WAAC v Minister for Immigration (No.2)
[2004] FMCA 416
•28 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WAAC v MINISTER FOR IMMIGRATION (No.2) | [2004] FMCA 416 |
| MIGRATION – Protection visa – procedural fairness – whether enough time given to obtain documentary evidence – whether jurisdictional error. |
Migration Act 1958 (Cth), ss.424A, 427
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
WAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 193
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65
NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003)
SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129
Waterford v Commonwealth of Australia (1987) 163 CLR 54
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
REGV District Court; Ex parte White (1996) 116 CLR 644
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Abebe v Commonwealth of Australia (1999) 197 CLR 510
| Applicant: | WAAC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | WZ 66 of 2002 |
| Delivered on: | 28 June 2004 |
| Delivered at: | Melbourne (by video link to Perth) |
| Hearing Date: | 29 October 2003 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Pro Bono Counsel for the Applicant: | Ms L Price |
| Counsel for the Respondent: | Mr P Macliver |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed with costs.
The Applicant shall pay the Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
WZ 66 of 2002
| WAAC |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for a declaration and consequential relief arising from a decision of the Refugee Review Tribunal (the RRT) delivered on 10 September 2001 whereby the RRT had affirmed a decision of a delegate of the respondent refusing the applicant a protection visa.
The applicant arrived in Australia as an unlawful non-citizen on 18 December 2000. He had been initially interviewed by an officer of the Department of Immigration and Multicultural and Indigenous Affairs on 2 April 2001 and at that time claimed to be a citizen of Iran born in Ahwaz Kohzisistan.
On 1 June 2001 the applicant made an application for a protection visa pursuant to the provisions of the Migration Act 1958 (Commonwealth) ("the Migration Act"). In that application he claimed that he was a citizen of Iraqi born in Alashar, Basra in Iraq. The applicant was interviewed by a delegate of the respondent on 6 June 2001. In his statutory declaration in support of the application the applicant claimed that he was born in Alashar, a suburb of Basra in Iraq, where he lived to the age of about eight and claimed to be told by his father that the family were forced to leave Iraq because their ancestors were Iranian. It was claimed that they were transported in a military truck, taken to the border and handed over to the Iranians. He claimed the family were deported from Iraq before the war started with Iran.
On 27 June 2001 the delegate made a decision refusing to grant a protection visa to the applicant ("the delegate's decision"). On 2 July 2001 the applicant applied to the RRT for a review of the delegate's decision.
By letter dated 13 July 2001 the RRT wrote to the applicant pursuant to section 424A of the Migration Act to advise that it had information which would, subject to any comment the applicant might make, be the reason or part of the reason for deciding he was not entitled to a protection visa. The tribunal advised the applicant of the nature of the information, why it was considered relevant and invited comments by 20 July 2001. A copy of the letter was sent to the then applicant's advisers. The applicant and his advisers provided responses to the letter. The applicant then gave oral evidence to the RRT at a hearing conducted on 19 July 2001 and gave further oral evidence at the continuation of the hearing on 24 July 2001.
By letter dated 14 August 2001 the applicant's advisers requested that the RRT exercise its power under section 427 of the Migration Act to appoint an independent cultural assessor to investigate whether or not the applicant was an Iraqi. The RRT declined to agree to that request. On 20 August 2001 the applicant's advisers provided written submissions to the RRT arising from the refusal of the RRT to grant the request for a referral to an independent cultural assessor. The RRT had made reference to the benefit counsel for the applicant received from Dr Lal Jabiri, a former Iraqi national and ethnic Arab, and the applicant informed he was an Iranian national. In submissions dated 20 August 2001 the applicant's advisers recited transcript relating to the provision of a fax from Dr Lal Jabiri.
On 10 September 2001 the RRT made a decision affirming the delegate's decision refusing to grant a protection visa to the applicant. The applicant, on 2 October 2001, lodged an application for review of the RRT decision in the Federal Court of Australia. The ground in the application was stated to be as follows:
I am an Iraqi who can't go back to my country. So I apply to the Federal Court.
The proceedings were transferred from the Federal Court to the Federal Magistrates Court by order on 12 April 2002. On 11 July 2002 His Honour Scarlett FM made orders that the application be dismissed and the applicant pay the respondent's costs. That decision was the subject of a notice of appeal lodged by the applicant dated 30 July 2002 heard by His Honour Carr J on 7 March 2003. Between the date of delivery of the Federal Magistrates Court decision and the hearing of the appeal to the Federal Court the High Court delivered its decision in the matter of Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 (Plaintiff S157).
In the Applicant’s Federal Court decision on appeal, (WAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 193), Carr J noted that His Honour Scarlett FM had unwittingly erred in law by taking too narrow a view of what might constitute reviewable error on the part of the tribunal. The matter was then remitted back to the Federal Magistrates Court for rehearing or further hearing according to law. An order was made in the following terms:
The application be remitted to the Federal Magistrates Court, either for rehearing or further hearing. Whether the application is to be the subject of a rehearing or further hearing is to be at the discretion of that court.
When the matter came before this court I decided the matter should be reheard given that the court was differently constituted and it would therefore be inappropriate to conduct what might be described as a "further hearing". The parties agreed that it would be more appropriate for the matter to be the subject of a rehearing, particularly in circumstances where the applicant intended to file and rely upon an amended application dated 29 October 2003.
Amended application
By the amended application dated 29 October 2003 the applicant seeks a review of the RRT decision of 10 September 2001 on the basis that the RRT made a jurisdictional error in the exercise of its statutory power by denying the applicant procedural fairness and making an erroneous finding that affected the tribunal's exercise of power. Particulars set out in the amended application are as follows:
Particulars
(a)The Tribunal unreasonably limited the time allowed to the applicant to provide documentary evidence to establish that he was a national of Iraq and not an Iranian national.
(b)The Tribunal made a critical and fundamental finding that the applicant was an Iranian national, which was an erroneous finding that affected the proper exercise of its statutory power.
(c)Consequently, the Tribunal failed to consider and make findings, as it was bound to do, on the claims put by the applicant that he had a well-founded fear of persecution in Iran because he was an Iraqi national deported from Iraq and living as a green card holder in Iran at the pleasure of the Iranian government, i.e. a member of a recognized social group.
(d)Consequently, the Tribunal failed to consider and make findings, as it was bound to do, on the claims put by the applicant that he was a deported Iraqi national living in Iran and on departure from Iran had signed a document denying any right to return to Iran.
(e)Consequently, the Tribunal failed to consider and make findings, as it was bound to do, on whether in the circumstances the applicant faced return to Iraq and as a result had a well-founded fear of persecution in Iraq for imputed political opinion and/or as a member of a recognized social group of Iraqis with Iranian ancestors deported from Iraq.
In support of the amended application the applicant sought to rely upon an affidavit of Lorraine Betty Price sworn 29 October 2003 purporting to refer to transcript of tapes of the RRT hearing.
The applicant relied upon an outline of submissions dated 29 October 2003 whilst the respondent relied upon submissions in response to the amended application dated 29 October 2003. The parties otherwise made oral submissions to the court.
Relevant law
Since Plaintiff S157 when considering the issue of jurisdictional error the Court is able to rely upon the broader version of jurisdictional error identified in the High Court decisions of Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. In Yusuf McHugh, Gummow and Hayne JJ at paragraph 82 of their judgment cited with approval an extract from Craig v South Australia and stated the following:-
“82.It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)
"falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”
It is useful to note the following extract from the Full Court of the Federal Court in SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65, per Carr J (with whom Cooper and Finkelstein JJ agreed) as follows:-
“…There is no mention in the above passage of the first sur place claim. Nor is that claim mentioned anywhere else in the Tribunal's reasoning. My assessment is that the Tribunal failed to consider the discrete, first sur place claim. This, in my view, was not (as the respondent submitted) simply a failure to refer to evidence in support of such a claim, but a complete failure to consider the claim at all. In my view, the Tribunal thereby fell into jurisdictional error of the type referred to in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. See also SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [14] and Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [79].”
I note a further recent decision of Hill J in NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003). In that case the following paragraphs are relevant: -
“31 The question not decided in Plaintiff S157/2002 (because it was unnecessary to decide, other than in respect of denial of procedural fairness) is what constitutes jurisdictional error in the sense used by the High Court in that case. Clearly failure to afford natural justice will constitute jurisdictional error for that is what the High Court actually decided in Plaintiff S157/2002. However, the question of what constitutes jurisdictional error as a ground for the grant of the constitutional writs of prohibition and mandamus (or the ancillary relief of certiorari) such as to bring about the result that the decision in question is a nullity, has been the subject of discussion in a number of cases.
…
33 Gaudron and Kirby JJ noted that the question whether there was a failure or constructive failure, to exercise jurisdiction required consideration of the nature of the obligation imposed upon the Tribunal (and in relation to a decision of the Minister which was also challenged, by the Minister). Their Honours stated the effect of Plaintiff S157/2002 to be as follows (par 72):
‘... [Section] 474 does not prevent the grant of prohibition, mandamus or certiorari in respect of decisions on the part of officers of the Commonwealth involving jurisdictional error for such decisions are not regarded, in law, as decisions at all and are, thus, not properly described as `a decision ... under [the] Act'. However and as also explained in Plaintiff S157/2002 v The Commonwealth of Australia, the effect of a provision such as s474 of the Act is to necessitate an examination of statutory limitations or requirements to ascertain whether, in the light of s474's restrictions on judicial review, non-observance of those limitations or requirements does or does not result in jurisdictional error.’
…
35 What matters for present purposes is not whether a failure to consider the relevant criteria would be jurisdictional error, but rather whether a failure to consider at all the case or a substantial part of the case advanced by an applicant would constitute jurisdictional error. Clearly the Tribunal has the same powers as the original decision maker within the context that the Tribunal was obliged to review the original decision and acting in the shoes of the decision maker to do again what the decision maker was required to do. The powers thus conferred upon the Tribunal likewise involve the consideration of the application against the criteria which the Act and the Regulations prescribed. It is, I think, quite clear that in the view of Gaudron and Kirby JJ, at least, the failure of the Tribunal to give consideration to the argument or case put forward by an applicant would constitute jurisdictional error and result in a decision which would not be a decision made under the Act and accordingly not be protected by s 474.”
The Full Court of the Federal Court in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129 at paragraphs 27 and 28 relevantly states the following:-
“27 The statement that a particular error is a `jurisdictional error' is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void; Plaintiff S157 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker's lawful authority or it is not. If it falls within the decision maker's lawful authority then the error is made `within jurisdiction'. If it does not fall within the decision maker's lawful authority then the error is a `jurisdictional error' and as such it cannot be a valid action or decision.
28 In relation to statutory jurisdiction, such as that of the Tribunal, a conclusion as to the full extent of the jurisdiction granted, that is whether the decision is or is not authorised, can properly be reached only by construction of the whole of the relevant statute, in this case the Migration Act. When the statute contains a privative clause there is an inevitable tension between the privative clause and those parts of the statute that confer jurisdiction. As Gleeson CJ commented in Plaintiff S157 at [17]:
`The essential problem is the inconsistency between a provision in a statute, or an instrument, conferring a limited power or authority, and a provision which appears to mean that excess of power or authority may not be prohibited.'
Resolving that tension involves the process of reconciliation referred to by the High Court in Plaintiff S157.”
The Grounds of Appeal
Ground (a): The tribunal unreasonably limited the time allowed to the applicant to provide documentary evidence
It was submitted by the applicant that it was not until the hearing that the applicant was informed of what was acceptable corroborative evidence of his claims that he was an Iraqi national. It was submitted he then had from 25 July 2001 to 9 September 2001 to obtain and produce to the RRT documentation from his mother in a remote area in Iran. It was submitted the RRT denied the applicant a proper opportunity to produce documentation on the basis of an irrelevant matter, namely, its assessment of his original solicitor's thoroughness generally, and failed to consider a relevant matter, namely, that the facsimile that the applicant had provided to the solicitor was unacceptable to the RRT and thus the two months in which the applicant supposedly had counsel from the solicitor was "illusory".
It was submitted that this failure to provide time to produce documentary evidence constitutes a denial of procedural fairness and accordingly jurisdictional error as a result.
The respondent submitted that there is no breach of procedural fairness in relation to the time allowed by the RRT for the applicant to provide additional documentary evidence. It was submitted the applicant was aware from the date of the delegate's decision on 27 June 2001 that his nationality was a major issue given the applicant had found the applicant was born in Iran and was a citizen of Iran. At the further RRT hearing on 24 July 2001 the applicant referred to his original travel card and to his mother's green card and that it would take 20 to 25 days to obtain the cards from Iran. The applicant stated, according to the respondent's submissions, that he could not produce his green card as he had given it in.
In relation to the applicant mother's green card, the RRT stated that as he had claimed that a facsimile of that card had been sent to his solicitor, his solicitor could send it to the RRT. It was further noted by the respondent that in relation to the travel card the RRT said it would grant a further 20 days for the applicant to obtain the card. The applicant's then solicitor agreed that that was a reasonable time. An extension of time was subsequently sought to provide written submissions and that extension was granted by the RRT to 20 August 2001. The RRT did not make its decision until 10 September 2001 but no further evidence was received by the tribunal and nor was any further time sought to provide further evidence or material.
It was submitted that having regard to the chronology of events there was no breach of procedural fairness by the RRT in not allowing the applicant further time to provide evidence and material to the RRT. There had been 48 days from the further tribunal hearing on 24 July 2001 until delivery of the decision on 10 September 2001 and that this in fact was more than the time sought by the applicant or his solicitor and no further request was made for time to provide the further material evidence.
In my view the respondent's submissions are correct. I cannot see any jurisdictional error arising from what might be claimed as procedural unfairness in relation to the issue of allowing the applicant further time to provide the material. It was clearly open to the advisers of the applicant to seek and obtain further time prior to the delivery of the RRT decision. In any event, the RRT provided the time requested by the then applicant's advisers and otherwise complied with the requirements of procedural fairness.
Ground (b): The tribunal made a critical and fundamentally incorrect finding of fact
The applicant submitted that the RRT made a critical and fundamental finding that the applicant was an Iranian national which was, according to the applicant's submission, an erroneous finding that affected the proper exercise of its statutory power. It was noted throughout the course of submissions that this was a crucial issue and clearly there is no dispute about the fact that it could properly be described as a threshold issue in this application. Reliance was placed on the decisions of Craig and Yusuf to which reference has been made earlier in this judgment. It was submitted that an error of the kind in this case may constitute jurisdictional error and the limits of jurisdiction is a line between matters of fact and law bearing on the terms of the legislative provisions and the nature of the decision.
In the present case it was submitted there was not a real exercise of the jurisdiction conferred on the RRT. It had not properly formed its view because of its mistaken conclusion about the applicant's nationality meant that when the RRT formed its opinion about the applicant's status it failed to give any consideration at all to the applicant's claims he had a well-founded fear of persecution because:
(a) he was an Iraqi national deported from Iraq and living as a green card holder in Iran at the pleasure of the Iranian government, a member of a recognised social group;
(b) he was a deported Iraqi national living in Iran and on departure from Iran had signed a document denying any right to return to Iran;
(c) he faced return to Iraq and as a result had a well-founded fear of persecution in Iraq for imputed political opinion and/or as a member of a recognised social group of Iraqis with Iranian ancestors deported from Iraq.
During the course of submissions detailed reference was made to the material in the appeal book and criticism made of the facts found by the RRT.
The respondent submitted that this particular essentially serves a wrong finding of fact which would not give rise to an error of law amounting to jurisdictional error. Reference was made to the often-cited decision of Waterford v Commonwealth of Australia (1987) 163 CLR 54 per Brennan J at page 77 where his Honour states:
“There is no error of law by simply making a wrong finding of fact.”
Reliance was placed upon the decision of the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 where Mason CJ referred to the statement of Brennan J in Waterford and to a further statement of Menzies J in REGV District Court; Ex parte White (1996) 116 CLR 644 at 654 to the effect that even if a conclusion of fact was demonstrably unsound, that would not amount to an error of law on the face of the record, nor would some faulty (illogical) inference of fact disclose an error of law.
In the present case it was noted that the RRT was faced with different claims made by the applicant as to his country of nationality. When it considered those conflicting claims and weighed the evidence and material in respect of it in arriving at a conclusion that the applicant is a citizen of Iran, as he initially claimed, the RRT was not determining a "jurisdictional" fact and, it was submitted, made no error of law, even if its conclusion was wrong.
In my view, the RRT has considered the material available to it in a manner which was open to it at the time. Even if it has reached a wrong finding of fact for the reasons advanced for and on behalf of the respondent judicial intervention is not available as I am satisfied that a wrong finding of fact would not of itself provide a proper basis upon which it could be concluded that there has been jurisdictional error.
Where the RRT is confronted with conflicting information from the applicant himself and endeavours to analyse the factual material in reaching its decision it is not for this court on judicial review to then analyse the fact-finding process in minute detail in order to determine that the ultimate conclusion was in error. I otherwise accept and apply the decision of the High Court in Waterford to which reference has been made and the other decisions upon which the respondent relies. In my view, the ground relied upon should therefore fail as it does no more than assert an error of fact which on the relevant authorities would not be sufficient to constitute jurisdictional error.
Remaining Grounds (c), (d) and (e)
The remaining grounds (c), (d) and (e) were not agitated in any detail. In any event, I am satisfied that on a proper analysis of the RRT's decision it did in fact consider and make in the relevant findings as to the claims by the applicant of having a well-founded fear of persecution in Iraq because he was an Iraqi national deported from Iraq and living as a green card holder in Iran. I further accept submissions from the respondent that in relation to ground (d) the RRT considered the applicant's claims that he was a deported Iraqi national living in Iran and on departure from Iran had signed a document denying any right to return to Iran. Once the RRT found the applicant was a national of Iran I accept that it was not then obliged to make findings of claims based on the applicant's claimed Iraqi nationality. Likewise, the finding cannot be challenged in relation to the alleged failure to consider and make findings as to whether the applicant faced return to Iraq and as a result had a well-founded fear of persecution in Iraq for imputed political opinion given that the RRT was not obliged to make findings based on the applicant's subsequent claims based upon a claimed Iraqi nationality (see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576, and Abebe v Commonwealth of Australia (1999) 197 CLR 510 per Gleeson CJ and McHugh J at 545 [84]-[86]).
Conclusion
For the reasons given it follows the application should be dismissed with costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 28 June 2004
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