WZANC v Minister for Immigration
[2010] FMCA 274
•23 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZANC v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 274 |
| MIGRATION – Refugee Review Tribunal – protection visa – whether constructive failure to exercise jurisdiction – effect of administrative decision affected by jurisdictional error – effect of writs of certiorari and mandamus in relation to previous Tribunal’s “decision” – whether irrelevant material considered by Tribunal – whether jurisdictional error – nature of power of judicial review of migration decisions by Federal Magistrates Court – exercise of same jurisdiction as original jurisdiction of High Court. |
| Migration Act 1958 (Cth), ss.5, 36(2)(a), 91R(1) and (2), 424A(1), (3)(c), 425, 438(2), 476, Part 7, Division 4 |
| Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 Harris v Caladine (1991) 172 CLR 84 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518; [2003] HCA 11 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Mukto v Minister for Immigration and Multicultural Affairs [1999] FCA 1801 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 NBKB v Minister for Immigration and Citizenship (2009) 106 ALD 525; [2009] FCA 69 Nina Kung v Wang Din Shin [2005] HKCFA 54 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 SZGUW v Minister for Immigration and Citizenship (2009) 108 ALD 108; [2009] FCA 321 SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1; [2008] FCAFC 138 SZJEH v Minister for Immigration and Citizenship [2007] FCA 1706 Totev v Sfar (2008) 167 FCR 193; [2008] FCAFC 35 Walker v Roller Sports Australia Inc [2001] VSC 235 |
| M. Aronson, B. Dyer and M. Groves, Judicial Review of Administrative Action (4th Edn) (Sydney: Law Book Co, 2009) C. Enright, Federal Administrative Law (Sydney: Federation Press, 2001) |
| Applicant: | WZANC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 32 of 2009 |
| Judgment of: | Lucev FM |
| Hearing date: | 9 July 2009 |
| Date of Last Submission: | 28 October 2009 |
| Delivered at: | Perth |
| Delivered on: | 23 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Dr J L Cameron |
| Counsel for the Respondents: | Mr P J Hannan and Mr D Estrin |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be upheld.
That a writ of certiorari issue directing the second respondent to quash the decision made by it in relation to the applicant on 26 February 2009 and handed down on 27 February 2009.
That a writ of mandamus issue directing the second respondent to reconsider the applicant’s application according to law.
That a writ of prohibition issue directed to the first respondent preventing the first respondent from acting on the Delegate’s Decision of 13 February 2008 to refuse a protection visa to the applicant.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 32 of 2009
| WZANC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 3 July 2009 the applicant seeks judicial review under s.476 of the Migration Act 1958 (Cth)[1] of the Refugee Review Tribunal[2] decision handed down on 27 February 2009,[3] which affirmed the decision of a delegate[4] of the first respondent[5] handed down on 13 February 2008.[6]
[1] “Migration Act”.
[2] “Tribunal”.
[3] “Tribunal Decision”.
[4] “Delegate”.
[5] “Minister”.
[6] “Delegate’s Decision”.
By order of this Court on 14 October 2008[7] an earlier Tribunal “decision” dated 23 June 2008[8] in relation to the Delegate’s Decision was, by consent, quashed, and the Tribunal was directed to reconsider the matter according to law.[9]
[7] “October 2008 Order”: CB 148.
[8] “Purported Decision”.
[9] The precise terms of the October 2008 Order are set out at para.25 below.
Grounds of application
On 18 March 2009 the applicant filed an application in this Court seeking judicial review of the Tribunal Decision. The amended application was filed on 9 July 2009.
The grounds on which the amended application alleges jurisdictional error and a constructive failure by the Tribunal to exercise jurisdiction, and therefore seeks judicial review of the Tribunal Decision, are set out below.
Ground 1.1
Ground 1.1 of the Amended Application pleads that the Tribunal fell into jurisdictional error and thereby constructively failed to exercise its jurisdiction when it failed to conduct a hearing de novo after the Purported Decision had been quashed by consent on the grounds of jurisdictional error.
The particulars of ground 1.1 are as follows:
a)the Purported Decision was quashed by consent in the October 2008 Order on the grounds of want of procedural fairness in the conduct of the review. A writ of mandamus issued directing the Tribunal to reconsider the application according to law;
b)in the circumstances the Tribunal was required to conduct a hearing de novo; and
c)the Tribunal conducted the hearing presently under review as if it were a rehearing and took into consideration the evidence and findings set out in the Purported Decision.
Ground 1.2
Ground 1.2 of the Amended Application alleges the Tribunal committed jurisdictional error and constructively failed to exercise jurisdiction when it failed to refer the so-called “dob-in” material to the applicant and his migration agent and adviser in compliance with the provisions of s.424A of the Migration Act absent notification by the Secretary of the Department of Immigration and Citizenship[10] in accordance with the provisions of s.438(2) of the Migration Act.
[10] “Secretary” and “Department” respectively.
The particulars of ground 1.2 are that the Tribunal acted on the basis of “dob-in” material without referring sufficient particulars of the material, including the identity of the informant, to the applicant and his migration adviser for comment pursuant to the provisions of s.424A of the Migration Act, without there being a notification from the Secretary of the Department under the provisions of s.438 of the Migration Act that the section applied, and without a claim that it was “non-disclosable information” within the meaning of ss.424A(3)(c) and 5 of the Migration Act.
Ground 1.3
Ground 1.3 of the Amended Application pleads that the Tribunal fell into jurisdictional error and thereby constructively failed to exercise its jurisdiction when it dismissed documentary evidence supporting the applicant’s claim to be a member of the Ahmadi faith, and to have suffered persecution on the grounds of his religion, without giving the applicant an opportunity to comment on the evidence, and when there was no evidential basis for dismissing the evidence.
The particulars of ground 1.3 are that:
a)the Tribunal dismissed the evidence provided by the applicant that he was of the Ahmadi faith in his birth certificate and in the death certificates of his parents without there being any or any sufficient evidence that the contents of the documents had been falsified, or that the documents had been fraudulently obtained;
b)the Tribunal dismissed evidence in the form of a police report concerning an incident supporting the applicant’s claim to have been persecuted on the grounds of his Ahmadi faith without there being any or any sufficient evidence that the contents of the document had been falsified, or that the documents had been fraudulently obtained;
c)the Tribunal dismissed evidence in the form of land transfer documents supporting the claim that following this incident the applicant’s brother had sold land to finance the applicant’s travel to Australia without there being any or any sufficient evidence that the contents of the document had been falsified, or that the documents had been fraudulently obtained; and
d)the Tribunal failed to warn the applicant or his migration adviser that the Tribunal proposed to treat these documents as having been falsified or fraudulently obtained and to disregard them as evidence in support of the applicant’s claim, and failed to give the applicant an opportunity to comment.
Ground 1.4
Ground 1.4 of the Amended Application pleads that the Tribunal fell into jurisdictional error and thereby constructively failed to exercise its jurisdiction when it based its finding on errors of fact which were unsupported by any or any sufficient evidence.
The particulars of ground 1.4 are as follows:
a)the Tribunal found that the Applicant could have made contact with adherents to the Ahmadi faith in Adelaide and Western Australia by accessing the website of the Australian Ahmadi Association when there was no evidence to support any such finding; and
b)the Tribunal confused the city of Sahiwal with the applicant’s village which was some 25 kilometres distant from Sahiwal.
Consideration
Ground 1.1
Submissions
The October 2008 Order quashed the Purported Decision, and directed that the Tribunal “reconsider the … application according to law.” The applicant submits the effect of the October 2008 Order was that the Purported Decision was a nullity, and the hearing treated as if it had never taken place.[11]
[11] Citing Ruddock v Taylor (2005) 222 CLR 612 at 656 and 658 per Kirby J; [2005] HCA 48 at paras.161 and 168 per Kirby J (“Ruddock”).
The applicant contended that the Tribunal had to consider the applicant’s protection claims de novo. The applicant submits that this is because the Migration Act in Part 7, Division 4 entitled “Conduct of review” contains no provision for the rehearing of an application. The applicant says that at the commencement of the oral hearing the Tribunal announced that it would be conducting a hearing de novo, but that what emerged at the hearing was quite different. The applicant says that the Tribunal confirmed with the applicant the evidence previously given to the Tribunal, and set out the findings in the Purported Decision.[12]
[12] CB 213-215.
The applicant says that in a hearing de novo the court or tribunal treats the application for review as if it were coming before it for the first time.[13] In conducting the hearing as it did the applicant says that the Tribunal strayed outside its jurisdiction, leading to a constructive failure to exercise jurisdiction, and entitling the applicant to relief by way of certiorari and mandamus.
[13] Citing Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620 per Mason J (“Sperway Constructions”); Harris v Caladine (1991) 172 CLR 84 at 124-125 per Dawson J; (“Caladine”); Walker v Roller Sports Australia Inc [2001] VSC 235 at para.43 per Hansen J; Totev v Sfar (2008) 167 FCR 193 at 196-197 per Emmett J; [2008] FCAFC 35 at paras.12-13 per Emmett J (“Totev”).
The respondents submit that:
a)even assuming ground 1.1 pleads a jurisdictional error, the pleaded error is not made out;
b)that the Tribunal did in fact and in law conduct a fresh hearing untrammelled by the findings made, and the outcome reached, in the Purported Decision;
c)that cases such as Sperway Constructions deal with:
i)the meaning of “appeal” in the context of various statutory appeal rights;
ii)possible meanings include “appeal by way of re-hearing”, “hearing de novo”, “appeal in the strict sense”, etc; and
iii)ultimately, the meaning of the word “appeal” turns upon a proper construction of the statute containing the right of appeal;[14]
[14] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 202–203 per Gleeson CJ, Gaudron and Hayne JJ; [2000] HCA 47 at para.11 per Gleeson CJ, Gaudron and Hayne JJ.
d)the real question is whether the Tribunal complied with the writ of mandamus which did no more than require the Tribunal to act in accordance with the Migration Act – including s.425;[15]
e)that ground 1.1 is based on a mis-reading of the Tribunal Decision, in that:
i)the Tribunal did not adopt any finding or conclusion made in the Purported Decision; and
ii)all that the Tribunal did was summarise the case presented by the applicant which resulted in the Purported Decision;
f)there is, in principle, no difference between following a course, such as that adopted by the Tribunal here, and noting a previous inconsistent statement made by the applicant before the Delegate or in the documents lodged with the Tribunal in support of the application for review, and, therefore, there can be no objection to the Tribunal taking into account the previous evidence presented by the applicant leading to the making of the Purported Decision;
g)there is no objection to a trial judge adopting word for word an extract from a party’s outline of submissions, so long as the judge brings to bear an independent mind, and is seen to do so,[16] and, by analogy, there can be no objection to the Tribunal adopting a conclusion made by a previous Tribunal; and
h)there is nothing in the Tribunal’s Decision to suggest that the Tribunal considered itself bound by a finding or conclusion in the Purported Decision.
[15] NBKB v Minister for Immigration and Citizenship (2009) 106 ALD 525 at 530–532 per McKerracher J; [2009] FCA 69 at paras.28-35 per McKerracher J; SZGUW v Minister for Immigration and Citizenship (2009) 108 ALD 108 at 114 per Reeves J; [2009] FCA 321 at para.19 per Reeves J.
[16] Citing Nina Kung v Wang Din Shin [2005] HKCFA 54 (Hong Kong Court of Final Appeal) at 445– 456 per Robeiro PJ (with whom Lord Scott of Foscote NPJ agreed at 607).
Background
The background relevant to ground 1.1 is set out below.
The applicant is a 34 year old male citizen of Pakistan born on 15 October 1974.[17]
[17] CB 2, 3 and 4.
On 19 October 2007 the applicant lodged with the Department an application dated 16 October 2007 for a protection visa.[18] At the time, the applicant was being assisted by a registered migration agent.[19]
[18] CB1, 2 and14.
[19] CB 1, 25 and 44-46.
On 19 December 2007 the applicant made a statutory declaration in support of his protection visa application.[20]
[20] CB 51-53.
The Delegate’s Decision made on 13 February 2008 was to refuse to grant the applicant a protection visa.[21]
[21] CB 83-93.
On 6 March 2008 the applicant lodged with the Tribunal an application for review of the Delegate’s Decision not to grant the applicant a protection visa.[22]
[22] CB 95-100.
On 27 May 2008 the Tribunal held a hearing in Melbourne.[23]
[23] CB 106 and 120.
On 23 June 2008 the Tribunal in making the Purported Decision purported to affirm the Delegate’s Decision not to grant the applicant a protection visa,[24] and on 3 July 2008 informed the applicant accordingly.[25]
[24] CB 133-145.
[25] CB 131-145.
On 14 October 2008 this Court made the October 2008 Order. It was made by consent. It provided as follows:
1.A writ of certiorari issue to quash the decision made by the second respondent in relation to the applicant dated 23 June 2008.
2.A writ of mandamus issue directing the second respondent to reconsider the applicant’s application according to law.
3.The first respondent pay the applicant’s costs, if any, in the sum of $3000.00.
Note: The Court notes that the first respondent accepts that the application must be allowed on the basis that the second respondent’s decision was affected by jurisdictional error. The second respondent failed to consider an integer of the applicant’s claim, specifically failing to consider the death certificate of the applicant’s parents and the birth certificate of the applicant, which purported to prove his claim of being an Ahmadi Muslim.
The application thereafter came before a differently constituted Tribunal. On 28 November 2008 the applicant’s migration agent provided the Tribunal with written submissions.[26] In the November 2008 Submissions the applicant expressly submitted that the Tribunal “must consider … [the applicant’s] claims for protection de novo.”[27] On 1 and 4 December 2008 the Tribunal held a hearing in Melbourne.[28]
[26] CB 162–175, including a copy of the response to a s.424A Letter: CB 171-175 (“November 2008 Submissions”).
[27] CB 165.
[28] CB 158, 176, 181 and 182 (“Tribunal Hearing”).
Tribunal Decision
On 26 February 2009 the Tribunal affirmed the Delegate’s Decision not to grant the applicant a protection visa.[29] On 27 February 2009 the Tribunal informed the applicant of the Tribunal Decision.[30]
[29] CB 205 and 242.
[30] CB 203.
The Tribunal Decision sets out that it is in respect of an application for review of the Delegate’s Decision to refuse to grant the applicant a protection visa under s.65 of the Migration Act.[31] The relevant law, including the definition of “refugee”, is set out in the Tribunal Decision.[32]
[31] CB 206.
[32] CB 206-208.
Under the heading “Claims and Evidence” the Tribunal Decision sets out the personal details of the applicant.[33] The details of the applicant’s protection visa application are set out at length including setting out in full the statement made accompanying the protection visa application.[34]
[33] CB 208.
[34] CB 209-211.
The Tribunal Decision then sets out in detail the submissions made on behalf of the applicant explaining why he fears that he will be persecuted in Pakistan on religious grounds.[35]
[35] CB 211-212.
The Tribunal Decision then notes that the applicant had told the Department that he did not know whether his passport was a genuine passport or not.[36]
[36] CB 212.
The Tribunal Decision also notes the receipt by the Department of a November 2002 police report, with authorised translation, relating to a complaint about the attempted building of a mosque and a transfer of land document detailing the sale of land owned by the applicant and his brother in July 2003.[37]
[37] CB 212.
The Tribunal Decision then refers to a memo from a case officer in the Department’s Western Australian Compliance Section referring to “dob-in” information commencing December 2007 regarding the applicant, including information that the applicant was not in fact an Ahmadi but that his claim to that effect had been contrived.[38]
[38] CB 212.
The Tribunal Decision then sets out the detail of a record of a telephone interview conducted with the applicant on 18 January 2008.[39] That interview was less than a month before the application was refused by the Delegate on 13 February 2008.
[39] CB 212-213.
The Tribunal Decision then sets out the summary of the applicant’s claims and evidence from the Purported Decision.[40] Having referred to “the review by the Tribunal at first instance” and the “decision of the Tribunal as previously constituted”,[41] the summary, set out in full below, is as follows:
[40] CB 213-215.
[41] CB 213.
“At a hearing of the Tribunal on 27 May 2008, the applicant said his family were harassed a lot after he left, and had no work or property, so they moved to Lahore about a later. [sic] He said they were the only Ahmadi family in their village. Both their parents were Ahmadi. He presumes they were Ahmadi families since before Partition. He was very young when his parents died so he knows little of the family history.
The applicant said his family worshipped at home, however their home was very small. His sister married (an Ahmadi) and had moved away from home but his brother and sister-in-law lived with him and his two other sisters. The Tribunal observed that in his first written statement the applicant had suggested he became the head of the household after his brother married and moved away.
The applicant said the nearest Ahmadi mosque is 22 kilometres away in the district centre (Sahiwal). This was also the location of the nearest Ahmadis. The applicant said he and his family would go there every few months. Otherwise they worshipped at home but their house was too small. They decided to build a mosque in front of the house. The Tribunal asked the applicant how far they got with the building. The applicant said they were attacked as soon as they started. They were “getting ready to start” or were “just starting”. The Tribunal asked the applicant precisely what he meant by that. The applicant did not answer, so the question was repeated. The applicant said they had just started to dig, and the building materials were ready. Asked what the building materials were the applicant said they had no steel, it would be built of sand and clay. The Tribunal asked what they had on site. The applicant said they had nothing on site. He said everyone else was digging and the applicant had gone to obtain materials. Asked to elaborate, the applicant said he had gone to get digging tools from the Christian family.
The Tribunal commented that the building project did not seem very well-planned, from the applicant’s account. The applicant said they would have got what they needed as they went along.
The applicant provided reasonable answers to the Tribunal’s questions about the Ahmadi faith and why and how it was persecuted.
The applicant said he was next door when he heard the attack on his family – he could see it taking place as well. So he ran away and caught a wagon to Lahore which is about 150 to 200 kms away. It took 4-5 hours to get there. Asked why he went so far away, the applicant said his father’s best friend was there. He hid there.
The Tribunal asked the applicant why he didn’t go back to his family. The applicant said the attackers were looking for him and would kill him. Asked what happened to his family (after the attack) the applicant said they went to hospital (about 2 kms away) and then they lodged a complaint with the police.
The Tribunal observed that it appeared from the applicant’s account that his family went home and nothing happened to them after that – why would the applicant be sought out and killed? The applicant said the villagers believe that he is the religious one in the family.
The Tribunal asked the applicant what he believed the 1 million rupees he paid the smuggler was for – it was a lot of money and he could have applied to the Pakistan authorities himself for a passport? The applicant said he was not educated. Later he confirmed that the money was also to obtain a four-year visa for Australia. He said he did not sign any forms in relation to his travel documents. The signature and fingerprint on the passport are not his.
The applicant confirmed he had had no involvement with Ahmadis in Australia. He does not know where to worship and has not met any one in the community. He has been very stressed about his situation. He follows his religion at home.
The Tribunal observed that the applicant did not make a protection visa application until he had been here for four years. The applicant said that was because he was uneducated, and he was afraid. He thought he would be imprisoned if he came forward, and did not even know the word “immigration”.
The Tribunal put to the applicant that there had been an allegation that he was not Ahmadi. The applicant said he was an Ahmadi and that was the truth. He wanted to stay in Australia and practice his religion freely.
The adviser highlighted the evidence in support of the applicant’s claims – the police report, the transfer of land and the letter from the Sahiwal Ahmadis – all of which put it beyond doubt that the applicant’s claims were true. After his family returned from hospital they were still prevented from practising their religion and had to go to Lahore.
The applicant at this point claimed that his enemies also searched for him in Lahore – they asked his father’s friend about him. The Tribunal noted that this appeared to be a new claim.”[42]
[42] CB 213-215.
The Tribunal Decision then notes that “the decision of the Tribunal at first instance was set aside” by consent by this Court and remitted “on the basis that the Tribunal at first instance had apparently failed to have regard to the evidence suggesting that the applicant’s parents were Ahmadi.”[43]
[43] CB 215.
Evidence before the Tribunal
The Tribunal Decision then sets out, in great detail, the evidence given by the applicant on the first and second days of the Tribunal Hearing and identifies the issue of concern for the Tribunal as being whether the applicant’s claims to have been an Ahmadi and therefore to experience persecution for that reason were true.[44]
[44] CB 219.
The evidence canvassed:
a)the applicant’s Ahmadi religious affiliation;[45]
b)the decision to build a mosque in the yard of the home of the applicant and his brother and why that was done in circumstances where the applicant claimed to have been experiencing prior adverse treatment from Muslims in the neighbourhood;[46]
c)why the applicant was particularly targeted for abuse and attack, rather than his brother or other members of his family;[47]
d)his relocation to Lahore;[48]
e)why he had not applied for a protection visa sooner after arriving in Australia;[49]
f)information concerning the identity of the alleged informant and what the applicant had to say concerning the alleged informant and the reasons for the alleged informant submitting “dob-in” material to the Department;[50]
g)questions about the applicant’s marriage in Australia, how he met his wife, where they lived, and her knowledge of his claim for a protection visa;[51]
h)questions about a statutory declaration made in respect of the applicant’s Red Cross Asylum Seeker Assistance Scheme[52] application on 12 May 2008 indicating that he and his wife had separated, and he explained that they were separated briefly but had got back to together;[53]
i)questions about the applicant’s efforts to contact other members of the Ahmadi community and find out information available to the Tribunal that there was an Ahmadi organisation in Australia with groups in Western Australia and South Australia. The applicant indicated that he was not very literate and that he made efforts but did not know about these groups;[54] and
j)questions about the manner in which the applicant had obtained his passport and an Australian business visa, to which the applicant said that it was all done through an agent and that he had simply provided a photo, and that there was no basis for his being granted an Australian business visa, but denied that he had used false documents.[55]
[45] CB 219-220.
[46] CB 220-221.
[47] CB 221.
[48] CB 221.
[49] CB 222.
[50] CB 223-224.
[51] CB 224.
[52] “ASAS”.
[53] CB 224-225.
[54] CB 225.
[55] CB 225-226.
The Tribunal referred to the dob-in letter and suggested that it was relevant as it specifically stated that the applicant was not Ahmadi and was in fact contemptuous of Ahmadis, and that was relevant because it cast doubt on the genuineness of the applicant’s claims.[56]
[56] CB 228.
The Tribunal also clarified that an interpreter whom the applicant believed was responsible for the “dob-in” material was not in fact that person. He was not therefore a person connected to the applicant. The Tribunal indicated that this may be relevant because the applicant had suggested that the interpreter had a vengeful motive related to an incident where the applicant was caught working illegally. However, the Tribunal noted that the applicant being caught working illegally occurred after the dob-in was made, and that the dob-in could not have been motivated by revenge as the applicant claimed, and that there was no obvious motivation for the dob-in, which meant that the Tribunal was likely to accord the “dob-in” material weight. The Tribunal also noted that there was other dob-in information on the Department’s records which suggested that allegations had been made about the applicant working illegally as long ago as 2006. The applicant denied those allegations.[57]
[57] CB 228.
Findings and reasons
The Tribunal accepted that the applicant was a citizen of Pakistan.[58] Further, the Tribunal found that the reason the applicant would experience persecution in Pakistan, if his claims were made out, is by reason of his religion, thereby satisfying the requirements of s.91R(1)(a) of the Migration Act.[59]
[58] CB 236.
[59] CB 237.
The Tribunal then turned to the question of whether or not the applicant was likely to experience a real chance of serious harm.
The Tribunal considered the “dob-in” material which had been received by the Department and which made various allegations against the applicant. It noted that some of the information in the “dob-in” material was put to the applicant at the “first Tribunal hearing”,[60] and this, as well as information which the Tribunal considered relevant, credible and significant, was also put to the applicant at the Tribunal Hearing.[61] The Tribunal dealt with the applicant’s explanation of whom he thought the “dob-in” material might have come from, and why it ought not be relied upon given its source (as assumed by the applicant). The Tribunal relied upon the “dob-in” material in relation to the applicant’s protection visa claims because:
a)it had not been provided anonymously to the Department; and
b)it was not demonstrably not credible information.[62]
[60] CB 237.
[61] CB 237.
[62] CB 238.
The Tribunal noted that the same source has provided information to the Department concerning the applicant working illegally as early as June 2006, which information had proved to be correct as the applicant had in fact been caught working illegally in March 2008. Because the “dob-in” material in relation to the protection visa claim was from the same source the Tribunal considered that the reliability of the employment related “dob-in” material meant that it could place considerably more weight on the protection visa claim related “dob-in” material because it:
a)was from the same source; and
b)pre-dated the applicant being caught working illegally,
the latter meaning that no vengeful motivation could be attributed to it, and which the Tribunal observed “appears … to be credible because it proved to be accurate, and it was also both relevant and significant because it reflects on the applicant’s credibility, which is in issue in the present case.”[63]
[63] CB 238.
The Tribunal found that the claim that there was an attempt to build a mosque on land owned by the applicant and his brother defied common sense because of the history of hostility, discrimination and abuse the applicant claimed to have already suffered by reason of being Ahmadi. The Tribunal found that it was more likely than not that the attempted building of the mosque did not occur, and that it was apparent from the applicant’s evidence, and the country information generally, that for an Ahmadi to build a mosque “would, unfortunately, be asking for trouble.”[64] Therefore, the Tribunal thought that the explanation as to why the mosque had been attempted to be built, including the fact that the applicant did not appreciate the consequences which might follow, was not a sensible one.[65] The Tribunal also found that a claim, belatedly made, by the applicant to have returned to Sahiwal in May 2003 was clearly at odds with his claimed fear of persecution. The Tribunal cited evidence given to the Department, and at the “first hearing”, “as reflecting some basic knowledge and experience” of a person who had practised and was an adherent of the Ahmadi faith. The Tribunal said that it was difficult to see and understand why a person would return to a threatening environment (Sahiwal) in order to register as an Ahmadi and obtain a certificate to that effect, when to return was to return to an environment threatening to an Ahmadi according to the applicant’s claim.[66]
[64] CB 238.
[65] CB 238.
[66] CB 239.
The Tribunal also observed that it was puzzled by the applicant’s lack of contact with Ahmadi groups in Australia, to which the applicant had responded that he was scared to make such contact in case his migration status was revealed, but had otherwise observed that he could attend regular mosques in Australia with Muslims. The Tribunal indicated that it was sceptical of that assertion as it:
“… suggests that the applicant had no difficulty acquiring information about the practise of mainstream Islam in Australia, which belies his claimed reluctance to reveal his migration status. … it makes no sense for that person to avoid his co-religionists but engage with members of the allegedly persecutory group. In circumstances such as those claimed by the applicant, the applicant’s engagement with mainstream Muslims would appear potentially far more likely to lead to the revelation of his migration status than if he were to seek out and engage with the group which … if he were in fact a genuine member of the Ahmadi faith, would give him a more sympathetic reception.”[67]
[67] CB 239.
The Tribunal considered that the above matters were illogical and inconsistent elements of the applicant’s claims and tended to cast doubt on the truth of his claims.[68]
[68] CB 239.
The Tribunal then turned to the question of falsity of statements or documents alleged to have been made by the applicant and said that the applicant had “displayed a propensity to make misrepresentations and rely on fraudulent documents.”[69]
[69] CB 240.
The Tribunal was concerned with the applicant’s actions in Australia, including:
a)using another person’s identification documents while working illegally in Australia and, at least initially, lying to officers of the Department by denying his true identity; and
b)statements made when applying to the Red Cross for ASAS which the applicant subsequently conceded were false (even though made out of financial necessity).
The Tribunal took the view that the giving of false evidence and the making of false statements were such that it cast doubt on the applicant’s credibility generally.[70]
[70] CB 241.
The Tribunal also dealt with the four year delay in making a protection claim from the time that the applicant arrived in Australia. The Tribunal did not accept that the applicant had good reason for doing so.[71]
[71] CB 241.
The Tribunal concluded that the applicant’s claims had been invented, and that he was not in fact an Ahmadi, and therefore could not have suffered the alleged discrimination, insult, assault and abuse which he had claimed.[72]
[72] CB 241-242.
The Tribunal found that the documents submitted or relied upon by the applicant, including:
a)the police report;
b)the land transfer certificate extract;
c)the parents’ death certificates;
d)the birth certificate;
e)the certificates signed by Mr Hafeez-ur-Rehman suggesting that the applicant was Ahmadi; and
f)a letter from his brother read out at hearing,
had all been fabricated or contrived to give his claims “a veneer of authenticity”.[73]
[73] CB 242.
In regard to the falsity of the documentation the Tribunal placed weight upon country information which suggested that Pakistani documents which are genuine insofar as they are issued by the relevant agency may nevertheless be fraudulent in the sense that corruption is such that officials accept money or other inducements to issue authentic but false documents.
In all the circumstances the Tribunal was not satisfied that there was a real chance that the applicant would experience serious harm capable of amounting to persecution for the purposes of s.91R(2) of the Migration Act, and the Tribunal affirmed the decision of the Delegate not to grant the applicant a protection visa.[74]
[74] CB 242.
Jurisdictional error
The Tribunal must decide if it is satisfied the applicant is a refugee under the Convention, before deciding whether to grant or refuse a protection visa.[75] The applicant must make out the factual basis of an application for review by the Tribunal of a Delegate’s Decision not to grant a protection visa.[76] Fact finding, including the making of credibility findings, is a matter specifically for the Tribunal, and not within the jurisdiction of the Court. The Court has no jurisdiction to engage in merits review.[77] The Tribunal need not have rebutting evidence available before rejecting a factual assertion made by an applicant.[78] There is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact.[79]
[75] Migration Act, s.36(2)(a); NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 14 per Black CJ, French & Selway JJ; [2004] FCAFC 263 at para.44 per Black CJ, French & Selway JJ (“NABE (No. 2)”).
[76] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348(i) per Heerey J (“Selvadurai”).
[77] NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at para.9 per Heerey, RD Nicholson & Selway JJ (“NADR”).
[78] Selvadurai at 348(i) per Heerey J; Mukto v Minister for Immigration and Multicultural Affairs [1999] FCA 1801 at para.13 per French J.
[79] NADR FCAFC at para.9 per Heerey, RD Nicholson & Selway JJ; NABE (No. 2) FCR at 16–17 per Black CJ, French & Selway JJ; FCAFC at paras.52-54 per Black CJ, French & Selway JJ; SZJEH v Minister for Immigration and Citizenship [2007] FCA 1706 at para.17 per Jacobson J (“SZJEH”).
A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[80] An error by the Tribunal will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[81]
[80] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[81] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.
What then is the effect of an administrative decision that involves jurisdictional error?
That question was extensively canvassed by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj[82] in the context of the powers of the then Immigration Review Tribunal.[83]
[82] (2002) 209 CLR 597; [2002] HCA 11 (“Bhardwaj”).
[83] “Immigration Tribunal”.
In Bhardwaj the agent of an applicant for review by the Immigration Tribunal had sent by facsimile a letter to the Immigration Tribunal advising that the applicant was unable to attend the scheduled hearing and seeking a later hearing date. The letter was not brought to the attention of the member of the Immigration Tribunal determining the application. The hearing of the application therefore proceeded in the absence of the applicant, and the decision under review was affirmed. The Immigration Tribunal prepared a written statement setting out its decision, its reasons and its findings and referring to the evidence on which the findings were based and sent copies to the applicant. The applicant’s agent made representations to the Immigration Tribunal, following which the Immigration Tribunal held a further hearing of the application and made a second decision, this time, in favour of the applicant. The High Court held that the Immigration Tribunal had the power to make the second decision, and, in essence, that the first decision, because it was affected by jurisdictional error, was of no force and effect. The effect of an administrative decision involving jurisdictional error was variously described by Justices of the High Court as follows:
a)that a “decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all”;[84]
[84] Bhardwaj CLR at 614-615 per Gaudron and Gummow JJ; HCA at para.51 per Gaudron and Gummow JJ. The same view was also expressed by the same Justices at CLR at 616; HCA at para.53.
b)that the affected “decision was of no force or effect because of jurisdictional error on the part of the [Immigration] Tribunal”[85] and it “was of no force or effect by reason of jurisdictional error”;[86] and
c)although expressed in a dissenting judgment, Justice Kirby said that:
i)“a decision tainted by jurisdictional error is valid and effective unless and until it is retrospectively invalidated (ie declared “void”) by a court”;[87] and
ii)“the assumption upon which s75(v) [of the Constitution] is written appears to be that even fundamentally flawed decisions by officers of the Commonwealth, without constitutional power or otherwise contrary to Federal law, will remain valid for some purposes and have to be obeyed until set aside by a court, at the very least to the extent of engaging the jurisdiction of this Court under the Constitution”[88] (and the Court notes that it has the same original jurisdiction in relation to migration decisions of the Tribunal as the High Court has under s.75(v) of the Constitution);[89]
d)that:
i)“ … if the decision would be set aside for jurisdictional error, the statutory power given to the Tribunal has not been exercised”;[90]
ii)when “it is recognised that a court could set it aside for jurisdictional error, the decision can be seen to have no relevant legal consequences”;[91]
[85] Bhardwaj CLR at 618 per McHugh J; HCA at para.63 per McHugh J.
[86] Bhardwaj CLR at 619 per McHugh J; HCA at para.67 per McHugh J.
[87] Bhardwaj CLR at 631-632 per Kirby J; HCA at para.103 per Kirby J, citing Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 at 277 per Aickin J.
[88] Bhardwaj CLR at 633 per Kirby J; HCA at para.108 per Kirby J.
[89] Migration Act, s.476(1).
[90] Bhardwaj CLR at 646 per Hayne J; HCA at para.152 per Hayne J.
[91] Bhardwaj CLR at 647 per Hayne J; HCA at para.153 per Hayne J.
It needs to be appreciated that the views of the High Court in Bhardwaj above were expressed in the context of an administrative decision which was not quashed by a writ of certiorari, merely superseded by a second administrative decision by the Immigration Tribunal. Where a writ of certiorari has issued the above views must apply with even greater force. Where a writ of certiorari has issued the effect of that issuance has been summarised as follows:
“Where a writ of certiorari issues to quash an administrative decision, it operates with retrospective effect. That is, it operates from the date of the decision itself. The result of the writ is that the impugned decision has no legal effect. In the eye of the law the decision is void ab initio.”[92]
[92] Ruddock CLR at 656 per Kirby J; HCA at para.160 per Kirby J.
Leading text writers support the above summation. Enright writes that:
“Certiorari quashes a decision. Usually it quashes the decision from the time that it is made, ie ab initio.[93]
[93] C. Enright, Federal Administrative Law (Sydney: Federation Press, 2001) page 587 (“Enright”).
Aronson, Dyer and Groves say that:
“Certiorari quashes the impugned decision. It does not compel the decision-maker to start again. Mandamus should be sought, where that is wanted.”[94]
[94] M. Aronson, B. Dyer and M. Groves, Judicial Review of Administrative Action (Sydney: Law Book Co, 2009) page 801.
A writ of mandamus has the effect of ordering the performance of an unfulfilled duty according to law, but does not quash the relevant decision, that being the task of the writ of certiorari.[95]
[95] Enright at 588.
In Minister for Immigration and Multicultural Affairs v Wang[96] the High Court was dealing with a question as to the constitution of the Refugee Review Tribunal upon remitter of a matter by the Federal Court. In so doing it was necessary for the members of the High Court to deal with the nature of the statutory scheme under the Migration Act and the effect of findings made by the Tribunal in its first statement of reasons when the Tribunal comes to consider the matter upon remitter. The then Chief Justice of the High Court observed that:
“Under the statutory scheme, and in consequence of the other orders made by the Full Court, the Tribunal is now obliged to undertake a further review of the delegate's decision. The Tribunal's decision upon that review is to be made on the basis of the facts as they appear in the course of that review. To what extent the information before the Tribunal will differ from the information that was originally before Ms Boland is not known. The findings made by Ms Boland will have no legal status in that further review. Neither Ms Boland, if she undertakes the further review, nor any other member of the Tribunal, if the Tribunal is differently constituted, will be bound by them. The most that can be said is that, as a practical matter, if Ms Boland undertakes the review, then, unless there is a significant change in the information before the Tribunal, she is unlikely to alter the view of the facts she took previously…”[97]
[96] (2003) 215 CLR 518; [2003] HCA 11 (“Wang”).
[97] Wang CLR at 525 per Gleeson CJ; HCA at para.16 per Gleeson CJ.
The Chief Justice went on to further observe that:
“Justice requires that the respondent's claim be considered fairly, and on its substantial merits. It does not require that the hearing be conducted on the basis that any favourable findings of fact, made in the course of the decision that was set aside by the Full Court, be somehow preserved for his benefit.”[98]
[98] Wang CLR at 526 per Gleeson CJ; HCA at para.18 per Gleeson CJ.
Justices Gummow and Hayne dealt with the matter at some length. They said:
“The Court's direction that the Tribunal be constituted in a particular way said nothing about how the Tribunal, so constituted, should regard findings made in the course of the first review. The Court's orders, taken as a whole, provided for the Tribunal to begin again its statutory task of reviewing the decision to refuse the respondent a protection visa.”[99]
“Whether any findings from the first review would be preserved would entirely depend upon the view formed by the Tribunal in conducting the second review. On that second review the respondent, as applicant for a visa, could be expected to appear to give evidence and present arguments, and, so far as the Court's orders were concerned, it was a review to be conducted in the ordinary way.”[100]
[99] Wang CLR at 539 per Gummow and Hayne JJ; HCA at para.67 per Gummow and Hayne JJ.
[100] Wang CLR at 540 per Gummow and Hayne JJ; HCA at para.68 per Gummow and Hayne JJ.
Justices Gummow and Hayne went on to observe that there were “more fundamental reasons why the conclusion that it was desirable to preserve findings made at the first review was wrong.”[101] Having dealt with the statutory mechanisms related to the Tribunal conducting a review of a Delegate’s Decision,[102] Justices Gummow and Hayne, having made reference to a particular finding by the Tribunal, went further, as follows:
[101] Wang CLR at 540 per Gummow and Hayne JJ; HCA at para.68 per Gummow and Hayne JJ.
[102] Wang CLR at 540 per Gummow and Hayne JJ; HCA at paras.69-70 per Gummow and Hayne JJ.
“70…. Exactly what that finding amounts to is not perspicuously clear. However, whether or not the identification of the Tribunal's findings would be controversial, there is a more deep-seated problem that is presented by seeking to identify findings made by the Tribunal and have the Tribunal then rely on them in a later review.
71. In adversarial litigation, findings of fact that are made will reflect the joinder of issue between the parties. The issues of fact and law joined between the parties will be defined by interlocutory processes or by the course of the hearing. They are, therefore, issues which the parties have identified. A review by the Tribunal is a very different kind of process. It is not adversarial; there are no opposing parties; there are no issues joined. The person who has sought the review seeks a particular administrative decision -- in this case the grant of a protection visa -- and puts to the Tribunal whatever material or submission that person considers will assist that claim. The findings of fact that the Tribunal makes are those that it, rather than the claimant, let alone adversarial parties, considers to be necessary for it to make its decision. Those findings, therefore, cannot be treated as a determination of some question identified in any way that is distinct from the particular process of reasoning which the Tribunal adopts in reaching its decision.
…
73. Necessarily, the findings that are recorded in the Tribunal's written statement of its decision and reasons will reflect the matters that the applicant for review will have sought to agitate. No less importantly, the findings that are recorded will reflect what the Tribunal considered to be material to the decision which it made on the review. And what was material to that decision will depend upon the view that the Tribunal formed about the relevant legal questions that the review presented.
74. It follows, therefore, that to attempt to divorce the Tribunal's statement of its findings on what it considered to be a material question of fact, from the decision it made and, in particular, from its reasons, may be dangerous in cases like the present where it is accepted that the Tribunal made an error of law. There are several reasons why it may be a dangerous process. First, there is the notorious difficulty of disentangling findings of fact from conclusions about applicable legal principle. Secondly, assuming that those difficulties can be surmounted, the findings of fact which the Tribunal makes after hearing and assessing the body of material and submissions will necessarily reflect the Tribunal's conclusions about applicable legal principle and will be directed to the questions that those principles present. If, in that review, the Tribunal makes an error of law and a subsequent review is ordered, what is the Tribunal then to do if further findings are to be made about subjects with which the first Tribunal dealt? For it to take, as its starting point, findings that were made on that earlier review under a misapprehension of applicable legal principles may, indeed often would, skew the second factual inquiry by the Tribunal.
…
76. The considerations we have mentioned so far all relate to the task that the Tribunal was required to perform in its first review of the decision to refuse the respondent a protection visa. There is a further important consideration which bears upon the correctness of the direction which the Full Court gave about the constitution of the Tribunal. It relates to the task that the Tribunal will have to perform on a reference back.
77. When the Tribunal reviews a decision to refuse a protection visa it must decide whether the applicant is, at the time of the Tribunal's decision, a person to whom Australia owes protection obligations. So much follows from the fact that the Tribunal exercises afresh the powers of the original decision-maker. Seeking to "preserve" some findings of fact made at an earlier review assumes that no circumstance relevant to those facts has changed in the intervening time. It assumes, for example, that conditions in the country of origin have not changed and, in a case like the present, that the beliefs and intentions of the person who has sought protection have not changed in any material way.
…
79. For these reasons, the conclusion that it was desirable to preserve some findings of fact made in the course of the first review was wrong.”[103]
[103] Wang CLR at 540-542 per Gummow and Hayne JJ; HCA at paras.70-71, 73-74, 76-77 and 79 per Gummow and Hayne JJ.
In this case, it was simply not possible, permissible nor necessary for the Tribunal to deal with the Purported Decision. But the Tribunal did so, reproducing in the Tribunal Decision the Tribunal’s earlier, but subsequently quashed, account of the factual claims made by the applicant directly from the Purported Decision. Ultimately, the Tribunal relied upon a combination of that factual material from the Purported Decision, and material otherwise before the Tribunal, to assist it to arrive at conclusions with respect to the applicant’s credibility in relation to both the:
a)reliability of the “dob-in” materials; and
b)alleged illogicality or inconsistency of the applicant’s claims to be a member of the Ahmadi faith in Pakistan.[104]
[104] See paras. 35, 43 and 45 above.
Furthermore, by reproducing in the Tribunal Decision the Tribunal’s earlier, but subsequently quashed, account of the factual claims made by the applicant directly from the Purported Decision, it is not possible to safely conclude that the earlier account played no part in, or was disentangled from, the ultimate findings in the Tribunal Decision.[105] That is particularly so where it is apparent that the Tribunal has:
a)not appreciated that the Purported Decision was quashed, not just “set aside”;
b)treated and referred to the Purported Decision as a “decision”, when it was, by reason of the writ of certiorari, not a decision at all or ever.
[105] Wang CLR at 541-542 per Gummow and Hayne JJ; HCA at para.74 per Gummow and Hayne JJ.
What the writ of certiorari in the October 2008 Order did was to quash the Purported Decision. Consequently, the Purported Decision was of no force or effect at all. It was therefore not possible for the Tribunal to read it, refer to it, or rely upon it. In doing so it relied upon irrelevant material, and committed jurisdictional error. Moreover, in doing so, it did not comply with the writ of mandamus directing the Tribunal to determine the matter according to law. Although in form it conducted a review as required by s.425 of the Migration Act, it did not conduct that review according to law because it referred to and relied upon the Purported Decision as if it had some force and effect at law, when it had none as a consequence of the writ of certiorari in the October 2008 Order.[106]
[106] SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1; [2008] FCAFC 138 which was relied upon by the respondents does not assist as it concerned the issue of whether a second hearing was required, and not the effect of reliance on a quashed “decision”.
A Tribunal’s decision upon a review is to be made on the basis of the facts in that review, not some other or earlier review.[107]A review conducted in the ordinary way, which is what the Tribunal ought to have done here, would never include, or preserve,[108] all or part of an earlier statement of reasons, here the Purported Decision, by the Tribunal because, ordinarily, there would be no earlier statement of reasons. Moreover, where the statement of reasons, here the Purported Decision, has been quashed by certiorari, there is, at law, nothing for the Tribunal to read, refer to or rely upon.
[107] Wang CLR at 525 per Gleeson CJ; HCA at para.16 per Gleeson CJ.
[108] Wang CLR at 542 per Gummow and Hayne JJ; HCA at para.79 per Gummow and Hayne JJ.
For those reasons, the Tribunal committed jurisdictional error by relying upon irrelevant material.
The observation in the Tribunal Decision that this Court “set aside” the Purported Decision is wrong: the Purported Decision was quashed. Further, the observation in the Tribunal Decision that the Purported Decision “apparently failed to have regard to … evidence” is both wrong and inappropriate. There was an actual failure to have regard to the relevant evidence. To suggest otherwise, as the Tribunal Decision does in the above extract, is to disregard entirely the writ of certiorari issued by this Court in the October 2008 Order. In issuing that writ this Court was exercising the judicial power of the Commonwealth. That is because:
“Judicial review is an exercise of judicial power. As such, it is an exercise directed to the making of final and binding decisions as to legal rights and duties of the parties to the review proceedings.”[109]
[109] Bhardwaj CLR at 617 per Gaudron and Gummow JJ; HCA at para.57 per Gaudron and Gummow JJ.
This Court when exercising a power of judicial review of migration decisions exercises, by statutory authority, the same jurisdiction as the original jurisdiction of the High Court.[110] In the face of that statutory authority to exercise powers of judicial review, and the exercise of those powers by way of a writ of certiorari, it is no part of the proper role of the Tribunal to describe the exercise of those powers in that way in this case as a reference to an apparent failure. There was an actual failure, which is why the Court issued the October 2008 Order, notably with the Minister’s consent.
[110] Migration Act, s.476(1).
The referral to and reliance upon the Purported Decision by the Tribunal, in the context of the “apparently failed” remark, reinforces the Court’s view that the Tribunal did not treat the Purported Decision as having no force or effect, but rather as an actual decision of the Tribunal which it could refer to and rely upon, and hence committed jurisdictional error by relying on irrelevant immaterial.
Having regard to the findings made above, it is strictly unnecessary to consider whether or not the Tribunal was required to conduct a hearing de novo. Certainly what the writ of mandamus commanded the Tribunal to do was to start again, and not to rely upon the Purported Decision. Because it relied upon the Purported Decision, the Tribunal committed jurisdictional error, for the reasons set out above. It is therefore unnecessary to consider whether or not a de novo hearing was required in this case. It is however worth observing that in the absence of rules concerning the use of evidence adduced before an earlier Tribunal, a de novo hearing would involve the exercise of the jurisdiction afresh by the Tribunal, that is, the Tribunal must start again, witnesses must be called and the applicant must make out the applicant’s case. The Tribunal must then exercise afresh its powers to review the Delegate’s Decision.[111] In this case, that did not occur because the Tribunal Decision was infected by impermissible reliance upon the Purported Decision.
[111] Caladine at 124 per Dawson J; Totev FCR at 197 per Emmett J; FCAFC at paras.13-14 per Emmett J.
For all of the above reasons the Tribunal Decision was affected by jurisdictional error, and prerogative relief must be ordered.
Grounds 1.2, 1.3 and 1.4
Because of the conclusion reached with respect to ground 1.1, it is not necessary for the Court to consider grounds 1.2, 1.3 and 1.4.
Conclusion and orders
For the reasons set out above, the Court has concluded that the Tribunal Decision is affected by a jurisdictional error, namely reliance on irrelevant materials in the form of the Purported Decision.
There will therefore be orders upholding the application and granting prerogative relief.
The Court will hear the parties as to costs.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S. Gough
Date: 23 April 2010
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