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WZAUD v Minister for Immigration

WZAUD v Minister for Immigration

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Case Copied 27 September 2019 76 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

WZAUD & ORS v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2750

Catchwords:
MIGRATION – Judicial review – decision of former Refugee review tribunal to affirm decision of delegate not to grant Protection (Class XA) visa – whether jurisdictional error

Legislation:

Migration Act 1958 (Cth), Pt.7, Div.4, ss.3, 36, 42, 65, 422B, 424A, 474, 476,

477

Federal Circuit Court Rules 2001 (Cth), rr.1.03, 15.04
Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42, 64, 75
Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 2750
Decision Date: 27 September 2019

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision by the former Refugee Review Tribunal (RRT) to affirm a delegate's refusal to grant the applicant a Protection (Class XA) visa. The applicant sought to challenge the RRT's decision on the grounds of jurisdictional error.

The central legal issue before the Court was whether the RRT had committed jurisdictional error in its assessment of the applicant's claims for protection. Specifically, the Court was required to determine if certain findings made by the RRT, or the manner in which they were reached, constituted an error of law that would invalidate the decision. A secondary issue arose regarding the applicant's request to provide oral evidence at the judicial review hearing.

The Court reasoned that making findings or drawing inferences in the absence of evidence constitutes an error of law, but a mere wrong finding of fact does not. The Court examined specific paragraphs of the RRT decision, finding that certain statements were not findings of fact but rather references to the Tribunal's inquiries and the applicant's responses. The Court concluded that the RRT's finding that the application for protection was likely made due to the exhaustion of other visa options, rather than a genuine fear of persecution, was a determination within the Tribunal's remit and did not involve an error of logic. The Court also declined to grant leave for the applicant to provide oral evidence, noting that the Registrar's Orders, made by consent, required evidence to be presented by affidavit, and that fresh evidence is generally not admissible in judicial review proceedings unless relevant to the grounds of review.

The Court found no jurisdictional error in the RRT's decision and therefore dismissed the application for judicial review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Reference was also made to r.15.04 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”):Court may call evidence(1) The Court may of its own motion call any person as a witness in proceedings and give directions as to examination and cross-examination. Evidence in this Court may thus be led by way of affidavit or orally, however, the issues the Court raised with allowing the applicant to provide oral evidence was that, at the very least, the Minister had not been placed on notice of this. The applicants’ lawyer submitted that there is no requirement under the FCCA Act or the FCC Rules that consent be obtained for a party to give oral evidence or notice be given to an opposing party. What is required however is that the Court operate in a manner that facilitates the proper administration of justice: FCCA Act, ss.3, 42; FCC Rules, r.1.03. The Court makes detailed programming orders in migration matters to facilitate this process. The Court makes two observations as to why it did not consider it proper to grant leave for the applicant to provide oral evidence at the hearing (though it re-iterates he was given an opportunity to file affidavit evidence if he wished). The first is by reference to order 2 of the Registrar’s Orders which was as follows:Other than the Court Book, all evidence relied upon by the parties must be presented by way of affidavit… The Registrar’s Orders were, significantly, made by consent. The applicants’ representative stated that s.64 of the FCCA Act was not conditional or dependent on the Registrar’s Orders, but this overlooks that order 2 of the Registrar’s Orders was a direction that pursuant to s.64(2)(b) of the FCCA Act that any evidence wished to be relied upon was to be given by affidavit and not orally without notice. In SZNOZ v Minister for Immigration & Anor [2009] FMCA 943 (“SZNOZ”) the Court considered if leave ought be granted for an applicant to provide oral evidence at the hearing of a judicial review application in circumstances where an applicant had failed to provide evidence in accord with the Court’s orders. While in SZNOZ it was found there would be no utility in granting leave to adduce oral evidence, at [13] per Emmett FM the Court stated in any event the Court would decline leave as the applicant had been on notice of the requirement to file any evidence by way of affidavit before a certain date. The second observation is the question of the relevance of oral evidence in judicial review proceedings where the Court is generally not permitted to admit fresh evidence: MZXLD v Minister for Immigration & Citizenship [2007] FCA 1912 at [10] per Gordon J. Nonetheless, in Chandra v Webber [2010] FCA 705; (2010) 187 FLR 31; (2010) 270 ALR 393 at [40] per Bromberg J the Federal Court accepted that the touchstone of the admissibility of evidence on an application for judicial review will depend upon the relevance of the evidence to the ground of review and the circumstances of the case. To this effect the applicants’ lawyer stated that the applicant’s evidence would go toward establishing that there was no basis for particular findings of fact, which can constitute jurisdictional error.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In Minister for Immigration & Multicultural Affairs v Al-Miahi[2001] FCA 744 at [34] per Sundberg, Emmett and Finkelstein JJ the Federal Court observed:…in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, there is no error of law simply in making a wrong finding of fact. … Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place…. The Court was referred to CB 225-226 at [44]-[45] of the Tribunal Decision and the findings allegedly there made. Those findings were alleged to have been a conclusion that because there was a delay and the second applicant’s student visa was cancelled this means the claims for protection were concocted (at CB 225 at [44]) and that because the applicant had a police certificate he was not the subject of persecution (at CB 225-226 at [45]). These were not findings and therefore cannot have been said to have been illogical or not based on probative evidence. Both paragraphs were found under the heading “Evidence provided at Tribunal hearing” and simply refer to the Tribunal asking or putting certain matters or questions to the applicant and recording his response. There is nothing that indicates error at CB 225-226 at [44]-[45] of the Tribunal Decision, rather the Tribunal is undertaking its statutory task. At CB 239 at [90] the Tribunal stated:Having regard to all the evidence, the Tribunal finds that it is rather more than less likely that the reason for the applicant’s application at the time it was made is because the applicant had exhausted other visa options when he was no longer able to continue his studies. The Tribunal had put to the applicant for comment (at CB 225 at [44]) that it was concerned that the application was made five years after he arrived in Australia and only after both the applicant’s and the second applicant’s student visas were cancelled, and that this may indicate there is not a genuine fear of persecution. The applicant responded that the delay was because he kept telling himself things would get better and he was uncomfortable talking about the sexual assault. The Tribunal was required to weigh the applicant’s response with the material before it and it did so to come to the conclusion at CB 239 at[90] that it was more likely than not the applicant applied for the Protection Visa for the reason claimed. There was no error in the logic of this finding, it was ultimately a matter for the Tribunal to determine. The Court raised some issue with the first portion of CB 236-237 at [84] of the Tribunal Decision which is as follows:In respect of the applicant’s claim that his cousin M was an MDC youth chairman in Ruwangwe, the tribunal is not satisfied this was in fact the case, based on country information that found no reports on a person named M who was a MDC youth chairman in Ruwangwe between 2006 and 2008. Based on the general finding the Tribunal made in respect of the unreliability of the applicant’s evidence, the Tribunal is not satisfied that the applicant was truthful in his claim about his cousin or his claimed support for him. In respect of the applicant’s claim that he and his cousin M would promote the MDC in various villages, the Tribunal found the applicant’s account of this appeared to be rehearsed and insincere. On the evidence of the applicants, it is not satisfied that the first named applicant was an active member of the MDC.(Identifiers omitted)