WABB v MIMIA - [2002] FMCA 94

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WABB v MIMIA

[2002] FMCA 94

MIGRATION – Appeal from a decision of the Refugee Review Tribunal – jurisdictional error – whether Tribunal made jurisdictional error in appearing to take into account material it claimed to have disregarded and ignoring relevant material - jurisdiction of the Federal Magistrates Court under s.39B of the Judiciary Act 1903 (Cth) where the Tribunal’s decision is a privative clause decision under s.474(1) of the Migration Act 1958 (Cth).

Migration Act 1958 (Cth) ss. 36(2), 65(1), 474, 477, 483A
Judiciary Act 1903 (Cth) s.39B

R v Hickman; ex-parte Fox and Clinton (1945) 70 CLR 598
SAAD v Minister for Immigration and Multicultural Affairs [2002] FCA 206
SBAE v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 479
VAAC v MIMA [2002] FCA 573
Turcan v Minister for Immigration and Multicultural Affairs [2002] FCA 397
Craig v The State of South Australia (1995) 184 CLR 163
Kwan v Minister for Immigration and Multicultural Affairs [2002] FCA 498
Boakye-Danquah v Minister for Immigration and Multicultural Affairs [2002] FCA 438
NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263
Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 477
NABC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 539
Ratumaiwai v Minister for Immigration and Multicultural Affairs [2002] FCA 311

Applicant:

WABB

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

WZ 64 of 2002

Delivered on:

24 May 2002

Delivered at:

Sydney

Hearing Date:

13 May 2002

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Mr A Jenshel

Solicitors for the Respondent:

Mr T Carey of Australian Government Solicitor

ORDERS

The application be dismissed.
The applicant pay the respondent’s costs pursuant to Part 21.10 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

WZ 64 of 2002

WABB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

In this matter the applicant is a forty-four year old Iranian who seeks a review of the decision of the Refugee Review Tribunal, constituted by John Lynch, made on 12 October 2001 affirming a decision of the Delegate not to grant a protection visa under Class XA Sub Class 785 or 866. The applicant entered Australia as an unauthorised boat arrival and was not immigration cleared. He is therefore unable to meet the requirements of the grant of a permanent Sub Class 866 (protection visa). He was assessed in accordance with the criteria set out in the Migration Regulations for the grant of a visa of Sub Class 785 (temporary protection).
The applicant filed his application for an order for review originally on the form provided for a notice of appeal on 17 October 2001. The form used was replaced by the appropriate application form on 18 October 2001. The application states that the applicant is aggrieved by the Tribunal’s decision because:
“The decision does not consider the jeopardy of my situation if I return to Iran.”
There are no grounds for the application completed.
The matter came before the Registrar for directions on 9 November 2001. The Registrar made orders, including the following:
1.The applicant file and serve on or before 7 December 2001:
(a)An amended application giving particulars of any grounds founding relief under the Judiciary Act 1903 or a statement setting out why he considers the decision of the Tribunal should be overturned; and
(b)Any affidavits upon which he intends to rely at the hearing of this matter.
No such documents were filed by the date ordered or by the date of the hearing. The reason for this may have been that although Lee J determined on 22 November 2001 pursuant to Order 80 Sub-Rule 4(1) of the Federal Court Rules that it was in the interests of the administration of justice that the applicant be referred for legal assistance, no representation could be found for him in the State of Western Australia.
On 12 April 2002 Lee J referred this matter to the Federal Magistrates Court.
The applicant is a married man and one of five brothers and sisters. A younger brother and sister live in Holland and Sweden respectively, the brother having obtained asylum in that country. From about 1987 until he left Iran the applicant was working in the fire department in Ahvaz. He had a position as head of the anti riot guards in the fire brigade anti riot forces. His duties in this force included crowd control using high pressure water.
On 5 July 2000 demonstrations were planned for Abadan. The applicant alleged that he was provided with secret orders from the general manager of the fire service requiring him to go to Abadan which was about two hours away from Ahvaz to take part in crowd control activities at the expected demonstrations. The applicant alleges that he did not wish to do this. He believed that the demonstrators were venting genuine feelings concerning the physical conditions in Abadan at the time, with which he sympathised. He thought that the demonstrators were going to be categorised as persons who were against the regime when in fact they were wishing to bring to the attention of the regime the poor conditions in which they lived.
The applicant says that in the afternoon of 5 July he applied for leave which he received. By doing this he avoided having to go to Abadan. He says that because he did not go to Abadan his unit went late and this caused difficulties for those wishing to quell the demonstration. He says that when he returned he was brought before a tribunal which included a special representative of the Supreme Leader and was accused of acting detrimentally to the regime by shirking his responsibilities. He said that he had expected a rebuke for claiming leave at this time but what in fact happened was that he was dismissed from his job and lost his house and some land which had been granted to him by the authorities. He was so enraged he threw a picture of the Supreme Leader at the Leader’s representative and stormed out of the tribunal. He speedily determined that he must leave the country in order to protect himself and utilised the services of an intermediary who had assisted his brother to leave. He had his own passport and he used this to get through immigration control at the airport, although he had been told by the intermediary that a significant amount of the money which he had paid was used to bribe a particular guard at the airport to whom he was directed to present his passport.
In order to satisfy the tribunal that he is entitled to a protection visa the applicant must satisfy the decision maker that the prescribed criteria for the visa have been satisfied (s.65(1) of the Migration Act 1958) (“the Act”). The relevant criteria in this case is set out in s.36(2) of the Act. This provides that a criteria for a protection visa is that the applicant for a visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugee’s Convention as amended by the Refugee’s Protocol. Article 1A(2) of the Convention defines a refugee as any person who:
“Owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a political social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
The applicant claims a well founded fear of persecution because of the political opinions which caused him to decline to go to Abadan and his outburst at the tribunal. He felt that he would be in considerable danger if he was returned to Iran.
The RRT dismissed the applicant’s claim saying at page 33 of its reasons:
“The Tribunal has closely examined all the applicant’s claims, the evidence presented in support of his claims, the written submissions made by his adviser and the “in country” information available and has given full consideration to that evidence and material, having provided the applicant with considerable opportunity to establish his claims for protection. However, the Tribunal is not satisfied on all the evidence that the applicant is at risk of persecution by the Iranian authorities because of an “imputed political opinion or activities”. The Tribunal has come to this conclusion for the reasons discussed below including, in particular, that the applicant is not credible in respect of key aspects of his claim for protection. The Tribunal is led to conclude that he is not in genuine fear of persecution nor that there is a real chance that he will suffer persecution on his return to Iran.”
The jurisdiction of the Federal Magistrates Court in these matters is imposed by s.483(A) of the Migration Act. The jurisdiction which the court exercises is subject to 474 of the Act which is found in Part 8 dealing with judicial review. Section 474 is the section which places into the Act the privative clause in the following form:
474Decisions under Act are final
(i)A privative clause decision;
(a)is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”
This clause was interpreted by the High Court in R v Hickman; ex-parte Fox and Clinton (1945) 70 CLR 598 and the implications of such a clause to decisions under the Migration Act have been the subject of several decisions in the Federal Court. There have also been decisions in this court.
Mansfield J in SAAD v MIMA [2002] FCA 206 and SBAE v MIMIA [2002] FCA 479 dealt with two cases in which the application for review before the court did not identify any grounds upon which the application was brought. He considered those cases on the basis that he would look first to see whether or not there was any matters which would give rise to relief under s.39B of the Judiciary Act 1903 (Cth). He said in SBAE at [17]:
“The assessment of the merits of the applicant’s claims is fundamentally the function of the Tribunal. The court is not empowered to revisit findings made by the Tribunal, and to substitute its view of appropriate findings for those made by the Tribunal. That is not to indicate that, in this instance I have found different views about matters of fact upon which the Tribunal has made findings. I have not done so. That is not the court’s function. It is to indicate that, without error of the kind which would enliven a court’s powers under s.39B of the Judiciary Act, the sort of matters to which the applicant has referred as noted above do not entitle the court simply to revisit the determination of the Tribunal or set it aside.”
His Honour would only consider the effect of s.474 of the Migration Act if he found there was an error on the part of the Tribunal which would enliven the entitlement to an order under s.39B. When he was unable to find such an issue in SAAD his Honour said at [23]:
“Consequently, in my view, it is not necessary to address the application of s.474 in the particular circumstances.”
This approach is not universal although it has received the support of Marshall J in VAAC v MIMA [2002] FCA 573. In Turcan v MIMA [2002] FCA 397 Heerey J said at [46]:
“In my view, the correct approach is to first consider whether s.474 applies. If it does, the court need not. Indeed it should not, go any further. The court should not assess the case as if 474 did not exist and then only move to consider that section if satisfied that otherwise grounds are made out. Section 474 in its terms goes to the court’s jurisdiction and is to be applied at the threshold.”
This dichotomy will doubtless be resolved shortly by a Full Bench of the Federal Court but in the meantime I would propose to follow the approach adopted by Mansfield J because in his cases, like the present one before me, the applicant was not represented and did not articulate his grounds for the appeal other than by re-asserting the matters which he brought to the attention of the Tribunal and the fears which he expressed about his safety if he were returned to Iran.
In SBAE Mansfield J noted at [22]:
“The applicant appeared in person at the hearing, but his submissions did not extend beyond asserting factual error on the part of the Tribunal. I have also independently reviewed the Tribunal’s reasons, having regard to the applicant’s circumstances, to discern whether they disclose error on its part such as would warrant the court’s intervention under s.39B of the Judiciary Act. In my judgment no such error on the part of the Tribunal is apparent.”
I have adopted the approach taken by Mansfield J in relation to this applicant. I explained to the applicant that the court could not review the decision of the Tribunal so as to substitute its views as to the merits for those of the Tribunal. I explained that the court could only (and now in very limited circumstances) make a decision as to whether or not the Tribunal had come to its conclusions in accordance with law.
The applicant sought to refer me to a number of areas in which he believed that the Tribunal had acted unjustly towards him. Most prominently were the extracts in the Tribunal’s decision which dealt with some submissions that had been made on his behalf on 14 June 2001 by the migration agent who was assisting him. The references to the submissions start at page 4 of the decision:
“Written Submissions dated 14 June 2001 from the applicant’s advisor were also received by the Tribunal on 17 June 2001. However, on 18 June 2001 the applicant sent a facsimile letter directly to the Tribunal requesting that the Tribunal not make a decision on the basis of his advisor’s submissions as they were “full of mistakes which are made by my advisor… and the applicant’s advisor provided submissions dated 20 June 2001 under cover of a letter dated 21 June 2001 apologising for the confusion and asking for the earlier submission “sent erroneously be withdrawn from the Tribunal’s further consideration, as it has no relevance to this applicant’s case.”
On page 37 of the reasons for decision the Tribunal deals with these submissions in three further paragraphs. In the first of those paragraphs it sets out claims made by the applicant which form the basis for claiming a fear of persecution. In the third of those paragraphs the Tribunal says:
“While the Tribunal has disregarded these submissions for the purposes of assessing the applicant’s claim as presented at the hearing before the Tribunal and as requested by both the applicant and his advisor, the Tribunal notes with serious concern that such a submission, containing substantially different claims for refugee recognition to those previously presented to the Tribunal, could have been so comprehensively prepared argued and forwarded for the Tribunal’s consideration before being withdrawn.
As indicated above, the Tribunal has not, in assessing the applicant’s claims presented at this hearing, paid regard to the contents of the submissions dated 14 June 2001. In view of the conclusion the Tribunal has reached in respect of the applicant’s credibility and its findings on his claims which are discussed above, the Tribunal does not consider it would be productive to make any enquiry into the set of claims set out in the submissions of 14 June 2001, which are not, in any event, relied on by the applicant.”
The applicant appeared to me to be attempting to articulate a complaint that the protestations of the Tribunal to have ignored the representations of 14 June 2001 were hollow and that they were taken into account in considering his credibility. He did not say, but it might follow from his argument, that if the Tribunal had investigated why those representations were made, that it would have found an innocent explanation. One explanation which comes readily to mind is that the adviser was acting for more than one person within the detention centre at the time and had allowed representations placed on his word processor in respect of one applicant to fall into the representations made for this particular applicant. The applicant might also have argued, in such an investigation, that the very fact that within one day of the incorrect representations being made he notified the Tribunal, redounded to his credit rather than to his lack of credibility.
There are other inconsistencies in the decision which, had the applicant been represented or even if he had any command of English and an understanding of its nuances would have raised. For example, on page 35 of the decision the Tribunal says:
“The applicant’s several explanations, including illness, his mistakes and mistakes on the part of an interpreter in calendar conversion are not accepted by the Tribunal and they place substantial doubt in the Tribunal’s mind that the riots in Abadan were a relevant issue for the applicant at all.”
However, on page 36 the Tribunal says:
“The Tribunal accepts that the applicant has been sick and has probably had a stressful and depressed condition, that he had a difficult journey to Australia from Indonesia, and had an initial lack of trust in Australian officials.”
There was further discussion about the mistake made as to a date. Initially it was suggested that the applicant took leave on 7 July but later this was corrected to the 5^th. Complaining about the unsatisfactoriness of the applicant’s evidence on page 35 of the decision the Tribunal says:
“Examples can be found in his evidence (at pages 14 to 16 above) regarding: whether the riots were anticipated or were already in progress on 5 July 2000, when he received the letter of instructions from his general manager, when he lodged his leave application and where he was on 5 July 2000 the date on which… the serious rioting in Abadan commenced.”
My reading of the decision leaves me with the strong impression that the change in the dates given for the events surrounding the riots in Abadan contributed to the Tribunal’s view of the applicant’s lack of credibility. Yet on 29 May 2001 Mr Naseer Naseer wrote to the Tribunal [p37 Court Book] confirming that the mistranslation of the date was his fault.
If the applicant had had a better command of English or the assistance of legal representation he might have raised the apparent internal inconsistency in the decision which at page 34 finds him to be “a gentleman” and the other findings, particularly those expressed at page 36:
“In view of the Tribunal’s adverse findings above on the applicant’s credibility and its rejection of the key elements of his claims ….”
In support of its definition of a gentleman as “a man in whom gentle birth is accompanied by appropriate qualities and behaviour” the second edition of the Oxford English Dictionary quotes Sir Izaac Walton in the Complete Angler as saying:
“I would rather prove my self to be a Gentleman, by being learned and humble, valiant and inoffensive, virtuous, and communicable, than by a fond ostentation of riches.”
The dictionary could have provided many more examples which would indicate that honesty and openness are qualities essential to the definition and lack of honesty, a barrier.
I raise these matters because they appear to me to be concerns that are self-evident from the decision itself. Having done so there are now two further questions to be answered. The first is whether they, individually or collectively established jurisdictional error sufficient to satisfy review under s.39B of the Judiciary Act? In a much quoted passage Brennan, Deane, Toohey and McHugh JJ said in Craig v The State of South Australia (1995) 184 CLR 163 at 179:
“If an administrative 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.”

In Ratumaiwai v MIMA [2002] FCA 311 Hill J said:
“Where a Tribunal fails to address a matter, the decision on which could affect the outcome of the Tribunal’s review, the failure of the Tribunal to do so will constitute a jurisdictional error because the Tribunal will have failed to exercise its jurisdiction. Such a failure is often referred to as a constructive failure to exercise jurisdiction. However, it will normally only be the case that the Tribunal has made a jurisdictional error by failing to address an issue where the matter is raised by the evidence and the applicant requests the Tribunal to address the matter. It is not for the Tribunal to make out a case for an applicant, nor is it, in my opinion, for the Tribunal to have to dredge through the totality of material which may be before it to discover whether somewhere among that material there is an argument that might be relevant to an applicant’s case. It will be different where the facts before the Tribunal clearly raise an issue, a decision on which may affect the outcome of a review. In such a case the Tribunal will usually have an obligation to address that issue, even if the applicant does not request directly that the Tribunal do so: Paramanantham v MIMA (1998) 94 FCR 28 at 63; Ahvazi v MIMA [2002] FCA 279 at par 16-18.”
In this case I am of the view that the Tribunal was influenced in its views as to the credibility of the applicant as a result of it taking into account irrelevant material and ignoring relevant matters. I use the word ‘ignoring’ although there is no doubt that the material was before the Tribunal. The letter from the interpreter concerning the mistake as to the date and the letter from the applicant concerning the irrelevant material supplied by his adviser are both contained in the court book. The Tribunal chose to disregard them without providing any reason for so doing. The Tribunal’s comments upon the adviser’s submissions leave one with the clear impression that whilst the claims were not taken into account, the existence of them was. This seems to me to be a jurisdictional error of the type anticipated by Craig and discussed by Hill J in the passage recited above and Finkelstein J in Kwan v MIMA [2002] FCA 498.
Having found procedural error the question is whether the new s.474 prevents me from providing a remedy. Hill J in Ratumaiwai said:
“On the other hand, the privative clause is not to be interpreted so that a real failure to exercise jurisdiction nevertheless permits the decision to be validated. The clearest example of such a real failure to exercise jurisdiction is the case where a Tribunal simply fails to address the issue it is required to address, or, while purporting to do so, takes into account some quite irrelevant matter.”
However he recanted that view in Wang vMIMIA [2002] FCA 477.
There is a present authority both ways. Finkelstein J in Kwan supports the views of Wilcox J in Boakye-Danquah v MIMA [2002] FCA 438. Against these cases are a range of decisions such as that of Gyles J in NAAX v MIMA [2002] FCA 263 which has been approved in several subsequent cases including Turcan v MIMA [2002] FCA 397, Wang v MIMIA [2002] FCA 477 and NABC v MIMIA [2002] FCA 539. I am of the view that until the matter is finally resolved by a Full Bench of the Federal Court or by the High Court these authorities are to be preferred.
The effect is to remove from this Court the power to intervene where a decision is made within the Hickman principles.
In these circumstances I must therefore dismiss the application and order that the applicant pay the respondent’s costs pursuant to the Federal Magistrates Court Rules Part 21.10. I certify it was reasonable for the respondent to have employed an advocate pursuant to Part 21.15.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: