WAMB v Minister for Immigration
[2006] FMCA 501
•28 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WAMB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 501 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal ignored or failed to give adequate weight to relevant evidence – whether Tribunal misunderstood evidence presented to it on behalf of the applicant – whether Tribunal failed to properly consider applicant’s claim – no reviewable error found. |
| Migration Act 1958 |
| Re: MIMA: Ex parte Cohen (2001) HCA 10 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 MIMIA v Eshetu (1999) 197 CLR 611 Waterford v The Commonwealth (1987) 163 CLR 54 Australian Heritage Commission v Mount Isa Mines (1997) 187 CLR 297 |
| Applicant: | WAMB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
And
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 232 of 2005 |
| Judgment of: | Walters FM |
| Hearing date: | 4 April 2006 |
| Date of Last Submission: | 4 April 2006 |
| Delivered at: | Melbourne via telephone link to Perth |
| Delivered on: | 28 April 2006 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondents: | Mr Hooker |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed at $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 232 of 2005
| WAMB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 September 2005. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa for the applicant.
I accept the following statement of background facts and information contained in paragraphs 1- 4 (inclusive) of the written submissions prepared by Mr Hooker on behalf of the first respondent:
The applicant is a citizen of Egypt who arrived in Australia on 18 September 2004 as the holder of a multiple travel student visa permitting him to stay in Australia until 21 February 2005. On 9 February 2005, the applicant lodged an application for a protection visa, claiming to fear persecution on the grounds of religion because he was a Coptic Orthodox Christian…The applicant claimed that he had suffered discrimination at university, in his employment, had been threatened whilst performing national service, and that, more generally, he feared that he may be harmed by Muslim extremists…
On 23 February 2005, a delegate of the first respondent refused to grant a protection visa to the applicant…On 2 March 2005, the applicant applied to the second respondent for review of that decision…
A hearing was undertaken by the second respondent on 5 September 2005, at which time the applicant gave oral evidence in support of his application. On 7 September 2005, the second respondent affirmed the delegate’s decision not to grant a protection visa, with formal reasons for decision being handed down on 29 September 2005…
The applicant lodged an application for judicial review of the second respondent’s decision with this court on 28 October 2005.
The Tribunal’s decision
After summarising the background to the application before it and discussing relevant legal issues, the Tribunal dealt with the applicant’s claims, and the evidence before it. It also recorded that the applicant gave oral evidence before it on 5 September 2005 and made reference to a written Submission prepared by the applicant and provided to the Tribunal prior to the hearing (“the Submission”). The Tribunal quotes extensively from the Submission on pages 160 to 162 of the court book. The Submission itself appears at pages 126 to 128 of the court book.
The Tribunal also recorded[1] that various articles were attached to the Submission, that the articles were “now on file” and that they were “…such sources as Christian News Service, copts.com and BBC News Online”.
[1] CB161
The Tribunal referred to the applicant’s oral evidence before it at pages 163 to 164 of the court book. In the course of doing so, the Tribunal wrote[2]:
The applicant said that he had downloaded from the internet secret recordings of telephone calls in Arabic made by criminals who are overheard plotting such things as the kidnapping of a 13 year old Coptic girl.
[2] CB 163.
The Tribunal then quoted at length from 3 articles or reports, which it described as “independent evidence”. They are as follows:
a)the 2004 US State Department “International Religious Freedom Report For Egypt”;
b)an article in The Economist dated 29 December 2004; and
c)the US State Department’s Country Reports on Human Rights Practices – 2004 (released by the Bureau of Democracy, Human Rights and Labour on February 28 2005).
The “substance” of the Tribunal’s decision[3] is summarised in paragraphs 7 to 12 of the first respondent’s Outline of Submissions. Once again, I accept and adopt that summary, which is as follows:
[3] which appears at CB 170-2.
7 The Tribunal was prepared to accept that the applicant may have suffered discrimination, as he had claimed, at university and in relation to his employment opportunities. The Tribunal, however, found that any discrimination he suffered in education or in employment was not to a degree such that it would constitute serious harm, given that the applicant was able to graduate and also find employment. The Tribunal did not accept that there was a real chance that he would face unemployment for reasons of his religion.
8. The Tribunal also accepted that the applicant was attacked by a Muslim while in the army but found that, as the applicant had completed his military service, there was no real chance that he could suffer the threat of such serious harm were he to return to Egypt.
9. The Tribunal accepted the independent evidence from the US State Department that:
9.1Egypt was not, as claimed by the applicant, in the grip of widespread anti-Copt violence, particularly directed at churches;
9.2the Egyptian authorities were engaged in the suppression of Muslim radicalism and, were such violence to occur, would promptly offer Copts the protection they might require; and
9.3the Egyptian government was taking active steps to integrate the 7 million Copts into national life, and the nation was not gripped by a deteriorating situation as claimed by the applicant.
10.The Tribunal found the applicant’s claims of general harassment of Copts in Egypt to be so fantastic as to be unbelievable and unsupported by any credible media or other reports. Noting that the independent evidence showed that there had been continuing vigilance by the Egyptian authorities against violent Islamic militants, the Tribunal found that the State provided adequate protection to Coptic Christians. In light of this, the Tribunal found that there was no real chance that the applicant might be harmed by the actions of Islamic militants aimed at Christians such as the applicant.
11.The Tribunal acknowledged that there was evidence of some continuing low level discrimination and occasional societal prejudice, but found that any such harm an Egyptian Copt, such as the applicant, might suffer in the foreseeable future, was not so serious as to constitute persecution.
12.The Tribunal was not satisfied that there was a real chance that the applicant might face persecution in the foreseeable future for his religion or for any other Convention reason, and concluded that the applicant was not a person to whom Australia has protection obligations under the Convention and therefore did not satisfy the criterion for a protection visa….
Grounds for Review
The applicant relied upon his amended application filed 13 December 2005. The “grounds” contained in the amended application are in the form of a submission (and, indeed, were replicated in the applicant’s written Submission filed on 23 March 2006 for the purpose of the hearing before this court on 4 April 2006).
In his amended application, the applicant asserted that the Tribunal’s decision “….is unfair and faulty, beginning with the mistreatment in the review proceeding and ending with the ignorance of evidences and facts”. The applicant then referred to a number of issues or concerns arising from the Tribunal’s decision or the manner in which it conducted the hearing on 5 September 2005.
During the course of the hearing before this court, the applicant (who represented himself) relied upon 5 principal grounds for review. I would add that the applicant is clearly intelligent, and has a good command of English.
The “grounds” relied upon by the applicant at the hearing before this court were as follows:
a)The Tribunal’s finding that the applicant had completed his military service[4] was wrong, and there remains a “…real chance that the applicant could suffer the threat of….serious harm were he to return to Egypt”.
b)The Tribunal ignored or did not give sufficient weight to information contained on a CD provided to it by the applicant.
c)The Tribunal ignored or did not give sufficient weight to evidence relating an incident involving the applicant personally which incident occurred in February 2002.
d)The Tribunal ignored or did not give sufficient weight to the applicant’s evidence to the effect that, as a result of discrimination against him, his chances of finding employment (and thereby earning a livelihood) are “very difficult and impossible”.
e)The Tribunal ignored or did not give sufficient weight to the material contained in (or forwarded with) the Submission.[5]
[4] CB 171.
[5] CB 126
Military Service Ground
The applicant’s application for a protection (class XA) visa comprises pages 1 to 31 of the court book. In an annexure to the application[6], the applicant described an incident which occurred “during (his) service in the air forces”. He said that he was harassed by a Muslim solider who “attempted to kill (him) using a knife from his weapon”. According to the applicant, another Muslim solider prevented the first solider from harming the applicant. The applicant wrote that he could not complain about the incident “…because nobody will listen because most of the officers and the high-rank officers are Muslims”.
[6] CB 27
The delegate’s finding in relation to this incident appears at page 99 of the court book, and is as follows:
The applicant has complained that he was harassed by a Muslim solider during his military service and that solider tried to kill the applicant with his knife – but another Muslim solider prevented him from so doing. The applicant claims that he couldn’t complain because nobody would listen because most of the officers and the high-rank officers are Muslims. The applicant fails to explain why he couldn’t complain to one of the non-Muslim officers. I find it implausible that the applicant could not have reported this incident to someone in authority nor that attempted murder would not be treated seriously by the military authorities. In any case, the applicant has completed his term of compulsory military service so he will not be subjected to this or any other form of treatment in the military again if he returned to Egypt.
The applicant did not challenge the delegate’s findings (as set out above) in the Submission.[7]
[7] CB 126-8.
Although the relevant incident was raised during the applicant’s oral evidence before the Tribunal on 5 September 2005[8], no further details were provided.
[8] See pages 4 and 5 of the transcript.
The Tribunal’s finding in the matter appears on page 171 of the court book, and is as follows:
The Tribunal accepts that (the applicant) was attacked by a Muslim while in the army, but notes that he was saved by another Muslim solider. Given the applicant has completed his military service, the Tribunal finds that there was no real chance that the applicant could suffer the threat of such serious harm were he to return to Egypt.
In his amended application filed 13 December 2005, the applicant asserted that he has not completed his military service. He alleged that he will not complete his military service until March 2013. Further, he stated that he has received a call-up notice from the Egyptian armed forces (dated 13 June 2005), which notice requires him to return to his military unit for an unidentified period.
During the course of the hearing before this court on 4 April 2006, the applicant explained that he has, in fact, completed his compulsory military service, but that he is subject to call-up for reserve duty until March 2013.
Mr Hooker (for the first respondent) argued that the fresh information provided by the applicant in support of his application to this court “...cannot be relied upon to assert jurisdictional error on the part of (the Tribunal) in arriving at a finding that there had been a completion of the applicant’s military service”, and that “…on the highest conceivable case for the applicant, any error of (the Tribunal)…was an error of fact, not a jurisdictional error.”
The fact that the applicant is subject to call-up for reserve duty in the Egyptian armed forces from time to time or at any time until March 2013 (notwithstanding that he has completed his compulsory military service) was clearly known to the applicant at all relevant times. It was a matter that he could have raised before the delegate and before the Tribunal, but he did not do so. The additional documents referred to by the applicant (comprising his “military certificate” and the call-up letter) do not comprise “fresh evidence” in any real sense. In any event, the “military certificate” seems to have been available to the applicant from well before he applied for a protection (class XA) visa. As well, the applicant does not appear to have stated the date upon which he received the call-up notice – although it is clearly likely to be prior to the hearing before the Tribunal (which took place on 5 September 2005).
Even if the existence of the “military certificate” and the call-up notice could be regarded as “fresh evidence”, Mr Hooker’s submission to the effect that the documents are irrelevant to any ground on which certiorari could be granted – and are therefore inadmissible – is clearly correct (see NASB v MIMIA [2004] FCAFC 24 at [55] and STKB v MIMIA [2004] FCAFC 251 at [30]-[35]).
It follows from above that the first ground replied upon by the applicant cannot succeed.
Information on CD
At the commencement of the hearing before the Tribunal, the applicant said to the member:
I got some recorded phone calls but it’s in Arabic.
The member replied:
Well, we will talk about them. Okay.[9]
[9] See page 2 of the transcript.
The applicant again referred to “recorded phone calls” later in the hearing.[10] He said that one of them was from a Muslim man “...confessing that he is going to help to convert people to Islam by kidnapping 13 year old girls or something”.
[10] See page 8 of the transcript.
On page 13 of the transcript, the applicant said:
…I get in these phone calls which I am going to give you and I address some of (these incidents) of hijacking and kidnapping young girls and boys to force them to convert to Islam and that was during the last 12 months from now”.
The following exchange appears on page 16 of the transcript:
Applicant: ….it’s obtained in Egypt to force everyone to convert to Islam.
Member: Oh.
Applicant:…and that being done by the help of the – of some police officers which I gave some names in these phone calls.
Member: Unless you wish to transcribe the whole of the conversations, I wouldn’t be able to use it and I….will write down what you are saying is one those but I am not prepared to wait for a translation for those. They are not what I am concerned – what I would consider independent evidence. I mean, there is no way of knowing where the phone calls come from and so on. You are saying that one of them – what do you hear?
Applicant: You can go to this website. Most of or all of these phone calls is…recorded on the website (copts.com).
A further exchange occurred between the applicant and the member at pages 22 and 23 of the transcript:
Applicant: Can you check these things. You can check this phone calls. That’s evidence.
Member: No, I won’t be checking Arabic phone calls. I will be looking at the sort of independent information I have been talking about. If there was the levels of attacks on Coptic Christians that you are maintaining, the headlines would be full of it all the time throughout the world.
Applicant: Can you check this organisation? Can you contact the Coptic organisation?
Member: No, I won’t contact them…I will look at the material…
The exchange between the applicant and the member continued as follows:[11]
[11] See pages 23 - 24 of the transcript.
Applicant: So what can I get you in evidence then?
Member: No, I will look at that evidence (being material from Coptic organisations), but I need to have it corroborated.
Applicant: So, how do you want me – do you want me to translate it or what?
Member: No, no.
Applicant: You want me to translate it in a paper>
Member: No, no.
Applicant: And send it to you?
Member: No. I don’t need that at all. I have written down what you have said it says and I am taking that as evidence that you have given me
Applicant: Okay.
Member: Apart from that, I need to look at independent country evidence on Egypt…
The final exchange between the applicant and the member in relation to this subject commences on page 24 of the transcript and is as follows:
Member: Okay. Is there anything else you wish to say to me?
Applicant: No, thanks. Thank you.
Member: Okay. I shall look at your evidence, I shall look at the country evidence that I have. When a decision has been made, then the Tribunal will contact you.
Applicant: Okay.
Member: Okay?
Applicant: So you want me to give you this CD and this record?
Member: No, I don’t. I don’t actually, no.
Applicant: Okay.
Member: I have written down what you have said it contains and I will note that and I will consider it. Okay?
Applicant: Okay.
The applicant argued before this court that the Tribunal had simply ignored the material on the CD. He submitted that the actual material on the CD was less important – in relation to this particular ground for review – than the fact that the Tribunal saw fit not to listen to it (and, perhaps, to have it translated).
The applicant provided the CD to this court with his Submissions on
23 March 2006. It contains – among other things – a number of audio files (in Arabic).
It is clear from the above that the Tribunal told the applicant – on two occasions – that it would not listen to or arrange for the translation of the material on the CD,[12] and that it proposed to take account of the applicant’s description of what is contained on the CD. On both occasions, the applicant’s response was: “Okay.”
[12] See pages 23 to 25 of the transcript.
In its decision, the Tribunal made reference to the fact that he applicant said that he had downloaded from the internet “…secret recordings of telephone calls in Arabic made by criminals who are overheard plotting such things as the kidnapping of a 13 year old Coptic girl”. The Tribunal also recorded that the applicant had stated that “…among Egypt’s extremists are some police officers and some high in government.”[13]
[13] CB 164.
At page 170 of the court book, under the heading “Findings and Reasons”, the Tribunal recorded that it had considered the applicant’s claims and his evidence. At page 171 of the court book, the Tribunal wrote:
The Tribunal finds his claims of general harassment of Copts in Egypt, including his belief in the genuineness of secretly recorded telephone conversations implicating criminals in actions against Copts, including plans for the widespread abduction of Coptic girls in order to convert them, and of the likelihood that he himself might be abducted in order to force him to convert to Islam, to be so fantastic as to be unbelievable. The Tribunal finds that tales such as this constitute “urban myths” which have no basis in reality and which are not supported by any credible media or other reports. The Tribunal is convinced that were such events to be occurring, they would be widely reported in credible sources and that that the Egyptian government would take immediate steps to deal with such crimes.
In my opinion, and having regard to the finding made by the Tribunal and to the applicant’s acceptance of the Tribunal’s expressed intention not to listen to the material on the CD or have it translated, it is clear that this ground for review cannot succeed.
In any event, I accept Mr Hooker’s submissions in relation to this subject:
a)The Tribunal was under no obligation to seek information from sources available to it – although it has power to do so if the additional information is considered relevant to the Tribunal’s performance of its duty to review.[14]
b)Whether or not Section 422B (1) of the Migration Act extends to all procedural aspects of the conduct of reviews by the Tribunal, and even though the Tribunal has the power to obtain relevant information of it is minded to do so, procedural fairness does not require the Tribunal to take upon itself the role of obtaining further information for the purpose of assisting the applicant to make his case.[15]
[14] See MIMIA v VSAFof 2003 [2005] FCAFC 73 at [20] and [21].
[15] See SZEGT v MIMIA [2005] FCA 1514 at [29], cf WAJR v MIMIA [2004] FCA 106 at [57] and my discussion of the effect of Section 422B in WALM v MIMIA [2005] FMCA 929 at [31] –[40].
In a slightly different context, Lee and Moore J.J. said in WAIJ v MIMIA [2004] FCAFC 74[16]:
In carrying out that assessment (i.e. an assessment as to whether the material presented by an applicant indicates that there is a real possibility that if he or she were to be returned to his or her country of nationality, events involving the applicant may occur which would constitute persecution of the applicant), involving as it does a determination of great importance to the applicant, the Tribunal must act “judicially” and according to law. In so acting the Tribunal does not exercise judicial power, but by reason of the importance of its task, the Tribunal must observe the “practical requirements of fairness” appropriate for the exercise of judicial power….
While the expression “acting judicially” is not now often used when referring to administrative decision making, it usefully comprehends concepts relevant to (an issue of denial of procedural fairness)…
Failure of the Tribunal to act “judicially” will necessarily stamp the review procedure as one which did not accord an applicant practical fairness or justice. To act “judicially” and according to law, the Tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily…
The requirement that the review procedure be carried out according to law is an irreducible duty arising out of Section 75(v) of the Constitution…Failure to observe that requirement will mean that the purported decision of the Tribunal has no “jurisdictional” foundation…
[16] At paragraphs 19 – 22.
Their Honours continued:[17]
…It will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance, the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law, and the decision would be affected by jurisdictional error…
[17] At paragraph 27 of WAIJ v MIMIA
And their Honours said further:[18]
It is a denial of a fair process to purport to dismiss documents from consideration where the material therein supports an applicant’s case in substantive respects and no ground for such a course is provided by the documents on their face or by other facts.
[18] At paragraph 53 of WAIJ v MIMIA
At first glance, it might appear that the Tribunal’s reluctance (or perhaps refusal) to listen to or obtain relevant transcripts or translations of the material on the CD provided by the applicant could amount to “a denial of fair process”. An analysis of the transcript, however, reveals that the Tribunal did not ignore or refuse to consider the material on the CD in any relevant sense. It noted what the applicant said that it contained, and explained that it would consider the applicant’s evidence in that regard as substantive evidence in support of his case. It is clear from the extracts from the Tribunal’s reasons to which I have referred that such a course of action was in fact adopted.
In addition, the applicant specifically elected not to refer – in his submissions before this court – to the contents of the CD as supporting his case in any material or tangible respect. His argument (again, as presented to this court) was founded entirely upon the Tribunal’s alleged refusal to take possession of, listen to, translate and transcribe the CD and its contents. As indicated above, the Tribunal cannot be regarded as having ignored the contents of the CD and the applicant had ample opportunity to describe to or summarise for the Tribunal the evidence contained in the various audio and other files on the CD.
I find that the Tribunal did not dismiss the CD from its consideration, and that its refusal to use the CD in the manner urged upon it by the applicant was justified or explained as envisaged in paragraph 53 of the decision in WAIJ v MIMIA .
February 2002 Incident involving the Applicant Personally
Attached to the applicant’s amended application (filed 13 December 2005) was an article headed “Coptic church attacked in southern Egypt”. Written above the article are the words:
News about the accident (sic) that happened to me and has been ignored by both the Department of Immigration and the RRT
The same article appears at page 149 of the court book. It was forwarded to the Tribunal prior to the hearing date and together with the Submission.
The article referred to in the preceding paragraphs refers to an incident that occurred in or about February 2002. According to the article:
a)A Muslim mob attacked Coptic Christians who had gathered to celebrate their first Sunday mass in a newly inaugurated church in the village of Bani El-Walmous.
b)Various media organisations described the incident in different ways, but it appears that some Coptic Christians were injured, and some homes owned by Coptic Christians were damaged or destroyed.
c)It was suggested that the incident followed the ringing of the church bells during its consecration (which allegedly upset or frustrated local Muslims).
d)It would appear the police over 3 hours to attend at the scene of the incident.
e)The police acted appropriately after their arrival at the scene, and later arrested a relatively large number of people in relation to their involvement in the incident.
During the course of the hearing before the Tribunal on 5 September 2005, the applicant told the Tribunal that he had been personally involved in the incident described above[19].
[19] See pages 6 and 7 of the transcript.
The incident the subject of the article referred to above, and the applicant’s involvement in it, are dealt with in the Tribunal’s Decision at page 163 of the court book. The Tribunal wrote:
(The applicant) said he also was scared to go to church because of the violence. He said people “offend us” in the street verbally. He said “moderates” throw stones at Copts and extremists use weapons. He said he felt he could not pray in churches safely. He was asked if he had ever suffered such violence personally. He said he had in 2002 when he joined other Copts at the inauguration of a new church and a fight ensued with Muslims in the neighbourhood who opposed the construction of the church. He said the church was eventually inaugurated but the Muslims nearby still do not accept it.
It follows from the above discussion that the applicant’s assertion to the effect that the Tribunal ignored the February 2002 incident (and the applicant’s involvement in it) is simply incorrect. It was for the Tribunal to give the relevant evidence such weight as it considered appropriate in all the circumstances. This ground for review must fail
Discrimination in Employment
The applicant challenged the Tribunal’s findings regarding his prospects for employment if he were to return to Egypt.
The Tribunal’s findings in relation to this subject appear at page 170 of the court book, and are as follows:
The Tribunal has considered the applicant’s claims and his evidence. The Tribunal is prepared to accept that he may have suffered the discrimination he claims at university but notes that he graduated as a civil engineer and found work in his area of expertise. The Tribunal accepts that he may also have suffered discrimination in terms of not having the range of employment opportunities that a Muslim engineer might have access to. However, the Tribunal finds that any discrimination he suffered in education or employment was not to a degree that it would constitute serious harm given that he was able to graduate and also find employment. The Tribunal has considered the applicant’s claim that he might not be able to find any employment should he return because of discrimination but finds this speculative and not in accord with his experience thus far, and so the Tribunal does not accept that there is a real chance that he would face unemployment for reasons of his religion.
The issue of the applicant’s capacity to earn a livelihood, and his employment prospects generally, was raised by the applicant in his original application for a protection visa[20] and by the Minister’s delegate in his Decision Record.[21] The claim was raised again in the applicant’s written Submission to the Tribunal[22] and during the applicant’s oral evidence before the Tribunal on 5 September 2005.[23] The applicant’s claims are also dealt with in the Tribunal’s Decision Record.[24] I have already recorded the Tribunal’s finding in relation to the subject.[25]
[20] See page 27 of the court book.
[21] See pages 95 and 98 of the court book.
[22] See page 128 of the court book.
[23] See pages 4 to 6 of the transcript.
[24] See pages 159 and 162-3 of the court book.
[25] See paragraph 51 above.
On my opinion, the applicant’s Submission in relation to this subject amounts to little more than an attempt to review the Tribunal’s decision on its merits. The applicant has not established a jurisdictional error. I shall say more about this subject under the heading “Conclusion” below.
Failure to Adequately or Properly take into Account the Applicant’s Written Submission
The applicant argued that the Tribunal did not properly take into account the matters contained in the Submission (which is reproduced on pages 126-128 of the court book). The applicant said that the Submission “contained everything that (he) wanted to say”, and that it had been forwarded to the Tribunal approximately one month before the hearing. The transcript reveals, however, that the Tribunal had not read the Submission prior to the hearing, and only read it whilst the applicant was present. Indeed, the applicant argued that the Tribunal could not have read the Submission in detail whilst he was present before it, given the very short time that the Tribunal allocated to the task.
It is clear from the transcript[26] that the Tribunal had not seen the Submission prior to the hearing on 5 September 2005. It is also clear from the transcript[27], however, that the Tribunal informed the applicant that it was going to peruse the document and that it was “now up on it”.
[26] See page 2 of the transcript.
[27] See page 3 of the transcript.
Notwithstanding the events that occurred during the hearing on 5 September 2005, the fact of the matter is that the Tribunal dealt with the Submission – in detail – in its Decision Record. The Submission is referred to and quoted from on pages 160 to 162 of the court book.
In my opinion, this ground must fail. Irrespective of the Tribunal’s depth of knowledge of the Submission during the course of the hearing on 5 September 2005, it is clear from the Decision Record that it had paid careful attention to the matters contained therein.
There has been no denial of natural justice, or breach of the rules of procedural fairness on the part of the Tribunal in relation to this issue. The applicant did not suggest that the Tribunal had misunderstood the contents of the Submission, or that some clarification of the matters dealt with in the Submission was called for. Indeed, his argument before this court was that the Submission “contained everything (he) wanted to say”.
I am satisfied that, even if the Tribunal’s failure to read the Submission in detail prior to the hearing could somehow be regarded as a breach of the rules of procedural fairness (and, in my opinion, it cannot), then that breach did not deprive the applicant of the possibility of a successful outcome at the hearing. It has not been demonstrated that he suffered any practical injustice, because the Submission was in fact considered (and considered in detail) by the Tribunal.
Conclusion[28]
[28] The conclusion from my judgment in the matter of Wang v MIMIA [2005] FMCA 918 has been used as a “template” for the conclusion in these Reasons. I am of the opinion that the conclusion, as stated, clearly applies to the present case.
It is clear from the above that the applicant has not been successful in establishing any of the grounds for review upon which he relied.
While the making of findings and the drawing of inferences in the absence of evidence is an error of law[29], it is not possible to challenge an administrative decision on the ground that the findings made by the decision maker were “not open on the evidence”. The grounds on which this Court can review the Tribunal’s findings of fact are limited. It is not an error of law (in itself) for the Tribunal to make an incorrect finding of fact – at least where there is some material before the Tribunal to support the finding[30].
[29] See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357 per Mason CJ; MIMIA v Eshetu (1999) 197 CLR 611 at 654 (paragraph [138]) per Gummow J.
[30] See Waterford v The Commonwealth (1987) 163 CLR 54 at 77-78; Australian Heritage Commission v Mount Isa Mines (1997) 187 CLR 297 at 303.
As McHugh J said in Re: MIMA: Ex parte Cohen (2001) HCA 10 at [37]:
If an Administrative Tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an Administrative Tribunal to determine, and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reason or process to find it is usually a slender ground for concluding that a Tribunal misconceived its duty.
Overall, I am unable to identify any basis upon which the Tribunal’s decision can be interfered with. The Tribunal acted in good faith, its decision is reasonably capable of reference to the power given to it, its decision relates to the subject matter of the legislation and there can be no suggestion that any relevant constitutional limits were exceeded. In my opinion, there can be no suggestion of bias (whether actual or apprehended). Further, there is no apparent breach of procedural fairness which amounts to jurisdictional error. It has not been suggested that the applicant did not understand the proceedings in which she was involved – and, in my opinion, the Tribunal clearly understood the applicant’s case.
In my view, the findings of fact contained in the Tribunal’s decision, and the conclusions drawn from those facts, were reasonably open to it.
I am conscious of the observations of Spigelman CJ in Bruce v Coles (1998) NSWLR 163, where his Honour said:
In cases which engage the sense of compassion of a judge…, it is necessary to avoid the temptation to express a conclusion in terms of one of the recognised grounds for judicial review, whilst in truth making a decision based on the merits. In a democratic society, such conduct transgresses the proper limits of judicial intervention…
The applicant’s arguments amounted to little more than an attempt to review the Tribunal’s decision on its merits. But no basis for review exists simply because the court disagrees with the weight given by the Tribunal to various factors relevant to its decision. Nor can the court set aside a decision merely because it regards the Tribunal as having followed a process of logical reasoning with which the court has discomfort. The Tribunal’s process of reasoning (leading to a finding of fact) is not reviewable simply because the court may disagree with it – even if it considers that it was illogical or unreasonable to attribute weight to a factor (or to fail to attribute weight to another factor).
For the proceeding reasons, the grounds for review must fail and the application must be dismissed with costs.
I, Jacqueline Brodie-Hanns, certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Walters FM
Deputy Associate: Jacqueline Brodie-Hanns
Date: 24 April 2006
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