is this: such failure will amount to jurisdictional error if, as a consequence, it cannot fairly be said the Tribunal’s decision is a decision that was made after considering the evidence and arguments advanced by the applicant. So stated, this principle does not identify the circumstances in which it would be appropriate to conclude the Tribunal’s failure to consider evidence will render its decision one that cannot fairly be said to have been made after considering the evidence and arguments before it. Here, the overriding consideration in determining such circumstances is the fact that a court exercising judicial review jurisdiction cannot consider the merits of the application before the Tribunal. In particular, the court cannot consider whether the Tribunal would have made a different decision had it considered the evidence; that was and remains a matter for the Tribunal. All a court can assess is whether the evidence the Tribunal failed to consider is such that, had the Tribunal considered it, the Tribunal could have made a different decision. If the evidence the Tribunal overlooks is of this nature, then the evidence may be described “material” evidence. Thus, in my opinion, the circumstance that will render a Tribunal’s decision a decision that cannot fairly be said to have been made after considering the evidence and arguments before it will be the materiality of the evidence the Tribunal failed to consider. In other words, a Tribunal’s failure to consider evidence will result in jurisdictional error if the evidence the Tribunal failed to consider is such that it could have materially affected the Tribunal’s decision had the Tribunal considered it.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In arriving at this conclusion, the Court set out two passages. One was the following passage from the reasons for judgment of Allsop J (as his Honour then was) in Rezaei v Minister for Immigration and Multicultural Affairs:[46][Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 231] does not stand for the proposition that a relevant consideration has not been taken into account and the decision-maker has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed. ‘Relevant’ for this purpose means that the decision-maker is bound by the statute or by law to take this into account.[47][46] [2001] FCA 1294[47] This passage was quoted at [26]. The Court noted that the passage was approved by Cooper and Finkelstein JJ in Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [29] The other passage to which the Court referred[48] was the following passage from the decision of the Full Court of the Federal Court in WAEE v Minister for Immigration and Multicultural Affairs:[49]It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. . . . Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact . . . . and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.[48] At [27][49] [2003] FCAFC 184 at [46] In Htun v Minister for Immigration and Multicultural Affairs,[50] the Court found the Tribunal failed to consider one of two asserted claims for a protection visa, and that this failure constituted jurisdictional error. Allsop J (as his Honour the was) said:This is not merely one aspect of evidence not being touched. It is not a failure to find a “relevant” fact. The tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) . . . . It is to be distinguished from errant fact finding.[50] (2001) 194 ALR 244 (Spender, Merkel, and Allsop JJ) In Tran v Minister for Immigration & Multicultural & Indigenous Affairs[51] the Full Court held the primary judge was correct to apply to a review by the Administrative Appeals Tribunal of a deportation order under s.200 of the Act the principle that the Tribunal “is required to deal with all integers of an applicant’s claim. It is not required to refer to every piece of evidence placed before it”.[52][51] [2004] FCAFC 297 (Kiefel, RD Nicholson and Downes JJ)[52] [6]