SZTIF v Minister for Immigration & Anor
[2014] FCCA 945
•9 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTIF v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 945 |
| Catchwords: MIGRATION – Review of decision by Refugee Review Tribunal (RRT) – whether RRT properly performed its obligations to “review” decision – meaning of “review” within s.414(1) of the Migration Act 1958 (Cth) (Act) – extent to which RRT’s obligation to review may be determined by reference to s.415, s.418, s.424, s.425, and s.430(1) of the Act – whether RRT in reviewing decision must identify material questions of fact – whether in reviewing decision RRT must make findings on material questions of fact – whether in reviewing decision RRT must identify evidence on the basis of which it makes findings on material questions of fact – whether in reviewing decision the RRT must assess in a real and active way the claims made by an applicant, or whether the RRT must evaluate the material on which an applicant relies for his or her claim or whether the RRT must undergo a process of weighing evidence and preferring some over the other – whether RRT in this case failed to do any of these things in conducting the review that was before it – whether such failure constitutes jurisdictional error – jurisdictional error found – application allowed. |
| Legislation: Federal Court Rules 2011 (Cth), r.16.02(1)(d) Migration (Unauthorised Maritime Arrival) Regulation 2013 (Cth) |
| Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 Minister for Immigration and Citizenship v Li [2013] HCA 18 Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 SZSYP v Minister for Immigration & Anor [2014] FCCA 7 The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Proprietary Limited (1953) 88 CLR 100 Xu v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 425 |
| Applicant: | SZTIF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2297 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 20 February 2014 |
| Delivered at: | Sydney |
| Delivered on: | 9 May 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Phillips |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
Subject to the orders referred to in paragraphs 2 and 3:
(a)The decision of the second respondent made on 23 August 2013 affirming the decision of the delegate of the first respondent made on 6 February 2013 is quashed.
(b)The second respondent determine according to law the application made to it for review of the decision of the delegate of the first respondent made on 6 February 2013 refusing to grant the applicant a protection visa.
(c)The first respondent pay the applicant’s costs of these proceedings.
Subject to the order referred to in paragraph 3, the orders referred to in paragraph 1 are not to take effect until 30 May 2014.
The parties have liberty to apply on two days’ notice to relist the matter before the date referred to in paragraph 2 for the purpose of applying to the Court to vary, add to, or discharge the orders made in paragraphs 1 and 2.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2297 of 2013
| SZTIF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant advanced before the second respondent (Tribunal) a number of claims for protection, one of which was based on the following asserted facts:
a)the applicant is a national of Sri Lanka;
b)the applicant departed Sri Lanka illegally;
c)because of (a) and (b), if the applicant returns to Sri Lanka, he will be detained on remand for a time pending bail; and
d)there was a real risk the applicant, a youth, would suffer significant harm while in detention.
The Tribunal accepted the first three asserted facts, but not the fourth. The Tribunal, therefore, rejected the applicant’s claim.[1]
[1] The Tribunal’s rejection of the applicant’s other claims is not challenged by the applicant.
In his amended application for judicial review, the applicant raises three grounds of review. The first is that the Tribunal did not consider the fourth asserted fact. The second ground is not pressed. The third ground is that, to the extent the Tribunal considered the applicant’s claim, it did so, not by addressing the question the claim raised, but by addressing a different, and irrelevant, question.
The applicant’s claim for protection
The applicant’s claim before the Tribunal was formulated in a letter from the applicant’s lawyers.[2] The applicant’s lawyers:
a)referred to country information that “indicates that returned asylum seekers are interrogated, detained in a prison on pre-trial remand awaiting a bail hearing”,[3] quoting an article from the Sydney Morning Herald that “[s]ome [failed asylum seekers returned from Australia] spend up to a fortnight in jail, while others are released within days”;[4]
b)submitted that the applicant “is an extremely vulnerable 17-year-old child and any level of interaction with Sri Lanka’s interrogation process and prison system will result in the Applicant experiencing significant harm in the form of” torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment;[5]
c)referred to country information concerning the use of torture in interrogation in Sri Lankan prisons;[6] the use of cruel or inhuman treatment or punishment in interrogation in Sri Lankan prisons;[7] and the use of degrading treatment or punishment by Sri Lankan authorities in interrogation and prisons;[8] and the detention of minors in adult prisons;[9]
d)submitted that the country information to which he referred “shows there is a real risk that the Applicant will face significant harm in the form of torture, cruel or inhuman, or degrading treatment or punishment”;[10]
e)submitted that the level of harm or mistreatment must be assessed by reference to the personal features of the applicant, these being his being a 17 year old minor, his having fled Sri Lanka illegally, his having spent time in detention in Australia as an unaccompanied minor, and his being in a vulnerable mental state due to his having witnessed a horrific crime;[11] and
f)referred to country information it was submitted showed “a disturbing pattern of interrogation, arrest and imprisonment”[12] among failed refugee complainants whom the Australian government forcibly returned to Sri Lanka commencing in July 2012.[13]
[2] CB122-145
[3] CB131 [51]
[4] CB132 [51]
[5] CB132 [52]
[6] CB132-134
[7] CB134 [59]
[8] CB135-138
[9] CB138
[10] CB139 [70]
[11] CB139-140
[12] CB140 [75]
[13] CB140-CB144
The Tribunal noted that the applicant’s representative:[14]
also made oral submissions with regard to the consequences for the applicant returning as a failed asylum seeker who departed Sri Lanka illegally. He stated that the applicant will be remanded in Negombo prison where he would be at risk of significant harm in the sub-standard prison conditions in Sri Lanka. Prison conditions in Sri Lanka are internationally condemned as not acceptable.
[14] CB168, [54]
Tribunal’s reasons
The Tribunal described the applicant’s claim in paragraph 64 of its reasons:[15]
It is submitted that the applicant faces significant harm as a failed asylum seeker returning to Sri Lanka after having illegally departed Sri Lanka. It is further submitted that the applicant faces significant harm as a minor returning after departing Sri Lanka illegally. . . . It is submitted that the applicant would be interrogated as an adult, detained as an adult, and placed in an adult prison where there is a real risk he will face significant harm. It is claimed that the length of imprisonment on remand is not clear; however it is clear that the applicant will be detained on remand, and as a vulnerable young person any level of interaction with Sri Lanka’s interrogation process and prison system will result in significant harm in the form of torture, cruel or inhuman treatment of punishment, and/or degrading treatment or punishment. Various country information reports were submitted in support of this claim. The reports highlighted poor prison conditions which did not meet international standards.
[15] CB171
The Tribunal dealt with that claim beginning at paragraph 79 of its reasons.[16] The Tribunal first set out passages from the Department of Foreign Affairs and Trade (DFAT) publication “Country Information Report Sri Lanka” dated 31 July 2013 which dealt with the treatment of Sri Lankan nationals who have returned to Sri Lanka after having left Sri Lanka illegally.[17]
[16] CB175, [79]
[17] CB175, [80]-[82]
Second, the Tribunal set out the following information it obtained from DFAT “Report no. 1446 – Sri Lanka: RRT Country Advice Information Request LKA40999, 22 October 2012”:
a)Section 45(1) of the Sri Lankan Immigration and Emigration Act of 1948 (I & E Act) lists various offences, one of which is the offence of leaving “Sri Lanka in contravention of any provision of this Act or of any order or regulation made thereunder”.[18]
b)Sri Lanka’s Attorney-General’s Department told staff from “Australia’s overseas post” in Sri Lanka that people being intercepted on people smuggling boat ventures in Sri Lanka are considered to be victims and are not given a custodial sentence, but are issued a fine for the offence of departing Sri Lanka illegally under s.45(1)(a) of the I & E Act.[19]
c)From late November 2012, the Sri Lankan Government started to enforce the law in all cases regardless of whether a person has been returned voluntarily or non-voluntarily; that all Sri Lankan nationals who arrived in Australia by boat and who were returned to Sri Lanka have been released and charged and remanded for offences regarding their illegal departure; and they have been released on bail, with a family member as surety.[20]
[18] CB176, [83]
[19] CB176, [84]
[20] CB176, [86]
The Tribunal then said it was satisfied of the following:[21]
a)on his return to Sri Lanka, the applicant will be detained for questioning, and will be subjected to security and character checks;
b)the applicant will be remanded and charged with an offence under the I & E Act because he departed Sri Lanka illegally;
c)there was no evidence that the applicant used any false or fraudulent documents or that he was an organiser or people smuggler, and will therefore not be subject to penalties on that count; and
d)the applicant will be released on bail, with a family member as surety, to appear in court at a future date.
[21] CB176, [87]
The Tribunal concluded as follows:[22]
The Tribunal finds that the treatment the applicant can expect on return to Sri Lanka after having departed illegally does not amount to Convention-based persecution. Further to this, the Tribunal does not accept that being questioned and detained for up to a number of days amounts to torture, cruel and inhuman treatment or punishment, or degrading treatment or punishment, and does not amount to significant harm as it is defined in s.36(2A) [sic] and s.5(1) of the Act.
[22] CB176-177, [88] (emphasis added)
Ground 1 – failure to consider claim
The applicant contends the Tribunal did not consider the claimed conditions of detention that the applicant would face and, therefore, did not consider the claim.[23] The applicant relies on:
a)the Tribunal’s not referring in the passage set out in the preceding paragraph to the conditions the applicant claimed he would likely face in detention;
b)the absence from the Tribunal’s reasons of any evaluation of the information or evidence the applicant submitted to the Tribunal in support of his claim; and
c)the Tribunal’s treatment in SZSYP v Minister for Immigration & Anor[24] of a claim similar to the applicant’s claim.
[23] T21.25
[24] [2014] FCCA 7
The Minister, on the other hand, submits that the Tribunal correctly identified the applicant’s claim and it dealt with that claim. He submits that the Tribunal’s conclusion set out in paragraph 10 of these reasons is sufficiently general so as to be taken to have addressed and rejected the claim the Tribunal recorded in paragraph 64 of its reasons.[25] The Minister further submits that, having dealt with the claim in the manner which it did, the Tribunal was under no legal obligation, either under s.430(1)(c) of the Act or otherwise, to disclose reasoning about how it dealt with that claim.
[25] Minister’s written submissions, [5]
Issues
The competing submissions, as formulated by the parties, present a single issue: did the Tribunal consider the applicant’s claim for protection, or more accurately, an essential element of that claim? The issue so framed, however, may not accurately identify the issue or issues that must be addressed where it is contended the Tribunal failed to consider a claim.
The ultimate question on a claim for judicial review, based on the contention that the Tribunal failed to consider a claim before it, is whether the Tribunal failed “to perform the statutory task imposed on the Tribunal by the relevant provisions of the” Act.[26] To paraphrase what the Full Federal Court in Minister for Immigration and Border Protection v MZYTS said in a slightly different context,[27] to contend that the Tribunal failed to consider a claim may only point to “the path leading to error”[28]; it does not constitute the error itself. To show in any given case that the Tribunal’s failure to consider a claim constitutes jurisdictional error, therefore, it is necessary to show that this amounted to the Tribunal’s failing to perform its statutory duties. It is necessary, therefore, to identify what those duties are, whether the proper performance of those duties requires the Tribunal to consider a claim, and if so, what the Tribunal must do before it can be said the Tribunal considered a claim.
[26] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ) at [31]
[27] The issue in Minister for Immigration and Border Protection vMZYTS was whether the Tribunal made a jurisdictional error by failing to consider information.
[28] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ) at [31]
Tribunal’s statutory tasks
The starting point when determining what are the Tribunal’s statutory tasks is s.414(1) of the Act, which requires the Tribunal to “review” “RRT-reviewable decisions”.[29] The key to determining the nature and scope of the obligations s.414(1) of the Act imposes on the Tribunal, therefore, rests in the meaning of the word “review”.
[29] The obligation to review arises only in relation to a valid application for review made under s.412 of the Act.
In Minister for Immigration & Multicultural Affairs v Anthonypillai[30] the Full Federal Court said that the following passage from the reasons for judgment of Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs[31] accurately describes the review the Tribunal is required to undertake by s.414(1) of the Act:
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.
[30] [2001] FCA 274 at [69] and [70] (Heerey, Goldberg and Weinberg JJ)
[31] (1979) 24 ALR 577 at 589. The comments in this case were directed to the functions of the Administrative Appeals Tribunal.
However useful this passage may be to explaining the notion of a “review”, it only refers to the purpose for which a review is undertaken. But a “review” is a process, and the passage does not describe what the Tribunal must do in the course of a review. In that regard, it is useful to remember that the word “review” has “no settled pre-determined meaning” and that it “takes its meaning from the context in which it appears”.[32] The context in which “review” appears in s.414(1) is Part 7, Division 2 of the Act. It is therefore necessary to consider whether any of the provisions in that Division shed light on the scope of the “review” the Tribunal must carry out under s.414(1) of the Act. And there are a number of provisions to consider.
[32] Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 261 (Mason CJ and Brennan and Toohey JJ) quoted with approval by French CJ in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [10] in connection with the jurisdiction of the Migration Review Tribunal to conduct a review conferred by s. 348 of the Act.
First, there is s.415 of the Act. That section identifies the ends to which the Tribunal is required to review a decision, the powers that are conferred on the Tribunal to enable it to achieve those ends, and the effect of decisions the Tribunal makes at the end of a review. For most cases,[33] the end of a review of a decision under s.414(1) is for the Tribunal to affirm, vary or set aside the decision and, where the Tribunal sets aside a decision, to substitute a new decision.[34] To achieve these ends, the Tribunal is granted all the powers and discretions that are conferred by the Act on the person who made the decision.[35] And if the Tribunal varies the decision or sets aside the decision and substitutes a new decision, the decision, as varied or substituted is taken to be a decision of the Minister.[36] In broad terms, therefore, s.415 of the Act requires the Tribunal to form “the requisite state of satisfaction under s 65 of the Migration Act in respect of the criterion (or criteria) for a visa in issue before it”,[37] those criteria being the criteria set out in s.36(2)(a) and s.36(2)(aa) of the Act.
[33] Subsection 415(2)(c) provides that if the decision relates to a prescribed matter, the Tribunal may remit the matter for reconsideration in accordance with any directions or recommendations it makes (as are permitted by the regulations).
[34] Subsection 415(2)
[35] Subsection 415(1)
[36] Subsection 415(3)
[37] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ) at [32]
Section 415 does not only require the Tribunal to form the requisite state of satisfaction under s.65 of the Act. It also requires the Tribunal to do the very thing s.65 requires the Minister (or a delegate of the Minister) to do, namely, to “consider” the application for a protection visa. That point was made by the Full Federal Court in Anthonypillai:[38]
The word “consider” is defined in the Oxford English Dictionary, in part, as: “to view or contemplate attentively … examine … scrutinise … to fix the mind upon … to reflect upon”. It is precisely that obligation which s 414 imposes, albeit indirectly, upon the Tribunal.
[38] [2001] FCA 274 at [71]-[72] (Heerey, Goldberg and Weinberg JJ)
The second relevant set of provisions that define the Tribunal’s task when reviewing a decision are those that require information to be provided to the Tribunal, and which require or empower the Tribunal to obtain information. These include:
a)s.418(2), which requires the Secretary of the Department to provide to the Registrar of the Tribunal a “statement about the decision under review” that sets out the findings of fact made by the decision-maker, refers to the evidence on which those findings were based, and which gives reasons for the decision;
b)s.418(3) of the Act, which requires the Secretary of the Department to provide to the Registrar of the Tribunal documents in the possession or control of the Secretary which the Secretary considers to be relevant to the review of the decision;
c)s.424, which empowers the Tribunal to “get any information that it considers relevant”; and
d)s.425(1) of the Act which, subject to certain exceptions, requires the Tribunal to invite the applicant to appear before it “to give evidence and present arguments relating to the issues arising in relation to the decision under review”.
These provisions indicate that when reviewing a decision under s.414(1) of the Act the Tribunal must consider information that becomes available to the Tribunal under these provisions.
Third, there is s.430(1) of the Act which provides:
Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a)sets out the decision of the Tribunal on the review; and
(b)sets out the reasons for decision; and
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based.
Subsection 430(1) differentiates between four classes of information: the Tribunal’s decision on the review; its reasons for decision; its findings on any material questions of fact; and evidence or any other material on which its findings of fact were based. These four classes of information imply a chain of logical dependency between them: the Tribunal’s decision (for example, affirming the decision under review) must be based on reasons for decision (for example, the applicant is not a person who has a well-founded fear of persecution on the ground of religion); those reasons must in turn be based on findings the Tribunal has made on material questions of fact (for example, the applicant does not hold the religious beliefs he claimed to have held); and the findings must themselves be based on evidence or other matters (for example, the evidence and matters which indicate to the Tribunal that the applicant is not a person who can be believed).
Of particular significance is s.430(1)(c) of the Act which refers to “material questions of fact”. That expression contains two words, “material” and “facts” which are commonly used together in rules of court which deal with pleadings, and in particular in rules to the effect that a pleading must contain, and only contain, “material facts”.[39] In that context, the expression “material facts” means a set of facts a party to litigation asserts exist and which, if proved to exist, constitute a cause of action, or a defence to a cause of action.[40] Thus, s.430(1)(c) implies that the Tribunal must set out in a statement it prepares under s.430(1) of the Act (430 statement) not only material facts the Tribunal is satisfied exist, but also material facts the Tribunal is not satisfied exist.
[39] See, for example, r.16.02(1)(d) of the Federal Court Rules 2011 (Cth)
[40] See, for example, Xu v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 425 at 437 (Whitlam and Gyles JJ): “Material facts are those which are necessary to constitute a cause of action or ground for relief.”
Also of significance is s.430(1)(d) of the Act. That paragraph requires the Tribunal to refer to the evidence or any other material on which its findings of the existence or non-existence of facts are based. Evidence of a fact implies some logical relation between the evidentiary fact and the fact of which it is evidence, and such logical relation, if not obvious or direct, must usually be identified by a process of reasoning. It therefore follows that the Tribunal, when making a finding of fact based on evidence or the absence of evidence, must engage in reasoning that links the evidence or other matters before it with the findings of fact it makes on the basis of such evidence or other matters.
When taken together, these provisions contemplate or imply that in carrying out a review under s.414(1) of the Act, the Tribunal must at the very least do the following:
a)It must “consider” the information that is provided to it or which the Tribunal obtains under s.418, s.424 or s.425 of the Act. That is, it must “view or contemplate attentively … examine … scrutinise … to fix the mind upon … [or] to reflect upon” that information.
b)The Tribunal must consider the information, or, stated another way, engage in a process of reasoning in relation to such information, for the purpose of:
i)identifying the “material questions of fact”; that is, identifying the facts asserted by the applicant or which are apparent from the information before it which, if accepted by the Tribunal, would satisfy the criteria specified in s.36(2)(a) or s.36(2)(aa) of the Act; and
ii)making findings on each material question of fact it has identified on the basis of evidence and other matters before it.
Given the majority decision in Minister for Immigration and Multicultural Affairs v Yusuf,[41] it is important that I be clear that I do not intend to say that s.430(1) of the Act requires the Tribunal to undertake the tasks I have identified in paragraph 26(b) and that, if the Tribunal fails to do so, it will be found to have committed a jurisdictional error. All I intend to say is that s.430(1) of the Act contemplates or assumes that, when conducting a review under s.414(1) of the Act, the Tribunal would carry out tasks which will enable the Tribunal to set out the information s.430(1) of the Act requires it set out in a 430 statement; and to the extent the Tribunal does not record in a 430 statement such information, it could be inferred the Tribunal did not undertake the tasks s.430(1) contemplates the Tribunal would carry out when undertaking a review and that, therefore, the Tribunal did not conduct the review it was required to conduct under s.414(1) of the Act.
[41] (2001) 206 CLR 323
What I say in paragraph 27 follows from the majority’s decision in Minister for Immigration and Multicultural Affairs v Yusuf.[42] In that case, the Full Federal Court held that s.430(1)(c) of the Act requires the Tribunal to record in a 430 statement the objectively ascertainable material questions of fact that were before the Tribunal, and to the extent the Tribunal fails to do so, it commits a jurisdictional error. The majority in the High Court, however, held that s.430(1)(c) only required the Tribunal to record what the Tribunal actually considered were the material questions of fact.
[42] (2001) 206 CLR 323
The majority in Minister for Immigration and Multicultural Affairs v Yusuf did not hold, however, that the Tribunal could ignore the material questions of fact that were before it. That is made clear in passages from the reasons for judgment of the plurality and the separate reasons for judgment of Gleeson CJ which state that the failure of the Tribunal to identify in a 430 statement a material question of fact may indicate that the Tribunal did not consider that question and because of that failure may have made a jurisdictional error. Thus, the plurality said:[43]
It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.
[43] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 ([69]) (emphasis in original)
And Gleeson CJ said:[44]
By setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction, or error of a kind falling within a ground in s 476(1) other than s 476(1)(a), or may provide some other ground for judicial review. There may be cases where it is proper to conclude that the Tribunal has not set out all its findings. The consequences that might follow are not presently in issue.
[44] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 331-332 ([10])
The meaning I have assigned to the word “review” on the basis of s.415, s.418, s.424, s.425, and particularly s.430(1) of the Act is consistent with what the Full Federal Court in two cases has said is the nature of the Tribunal’s obligation to conduct a review. First, in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs, the Full Federal Court said:[45]
It is central to the exercise of the dispositive powers conferred by s 415 that the Tribunal has first conducted a review. That is to say it must have considered the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself. So much is contemplated by ss 423, 424, 425 and 426 of the Act.
In conducting its review the Tribunal must have regard to the criteria for the grant of a protection visa and in particular the criterion that the applicant for a visa is:‘... a non-citizen in Australia to whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;’ (s 36(2)(a) read with s 415(1))
The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision.
[45] [2003] FCAFC 184 at [44]-[46]
Second, in Minister for Immigration and Border Protection v MZYTS the Full Federal Court said that the:[46]
[L]awful formation of that state of satisfaction [under s.65 of the Act] (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.
[46] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ) at [34]
The Full Federal Court also said that a “failure to consider the claim advanced by a visa applicant is plainly and uncontroversially a failure to perform the statutory task imposed on the Tribunal”.[47]
[47] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ) at [62]
Proving Tribunal failed to perform statutory task by not referring to claim
In all cases, other than cases alleging actual bias or bad faith, whether or not the Tribunal failed in its statutory task to review a decision by failing to consider a claim or an asserted fact that raised a material question of fact, must be assessed by reference to the Tribunal’s reasons for decision. Such assessment will in the first instance depend on whether the Tribunal referred to the claim at all.
In that regard, the following passage from the decision of the Full Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs is often referred to for guidance:[48]
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
[48] [2004] FCAFC 184 (French, Sackville and Hely JJ) at [47]
That the Tribunal, however, may have referred to a claim or asserted fact does not necessarily mean the Tribunal considered that claim or asserted fact. That is apparent from the Full Federal Court’s reasoning in Minister for Immigration and Border Protection v MZYTS. There, the Court found the Tribunal did not consider a claim because the Tribunal’s reasons:
a)showed that “the Tribunal did not assess in any real or active way” the applicant’s claim;[49]
b)did not disclose any “consciousness of the contents” of the claim “as opposed to their existence”;[50] and
c)did not disclose “any evaluation”[51] of the material or any “process of weighing evidence and preferring some over the other”.[52]
[49] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ) at [39]
[50] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ) at [41]
[51] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ) at [45]
[52] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ) at [50]
There is an additional, and distinct basis for inferring the Tribunal did not perform its statutory tasks of review; and that is one based on the Tribunal’s failure to record information of the sort referred to in s.430(1) of the Act. It was held in Minister for Immigration and Multicultural Affairs vYusuf that where it is contended the Tribunal did not identify, and therefore did not consider, a material question of fact, the Tribunal’s not recording in a 430 statement such material question of fact “entitles a court to infer that [that] matter . . . was not considered by the Tribunal to be material”.[53]
[53] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 ([69])
In my opinion, the same reasoning applies to information referred to in s.430(1)(d) of the Act. That is, where it is contended the Tribunal did not refer to evidence in relation to a finding it made on a material question of fact, the Tribunal’s not referring in a 430 statement to such evidence may entitle a court to infer that the Tribunal did not base any findings of fact on that evidence.
How should the issues be framed?
In light of the provisions of the Act and the cases I have discussed, whether or not the Tribunal in the case before me committed a jurisdictional error in relation to the applicant’s claim will depend on the following:
a)whether the fourth asserted fact to which I refer in paragraph 1(d) of these reasons was a “material question of fact”;
b)if so, whether the Tribunal’s reasons disclose that the Tribunal identified the fourth asserted fact and, if so, whether it made a finding in relation to the asserted fact;
c)if (b) is answered in the affirmative, whether the Tribunal’s reasons referred to the evidence or other matters on which it relied in making such facts; and
d)in addition to, or instead of (b) and (c), whether the Tribunal’s reasons disclose that the Tribunal considered the fourth asserted fact.
Was the fourth asserted fact a material question of fact?
The passages from the reasons for judgment of Gleeson CJ and the plurality in Minister for Immigration and Multicultural Affairs vYusuf assume it is for a court exercising judicial review jurisdiction to conclusively determine what are the material questions of fact before the Tribunal. That assumption is correct. First, the facts about which the Tribunal is required to be satisfied before it can conclude the applicant satisfies the criteria specified in s.36(2)(a) or s.36(2)(aa) of the Act are facts whose materiality is prescribed by law, namely s.36(2)(a) and s.36(2)(aa) of the Act, and it is for a court to determine what facts those provisions prescribe to be material.[54] Secondly, it is also for the court exercising judicial review jurisdiction to determine whether there is any evidence on the basis of which it is open to the Minister or the Tribunal to be satisfied of the matters specified in s.36(2)(a) or s.36(2)(aa).[55]
[54] As Jordan CJ said in Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420: “if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply “a wrong and inadmissible test” . . . or to “misconceive its duty” or “not to apply itself to the question which the law prescribes” . . . or “to misunderstand the nature of the opinion which it is to form”: . . . in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law . . .”
[55] See The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Proprietary Limited (1953) 88 CLR 100 at 119 where the plurality (Dixon CJ and Williams, Webb and Fullagar JJ) referred to “the distinction between on the one hand a mere insufficiency of evidence or other material to support a conclusion of fact when the function of finding the fact has been committed to the tribunal and on the other the absence of any foundation in fact for the fulfilment of the conditions upon which in point of law the existence of the power depends.”
There is no doubt, and I do not understand the Minister to have otherwise submitted, that the fourth asserted fact was a material question of fact that was before the Tribunal. If the asserted fact were accepted by the Tribunal, the criterion specified in s.36(2)(aa) would have been satisfied. And there is no doubt that the country information on which the applicant relied to prove the asserted fact was such that it would have been open to the Tribunal to accept it and, on the basis of that information, be satisfied as to the existence of the fourth asserted fact.
Did the Tribunal identify the fourth asserted fact?
As I say earlier in these reasons, the Tribunal accurately set out the fourth asserted fact in paragraph 64 of the Tribunal’s reasons. From that description, I conclude that the Tribunal did identify the fourth asserted fact.
Did the Tribunal make a finding in relation to the fourth asserted fact?
The answer to this question turns on the construction of the passage in paragraph 88 of the Tribunal’s reasons I have set out in paragraph 10 of these reasons, and which I again set out here:
The Tribunal finds that the treatment the applicant can expect on return to Sri Lanka after having departed illegally does not amount to Convention-based persecution. Further to this, the Tribunal does not accept that being questioned and detained for up to a number of days amounts to torture, cruel and inhuman treatment or punishment, or degrading treatment or punishment, and does not amount to significant harm as it is defined in s.36(2A) [sic] and s.5(1) of the Act.
This passage contains two sentences. The first is a conclusion that the harm the applicant claimed he would face did not amount to “Convention-based persecution”. This could be construed as a finding on the fourth asserted fact, but only if the facts on which the applicant relied for protection under s.36(2)(aa) entirely overlapped with the claims the applicant made for protection under s.36(2)(a). There is no such overlap. The country information on which the applicant relied in support of the fourth asserted fact concerned harm the applicant claimed any person in general, and any minor in particular, had a real risk of encountering in a prison in Sri Lanka. For example, the applicant relied on country information that showed or suggested that Sri Lankan prisons were overcrowded, giving rise to a host of issues such as poor sanitation and shortage of drinking water and exposure to the elements;[56] and he relied on information that specifically concerned the experience in Sri Lankan prisons of minors between the ages of 16 and 18 years.[57]
[56] CB135-138, [61]-[67]
[57] CB138, [68]-[69]
The second sentence could be considered to be a finding on the fourth asserted fact if the harm referred to in the fourth asserted fact was restricted to harm flowing from interrogation or being in detention for a number of days. The asserted harm, however, is not so restricted. The asserted harm was that there was a real risk of harm which would occur to the applicant as a result of his being detained in a Sri Lankan prison, and in the circumstance that he would be so detained even though the applicant is a child aged between 16 and 18 years.
In my opinion, therefore, the Tribunal did not make a finding on the fourth asserted fact, and for that reason, the Tribunal did not perform the review it was required to perform under s.414(1) of the Act. Further, by not making a finding on the fourth asserted fact, it would be open to me to conclude, and I do conclude, that the Tribunal made no such finding because it did not consider the fourth asserted fact to be a material question of fact and that it consequently misunderstood the questions it was required to consider when assessing whether the applicant satisfied the criterion specified in s.36(2)(aa) of the Act.
Did the Tribunal refer to the evidence on which its findings were based?
Assuming, contrary to what I have found, the Tribunal did make a finding on the fourth asserted fact, I need to consider whether the Tribunal referred to the evidence or any other material on which the finding was based.
In my opinion, the Tribunal did not refer to the evidence or any other material on which its finding was based. It is true the Tribunal set out or referred to country information on which the applicant relied; but that information supported the fourth asserted fact. What the Tribunal did not refer to is evidence or matters on which it based (on what for the purpose of this part of my reasons I assume was) its finding that it was not satisfied of the existence of the fourth asserted fact. From that I infer that the Tribunal would not have based its finding on any evidence or other matter. Thus, if, contrary to what I have found, the Tribunal was not satisfied of the existence of the fourth asserted fact, the Tribunal failed to perform its statutory task of review under s.414(1) of the Act.
Did the Tribunal otherwise consider the fourth asserted fact?
Again, assuming contrary to what I have found the Tribunal made a finding on the fourth asserted fact, I am of the opinion the Tribunal did not consider the fourth asserted fact. The Tribunal “did not assess in any real or active way” [58] the fourth asserted fact; and the Tribunal did not disclose in its reasons “any evaluation”[59] of the material on which the applicant relied to establish the fourth asserted fact or any “process of weighing evidence and preferring some over the other”.[60]
[58] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ) at [39]
[59] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ) at [45]
[60] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths and Mortimer JJ) at [50]
Conclusion
For these reasons, the applicant succeeds on his first ground.
Ground 3 – considering the wrong question
The applicant claims the Tribunal made a jurisdictional error because it did not consider the question the applicant’s claim posed. That question was whether the country information on which the applicant relied showed there was a real risk of harm if he were to be detained in a prison in Sri Lanka. The question the Tribunal considered, however, was whether the applicant’s being detained for up to a number of days and his being interrogated during this period amounted to a significant risk of harm.
In my opinion, this ground is in substance the same ground as the first ground of review that I have considered or, at any rate, is based on the same facts and considerations as the first ground. As I have already found, the Tribunal did not make a finding in relation to the fourth asserted fact. To that extent, it did not consider an essential issue on which the applicant’s claim for protection was based and, therefore, the Tribunal made a jurisdictional error.
Relief
When I heard this matter, there was in force the Migration (Unauthorised Maritime Arrival) Regulation 2013 (Cth) (UMA Regulation). The effect of that regulation was to deny persons in the position of the applicant in this case the right to be granted a protection visa. In those circumstances, the applicant applied for leave to amend the application to include a claim for a declaration that the Tribunal’s decision was not made according to law.
I decided that I would hear and determine the claim as framed on the existing application, noting that if I were to conclude the applicant did not establish jurisdictional error, I would dismiss the application, but if I were to conclude that the Tribunal did make a jurisdictional error, I would simply publish my reasons and set the matter down for hearing on the question of remedy.
The Senate of the Commonwealth Parliament disallowed the UMA Regulation on 27 March 2014. There may therefore be no need for the applicant to press for a declaration, or for the parties to make any submissions as to remedy.
In those circumstances, I propose to make orders setting aside the Tribunal’s decision and requiring the Tribunal to consider the applicant’s claim according to law. I also propose to order that the Minister pay the applicant’s costs. However, in case there is any issue about the relief that should be granted on this application, I will also order that these orders not take effect until three weeks after I pronounce them, and grant the parties liberty to apply in the meantime to vary, add to, or discharge the orders.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 9 May 2014
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