SZUQB v Minister for Immigration and Border Protection
[2016] FCCA 2180
•25 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUQB v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2180 |
| Catchwords: REASONS – Adequacy of reasons – sufficiency of phrase “for the reasons above” when used in connection with s.36(2)(a) and also with s.36(2)(aa) of the Migration Act 1958 (Cth) notwithstanding different issues for consideration – no error in using that phrase in both contexts in the facts of this case. CLAIMS – Review of authorities. LEGAL PRACTITIONERS – Pro bono counsel – finest tradition of the Bar displayed by counsel appearing pro bono in migration cases. |
| Legislation: Commonwealth of Australia Constitution Act, s.75 Migration Act 1958 (Cth), ss.36(2), 474 |
| Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1 Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 |
| Applicant: | SZUQB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1829 of 2014 |
| Judgment of: | Judge Wilson |
| Hearing date: | 23 May 2016 |
| Date of Last Submission: | 23 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 25 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser |
| Counsel for the First Respondent: | Mr P. Knowles |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed on 2 July 2014 is dismissed.
The applicant pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1829 of 2014
| SZUQB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
At the heart of this case was the sufficiency of the consideration given by the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), to the applicant’s contentions in respect of the complementary protection criterion under s.36(2)(aa) of the Migration Act1958 (Cth) (“the Act”).
The Tribunal found that the applicant did not meet the criteria for the grant of a Protection (Class XA) visa under s.36(2)(a) of the Act.
It so found after canvassing 41 paragraphs of reasons.[1] In one paragraph of a little over four lines the Tribunal rejected the complementary protection claim, allegedly “based on the findings above”, that is to say, those findings relevant to the
Refugee Convention.[2] The issue in this case was whether the consideration given by the Tribunal in those four lines was a sufficient consideration of the applicant’s contentions on point.
[1] Court Book filed 4 August 2014 at pp.140-148.
[2] Court Book filed 4 August 2014, p.148 at [37].
Synopsis
For the reasons that follow, in my judgment the Tribunal did in fact adequately consider the applicant’s complementary protection claim. The applicant’s claim in this proceeding must therefore be dismissed.
Factual setting of this litigation
By application filed 12 February 2013 the applicant sought a Protection (Class XA) visa.[3] In that application, the applicant stated that he was born on 2 June 1980 in Bangladesh, he belonged to the Bangladeshi ethnic group and that he was Islamic. In answer to question 66 on the visa application he stated that “a false case” was pending against him in Bangladesh.[4] He stated that he had received assistance in completing the visa application from a person known as Sirajul Haque, the applicant’s migration agent.
[3] Court Book filed 4 August 2014 at pp.1-34.
[4] Court Book filed 4 August 2014 at p.13.
The applicant supplied a 19-paragraph statement dated
2 December 2013 in support of his visa application.[5] The following were the more salient matters that emerged from that statement –
[5] Court Book filed 4 August 2014 at pp.32-34.
a)The applicant failed his HSC examination in 2003 “due to ceaseless work in politics”;[6]
[6] Court Book filed 4 August 2014, p.33 at [9].
b)he joined the youth wing of the Bangladesh Nationalist Party (“BNP”) and in 2005 he was elected as the executive member of the youth wing;
c)in January 2007 an army-backed caretaker government was installed at which time an estimated 200,000 political leaders and activists were arrested, mostly from BNP;
d)on 3 March 2007 the applicant was arrested, detained and tortured;
e)
on 4 November 2007 the applicant left Bangladesh for the
United Arabic Emirates (“UAE”) where he stayed for three years, returning to Bangladesh on 2 January 2011;
f)the applicant was elected to the position of joint convener of the youth wing of the BNP in November 2011 at which time he extended his political activities on account of which his “political opponent was very upset” with him;[7]
g)on 22 April 2012 the applicant led a procession in front of the BNP office leading to police intervention and injury to the applicant;
h)on a date in April 2012, persons called “Awami goons” attacked the applicant with the intention of killing the applicant as a result of which the applicant was rescued but the event “totally shocked” the applicant and he became “scared about his life”;[8]
i)in May 2012 a case was filed against the applicant, the details of which he did not give; and
j)the applicant stated he will be persecuted if he returns to Bangladesh.
[7] Court Book filed 4 August 2014, p.33 at [14].
[8] Court Book filed 4 August 2014, p.34 at [16].
On 29 May 2013 the Department of Immigration and Citizenship invited the applicant to attend an interview on 21 June 2013.[9] That date was later changed to 22 July 2013, then to 12 August 2013 and then to 23 September 2013.[10]
[9] Court Book filed 4 August 2014 at pp.42-44.
[10] Court Book filed 4 August 2014 at pp.46-54.
On 15 November 2013, the delegate (“the delegate”) of the
Minister for Immigration and Border Protection (“the Minister”) decided to refuse the applicant’s visa application.[11]
[11] Court Book filed 4 August 2014 at pp.56-73.
Being dissatisfied with the delegate’s decision, the applicant applied for review before the Tribunal.[12]
[12] Court Book filed 4 August 2014 at pp.75-99.
The Tribunal invited the applicant to appear before it on
17 April 2014.[13] On that date the Tribunal received information from the applicant. The hearing was adjourned to 3 June on which date the hearing resumed. On 10 June 2014 the Tribunal provided its reasons for decision dated 6 June 2014 pursuant to which the Tribunal affirmed the delegate’s decision.
[13] Court Book filed 4 August 2014 at pp.107-108.
It is necessary to address in some little detail how the Tribunal reasoned to affirm the delegate’s decision not to grant the applicant a Protection (Class XA) visa.
The Tribunal’s reasoning
The Tribunal correctly recited the criteria for a protection visa.
The Tribunal stated that the applicant was neither a person in respect of whom Australia had protection obligations under the
Refugee Convention or on other complementary protection grounds or was a member of the same family unit as such person and that other person held a protection visa. The Tribunal defined as
“the complementary protection visa”the matters recorded in paragraph 6 of its reasons.[14]
[14] Court Book filed 4 August 2014 at p.141.
So far as the claims and the evidence in the case were concerned, between paragraphs 9, 10 and 11 of the Tribunal’s reasons the Tribunal recited uncontroversial information, deduced largely from the visa application document itself.[15]
[15] Court Book filed 4 August 2014 at p.142.
In paragraph 12 of its reasons, the Tribunal paraphrased the matters that arose from the applicant’s statement, some of which, although not all of which, were set out above in paragraph 5 of these reasons for judgment.
The Tribunal encapsulated the claims made by the applicant in the following terms –
a)the applicant was a citizen of Bangladesh;
b)
he left his country in 2012 and feared returning to Bangladesh because he was and will be harmed there by authorities,
the police, the Rapid Action Battalion (“RAB”) and by the
Awami League and its supporters by reason of his activities and positions within the BNP;
c)
the applicant was arrested, detained and ill-treated in March 2007; he departed Bangladesh for the UAE in 2007 where he lived for three years so as to escape harm in Bangladesh; upon his return he was targeted for harm by Awami League supporters;
he was injured by the RAB and police when he led a political procession in April 2012; he was injured in 2012 by
Awami “goons”; a false case was filed against him in
May 2012; and from June 2012 he was moving around to avoid harm prior to travelling to Australia; and
d)the applicant claimed he was unable to get protection from the harm he feared and now faces in his country.
To my way of thinking, the Tribunal correctly identified and articulated the “claims” advanced by the applicant. It seems to me that the Tribunal fully and comprehensively complied with its obligations in that regard in accordance with well-known authorities of which examples include Dranichnikov v Minister for Immigration and Multicultural Affairs,[16] Htun v Minister for Immigration and Border Protection,[17] Paramananthan v Minister for Immigration and Multicultural Affairs,[18] Sellamuthu v Minister for Immigration and Multicultural Affairs,[19] SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs[20] and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2).[21]
[16] (2003) 77 ALJR 1088.
[17] (2001) 194 ALR 244.
[18] (1998) 94 FCR 28.
[19] (1999) 90 FCR 287.
[20] (2003) 129 FCR 137.
[21] (2004) 144 FCR 1.
The Tribunal then addressed each of those claims recorded above.
In paragraph 23 of its reasons the Tribunal recorded that it had considered country information including country information supportive in a general way of the existence of political violence in Bangladesh, of corruption, bribery and of human rights abuses.
The Tribunal also correctly expressed the elements it needed to consider in respect of ss.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal accepted a number of the claims advanced by the applicant. It is not necessary to address those here. Importantly,
the Tribunal did not accept as true certain key aspects of the applicant’s version of events. Those issues that the Tribunal did not accept included that the applicant left Bangladesh and travelled to the UAE in 2007 so as to avoid harm in Bangladesh as he contended. The Tribunal reasoned in paragraph 26 of its reasons that the applicant left Bangladesh in 2007, not on account of the avoidance of harm, but for work, as his passport revealed. The Tribunal recorded in that same paragraph that the applicant may have made certain entries on his UAE visa which may not have been strictly correct. The Tribunal stated that nonetheless, the applicant’s inability to explain how he survived in the UAE financially led the Tribunal to conclude that the applicant left Bangladesh in 2007 so as to travel to the UAE for work, that he in fact worked there and then returned to Bangladesh when his work in the UAE ended. The Tribunal stated that it did not accept as true his contention that he left Bangladesh for the UAE on account of feared harm. The Tribunal found that he left for work, which he did, then he returned.
To my mind that was an important finding. As it happened it was a finding adverse to the applicant. Nevertheless, that finding was entirely open on the material.
At paragraph 27 of its reasons the Tribunal stated that it did not accept as true that the applicant feared harm in his country or that he was unable to return to his country for the reasons he gave. The Tribunal did not accept as true that the applicant was harmed, harassed or threatened at any time in his country as he claimed, or that some case was filed against him or that he left Bangladesh in 2007 or in 2012 so as to avoid harm.
Again, those were important findings of fact, reasonably open on the evidence.
The Tribunal stated that it did not accept that there was a real chance that the applicant would suffer harm amounting to serious harm or that there was a real risk he would suffer significant harm in his country if he returned for the reasons he claimed.
Again, that was a critical finding that represented a major hurdle, if not an insurmountable obstacle to the applicant’s assertions in relation to his case under s.36(2)(a) of the Act. It was also a critical finding in relation to the case advanced by the applicant in relation to s.36(2)(aa) of the Act.
At a broader level, the Tribunal made the very seriously adverse finding against the applicant that was recorded in paragraph 28 of its reasons. There, the Tribunal found that the applicant had not given credible evidence about his claims. The Tribunal found that the applicant changed and embellished his evidence before the Tribunal to answer the Tribunal’s concerns about this case.
[22] (2000) 168 ALR 407 at [67].
The applicant did not challenge that finding in this case. Nor could he reasonably have done so. That is not to say that any Tribunal finding about credit is impervious to review. A credit finding that is perverse according to other evidence or which is against the weight of other evidence may be upset. The cases of that variety are not common. More usual is the credit finding of the sort made in this case by the Tribunal after seeing, hearing, testing and engaging with the
applicant. In those circumstances, the observations of McHugh J in
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[22]apply with full force when his Honour famously held that that a finding of credit is the function of the primary
decision-maker par excellence.
The Tribunal’s finding about the applicant’s credit had an all-pervading effect. It bore upon the Tribunal’s consideration of all claims in this case. In short, the Tribunal did not believe the applicant “about his claims”.[23] The Tribunal did not limit its reference to any particular species of claims when it stated that the applicant had not given credible evidence about his claims. In other words, the Tribunal did not distinguish between the claims made in respect of s.36(2)(a) or those in respect of s.36(2)(aa) of the Act. To my mind, there is no warrant to attempt to tease out of that phrase a distinction in the claims to which the phrase referred. Specifically, the general finding that the applicant did not give credible evidence was open to the Tribunal as the Tribunal was par excellence best placed to assess credit issues.
[23] Court Book filed 4 August 2014, p.145 at [28].
The Tribunal did descend to the detail, however. In paragraph 29 of its reasons the Tribunal stated that it considered that the applicant had embellished his evidence about where he was living in his country prior to coming to Australia and that such embellishment was for the purpose of giving him a better chance of getting a protection visa so as to enable him to remain in Australia.
In the same paragraph the Tribunal stated that it did not accept as true that the applicant was threatened with harm in his country for the reasons that he asserted or that he moved around to avoid harm in his country.
The finding that the applicant embellished certain parts of his evidence so as to give him a better chance of getting a protection visa was a credit finding which the Tribunal was best placed to make.
The rejection of the applicant’s assertion that he was threatened with harm in his country for the reasons he gave was also open to the Tribunal. Both findings were damaging to the applicant’s case in this litigation. The finding of embellishment and the rejection of the applicant’s assertions of threat of harm bore directly upon aspects of his protection claim as well as his complementary protection claim.
The Tribunal went on to find in paragraph 30 of its reasons that the applicant was evasive and untruthful about his occupation prior to coming to Australia. In the same paragraph the Tribunal rejected the applicant’s assertion that he was involved in political activities or that he held the political positions he asserted that he held in Bangladesh. Similarly, those findings in paragraph 30 of the Tribunal’s reasons were damaging to the applicant’s case that he feared harm if he returned to Bangladesh by reason of his prior political association with the BNP.
The Tribunal did not accept as true that the applicant was involved in or led a political demonstration in his country in April 2012 or that he was attacked by the Awami League in June 2012 or that a false claim was filed against him. Those were factual matters the findings of which involved the determination of the applicant’s believability.
The Tribunal did not believe the applicant on those matters.
The Tribunal was entitled to reach those conclusions despite the fact that those conclusions were adverse to the applicant.
The Tribunal said it considered that the applicant embellished his evidence in respect of attacks on him in Bangladesh. That was in paragraph 30 of the Tribunal’s reasons. When the applicant explained why he had not reported such attacks to the police, the Tribunal stated that it did not consider his explanation was reasonable or plausible.
The Tribunal went further by stating that it considered that the applicant was embellishing his evidence before the Tribunal so as to give his claims credibility. As with the earlier finding of embellishment, that reference to embellishment in paragraph 31 of the reasons was non-specific and it was expressed “to give his claims credibility”.[24] Importantly, that was a plural reference to “claims” not to a somehow differentiated protection claim as opposed to a complementary protection claim.
[24] Court Book filed 4 August 2014 at p.146.
The Tribunal rejected the assertion that the applicant was a BNP supporter. Specifically, in paragraph 32 of its reasons, the Tribunal found that the applicant had no contact with the BNP since his arrival in Australia.
The Tribunal stated in paragraph 33 of its reasons that the documents produced by the applicant were not reliable sources of the evidence of the facts purportedly expressed in them. The Tribunal did not precisely identify the documents it meant for the purpose of that finding. However, in the court book were two documents adduced by the applicant, one from the Bangladesh Nationalist Youth Party dated
13 June 2013 and the other from the BNP also dated 13 June 2013.[25] Both documents purported to address the applicant’s involvement in and contribution to the BNP. The Tribunal did not accept the validity of those documents.
[25] Court Book filed 4 August 2014 at pp.48-49.
In view of the Tribunal’s rejection of those documents and its rejection of the applicant’s assertions in respect of his alleged connection with the BNP and his profile within it, to say nothing of its findings about the applicant’s credibility in relation to his claims generally, very little material survived by which the Tribunal was able to assess the applicant’s protection claims and his complementary protection claims.
That was by no means the end of the matter, as the Tribunal specifically addressed factual matters relevant to its determination of the protection visa. That was done at paragraphs 34 and 35 of the Tribunal’s reasons. In essence, the Tribunal stated that it did not accept that the applicant feared harm in his country for the reasons he advanced. The Tribunal stated that it did not accept that the applicant could not return to Bangladesh for the reasons he asserted.
The Tribunal stated that it did not accept that there was a real chance or real risk that the applicant would face harm in Bangladesh because of his political profile or because of his political connections or because of his political activities in Bangladesh. The Tribunal stated that it did not accept that the applicant was targeted for harm by the persons he said or for the reasons he said. The Tribunal stated that it did not accept that there was a real chance the applicant would, in the future, suffer harm or harm amounting to serious harm. The Tribunal stated that it did not accept that there was a real risk he would in the future suffer significant harm in Bangladesh for the reasons asserted if he were to return to Bangladesh.
Paragraph 35 of the Tribunal’s reasons recorded its conclusions in relation to the protection claim. In it, the Tribunal stated that no plausible evidence was before it that –
a)the applicant had suffered persecution in Bangladesh;
b)the applicant had a real chance of suffering persecution there from authorities in Bangladesh, the Awami League, the police, the RAB or from anyone else because –
i)of his political opinion, or imputed political opinion; or
ii)he was a member of a particular social group; or
for any other Convention reason, now or in the reasonably foreseeable future if he returned to Bangladesh.
So far as its treatment of the complementary protection issue was concerned, in paragraph 37 of its reasons the Tribunal stated it was similarly not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there was a real risk that the applicant would suffer significant harm for the purposes of s.36(2)(aa) of the Act.
The Tribunal affirmed the delegate’s decision, as mentioned above.
Review in this court
The application[26] put forward three grounds of review, although
Mr B. Zipser, counsel for the applicant in the hearing before me, advanced only the third ground. In it, the applicant stated –
The Second Respondent made jurisdictional error not considering this review in accordance with s36(2)(aa) (“the complementary protection”] (sic)[27]
[26] Application filed 2 July 2014.
[27] Application filed 2 July 2014 at p.3.
Before me, Mr Zipser appeared pro bono for the applicant. At once may I record my gratitude for his appearance in this case on a pro bono basis. Counsel appearing pro-bono adopt the finest traditions of the Bar in fearlessly advocating for a client otherwise unable to meet his or her legal fees. Counsel appearing pro bono selflessly put the interests of their client ahead of their own financial interest. In the process they ensure their client receives legal representation that the client would not otherwise have. In other words, where access to justice might otherwise have been unavailable on account of a client’s financial incapacity, barristers appearing pro bono thereby ensure that their client in fact gets access to justice and is not otherwise shut out on account of personal resources or the lack thereof. Mr Zipser’s exemplary lead should be followed.
Quite properly, Mr Zipser told me he abandoned all grounds of review except ground three. In support of ground three Mr Zipser advanced two main contentions. Let me take each in turn -
a)first, Mr Zipser submitted in his written submissions[28] that the Tribunal did not expressly consider whether the applicant might be a BNP supporter or activist if the applicant was required to return to Bangladesh; and
b)second, Mr Zipser contended in his oral submissions that the Tribunal did not, or did not adequately, consider the complementary protection component of the applicant’s claim as the only reference to any such consideration was in paragraph 37 of the Tribunal’s reasons and the reasoning in that paragraph did not expose the chain of reasoning leading to the conclusion that s.36(2)(aa) of the Act was not satisfied in the circumstances of this case.
[28] Outline of Submission for Applicant for Hearing on 23 May 2016 filed 17 May 2016.
It is more purposeful to take the second of Mr Zipser’s points first.
At first blush, it is superficially attractive to say that the Tribunal failed to address, or to adequately address, the complementary protection claim because the conclusion expressed in paragraph 37 of the reasons was not based on specifically identified findings of fact relevant to the specific section, namely s.36(2)(aa) of the Act. Initially, after hearing Mr Zipser’s arguments on the point it struck me that the argument had merit. That was all the more when one was unable to distil which findings supported the conclusion expressed about the complementary protection proposition and which findings went to other points.
However, on closer examination the point was not as good as I first thought.
The “findings above” referred to in paragraph 37 of the Tribunal’s reasons commenced at paragraph 21 of those reasons. Paragraphs 23 and 24 of the Tribunal’s reasons involved acceptance of country information and that the applicant was who he claimed he was. In so far as those acceptances represented “findings”, nothing turned on them.
Paragraph 25 of the Tribunal’s reasons involved findings about the applicant’s travel.
Paragraph 26 involved a finding, canvassed above, that the Tribunal rejected certain evidence, especially the applicant’s assertion that he feared harm. That was a matter directly relevant to the complementary protection claim. That finding went directly to the conclusion expressed in paragraph 37 of the Tribunal’s reasons that there were no substantial grounds for believing that the complementary protection criteria had been met. At one level, that finding was sufficient to dispose of this argument.
However, the Tribunal made other findings of fact, adverse to the applicant, which bore directly on whether substantial grounds existed in relation to the complementary protection criteria. Credibility findings were repeatedly made by the Tribunal. It did not believe the applicant on key issues. Those findings were reasonably open.
The findings about fear of harm and the non-existence of there being a real risk that the applicant would suffer significant harm if he returned to Bangladesh were findings made in the context of the complementary protection criterion.
To my mind it is being obtuse and unduly pedantic for the applicant to submit that paragraph 37 of the Tribunal’s reasons did not address the complementary protection criteria. While true, the Tribunal did not repeat each finding made under a heading “complementary protection criteria” and instead, rather less expressly and more generically stated “based on the findings above”, it is nonetheless apparent that findings sufficient to dispose of the complementary protection matter were in fact considered by the Tribunal and in a way adverse to the applicant.
Mr P. Knowles of counsel for the Minister relied on two decisions of the Federal Court of Australia for the proposition that the Tribunal did not need to make separate and detailed factual findings on the discrete issue of the complementary protection claim. He submitted that the applicant’s claim to fear was predicated on a series of factual assertions which the Tribunal expressly considered and found to be untrue.
In SZSHF v Minister for Immigration and Border Protection[29] (“SZSHF”), Siopis J held that the same incidents of violence and harassment were relied on by the applicant in that case for his claims that he feared he would suffer “serious harm” if returned, in that case to Bangladesh, as well as for the complementary protection claim that there were substantial grounds for believing that there was a real risk he would suffer “significant harm” if returned.[30] Siopis J held further that the Tribunal, having rejected on credibility grounds that the applicant had suffered violence on account of the so-called political beliefs, disposed of both aspects of the claims made by the applicant. His Honour held that in undertaking that course, the Tribunal made no jurisdictional error in omitting to deal specifically with those factual matters under the rubric of complementary protection.
[29] [2014] FCA 237.
[30] [2014] FCA 237 at [26].
To my mind, that is a mirror of the situation in this case. The same result should apply.
In SZSYI v Minister for Immigration and Border Protection,[31]
Gilmour J applied the reasoning of Siopis J from SZSHF in reaching a similar conclusion where adverse findings made by the Tribunal in the consideration of the applicant’s claim under s.36(2)(a) of the Act
“weresufficient warrant to dispose of any complementary protection claims adversely to the applicants”.[32]
[31] [2015] FCA 1276.
[32] [2015] FCA 1276 at [47].
In my judgment, I should likewise apply the reasoning adopted by Siopis J and Gilmour J by concluding in this case that the adverse factual findings made in the case generally but in the specific context of the applicant’s claim under s.36(2)(a) of the Act were sufficient to dispose also, adversely of the applicant, of his complementary protection claims.
In the result, the Tribunal did not fall into jurisdictional error.
Let me turn briefly to the legal principles that apply to judicial review for jurisdictional error.
Jurisdictional error
Under the Act, the power to make decisions about matters concerning visas is given to the delegate of the Minister. The Act, and the Regulations made under it, specify the things the delegate is required to take into account when an applicant seeks a visa. Different considerations apply depending on the type of visa the applicant seeks. The underlying intention of this field of the Act is to render decisions made by the delegate impervious to review by courts. That is the import and effect of s.474 of the Act. However, s.474 of the Act is subject to s.75 of the Commonwealth of Australia Constitution Act and must be construed in conformity with established principles of constitutional law. Hence, even though s.474 of the Act purports to mean that a privative clause decision cannot be reviewed, that statutory stipulation will be effective only if the relevant decision is not infected with jurisdictional error.
In the passages below I set out (although not exhaustively) the lengths and breadths of administrative decisions that can be reviewed (because they are adversely affected by jurisdictional error) and the administrative decisions that cannot be reviewed (because they are not adversely affected by jurisdictional error).
Judicial review under s.474 of the Act
Section 474 of the Act creates a statutory scheme providing for the finality of a privative clause decision. In essence, s.474(1) of the Act provides that a privative clause decision is final and conclusive and that it cannot be challenged or appealed against, nor can it be reviewed, quashed or called into question in any court. Further, under s.474, a privative clause decision is not subject to administrative law remedies of prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
Under s.474(2) of the Act, a “privative clause decision” is a decision of an administrative character made, proposed to be made or required to be made under the Act.
Privative clauses are strictly construed, as was held by the majority (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) in the High Court of Australia in Plaintiff S157/2002 v Commonwealthof Australia[33] (“Plaintiff S157/2002”).
[33] (2003) 211 CLR 476 at [72].
That is because it is fundamental to the rule of law that persons affected by administrative decisions should have access to the courts to challenge those decisions. Gleeson CJ made that point in Minister for Immigration and Multicultural Affairs v Bhardwaj[34] (“Bhardwaj”).
But the point is of considerable veneration as is revealed by Clancy v Butchers’ Shop Employees Union,[35] Hockey v Yelland,[36] Public Service Association (SA) v Federated Clerks Union South Australian Branch and Anor [37] (“Public Service Association (SA)”) and Darling Casino Ltd v NSW Casino Control Authority.[38]
[34] (2002) 209 CLR 597.
[35] (1904) 1 CLR 181, 204.
[36] (1984) 157 CLR 124, 130.
[37] (1991) 173 CLR 132, 160.
[38] (1997) 191 CLR 602, 653.
An administrative decision will not be a valid privative clause decision if the relevant decision is infected with jurisdictional error. That is for the simple reason that an administrative decision which involves jurisdictional error is regarded in law as being no decision at all.
So much was held by the High Court in Bhardwaj.[39]
[39] (2002) 209 CLR 597, 614-615 at [51], 618 at [63] and 614-615 at [152].
The majority in Plaintiff S157/2002[40] held to like effect. Accordingly, an administrative decision made under the Act may be amenable to judicial review if the applicant seeking judicial review can establish that the administrative decision is tainted by jurisdictional error.
[40] (2003) 211 CLR 476 at [76].
The circumstances exhibiting jurisdictional error have been described in a variety of ways. In Craig v State of South Australia[41] (“Craig”) the majority of the High Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) held that jurisdictional error is at its most obvious when the inferior tribunal purports to act wholly or partly outside of the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers.[42] In the same case, it was held that an inferior tribunal can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something it lacks authority to do.[43]
[41] (1995) 184 CLR 163.
[42] (1995) 184 CLR 163 at 177.
[43] Craig v State of South Australia (1995) 184 CLR 163 at 177.
Similarly, jurisdictional error will occur where an inferior tribunal disregards or takes into account some matter in circumstances where the statute establishing the tribunal and conferring its power requires that a particular matter be taken into account or ignored as a precondition of the exercise of any authority to make an order or decision in the circumstances of the particular case.[44]
[44] Ibid.
Further, an administrative tribunal will exceed its authority and fall into jurisdictional error if it misconstrues the statute pursuant to which it was created and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of a particular case.[45]
[45] Ibid.
An administrative tribunal falls into error of law amounting to jurisdictional error with the effect of invalidating any order or decision of the tribunal if the tribunal –
a)identifies a wrong issue;
b)asks itself a wrong question;
c)ignores relevant material;
d)relies on irrelevant material; or
e)in some instances, makes an erroneous finding or reaches a mistaken conclusion.[46]
The majority (McHugh Gummow and Hayne JJ) applied that test in the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf.[47] That form of jurisdictional error is to be contrasted with the wrongful failure or refusal to exercise jurisdiction, of which Brennan J spoke in Public Service Association (SA)[48] where Brennan J held that an administrative body misconceives its jurisdiction (and thereby engages in jurisdictional error) where it fails to consider the true question it has to decide.
[46] Craig v State of South Australia (1995) 184 CLR 163.
[47] (2001) 206 CLR 323, 351 at [82].
[48] (1991) 173 CLR 132.
These are illustrations only of the ambit of jurisdictional error.[49] As the High Court in Kirk v Industrial Relations Commission (NSW)[50] held,
it was neither necessary nor possible to attempt to mark the metes and bounds of jurisdictional error as the reasoning in Craig[51] does not provide a rigid taxonomy of jurisdictional error. For that matter, as the High Court held in Minister for Immigration and Citizenship v Li and Anor[52] every statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred.[53]
That concept was recently applied by the Full Court of the Federal Court of Australia in NBMZ v Minister for Immigration and Border Protection[54] (“NBMZ”).[49] See MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [33].
[50] (2010) 239 CLR 531 at [71] and [73].
[51] (1995) 184 CLR 163.
[52] (2013) 249 CLR 332.
[53] (2013) 249 CLR 332, 348 at [23].
[54] (2014) 220 FCR 1, 33 at [149].
So far as the onus of proving jurisdictional error is concerned,
an applicant seeking judicial review must show that the approach adopted by the Tribunal manifested a legally erroneous view as to what it was about which it needed to be satisfied. The High Court made that observation in Minister for Immigration and Multicultural Affairs v Eshetu.[55]
[55] (1999) 197 CLR 611, 629 at [55].
It has been held that judicial review is concerned with whether the relevant decision was one authorised rather than it providing an appellate procedure enabling either a general review of the relevant decision or a substitution of the decision the court thinks should have been made. As recently as December 2015, the High Court so held in Plaintiff M64/2015 v Minister for Immigration and Border Protection[56] (“Plaintiff M64/2015”). In that case, the High Court approved earlier statements to similar effect in Minister for Aboriginal Affairs v
Peko-Wallsend Ltd[57] and Attorney-General (NSW) v Quin.[58][56] [2015] HCA 50 at [23].
[57] (1986) 162 CLR 24 at 41-42.
[58] (1990) 170 CLR 1 at 45-46.
In the context of administrative decision-making, the High Court instructs that courts are not astute to discerning error where an administrative officer makes a statement in the form of a broad administrative evaluation that was not, and was not intended to be, a statement of reasons in the nature of a judicial decision. Authority for that proposition is Minister for Immigration and Ethnic Affairs v Wu Shan Liang[59] as well as Plaintiff M64/2015.[60]
[59] (1996) 185 CLR 259.
[60] [2015] HCA 50.
The Full Court of the Federal Court of Australia held in Collector of Customs v Pozzolanic Enterprises Pty Ltd[61] that the reasons of the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.
[61] (1993) 43 FCR 280 at 287.
More recently, in Minister for Immigration and Citizenshipv SZMDS[62] the High Court of Australia affirmed the observations of Brennan J in Quin[63] when it held that the merits of administrative action, as distinct from the legality of administrative action, are matters for the holder of the relevant power and for that holder alone.
[62] (2010) 240 CLR 611, 619 at [19].
[63] (1990) 170 CLR 1.
Time and again the courts have held that judicial review on the ground of jurisdictional error does not mean undertaking a merits review and that a court, when undertaking judicial review for the demonstration of jurisdictional error is not permitted simply to substitute a different conclusion because the court regards that decision as preferable on the facts.[64] That said, relatively recently the Full Court of the Federal Court of Australia (Allsop CJ, Buchanan and Katzman JJ) in NBMZ[65] held that courts exercising jurisdiction under the Act need to give proper attention to the merits of the application under consideration.
That means the court must “give proper, genuine and realistic consideration to the merits of the case” according to the observations of the High Court in Minister for Immigration and Citizenship v SZJSS.[66] It seems to me that a court such as this Court can give “proper, genuine and realistic consideration to the merits of the case”[67] without thereby engaging in a merits review.
[64] See Minister for Immigration and Ethnic Affairs v GouWei Rong (1997) 191 CLR 559 at 585; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36;[65] (2014) 220 FCR 1, 33 at [151].
[66] (2010) 243 CLR 164, 174 at [26].
[67] Ibid.
Conclusion
Having carefully examined the reasons of the Tribunal against the sole ground of review advanced by the applicant in this case, I am of the view that the Tribunal made no jurisdictional error with the result that I dismiss this proceeding and order the applicant to pay the Minister’s costs. As the Tribunal entered a submitting appearance, no costs are payable to it.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 25 August 2016
Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 372 at [153]; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-287; Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222, 254 at [105]; SGLB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 176 at [20]; Minister for Immigration and Multicultural and Indigenous Affairsv SGLB (2004) 78 ALJR 992, 1005 at [73].
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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