FEDERAL COURT OF AUSTRALIA

Mohamed v Minister for Immigration and Multicultural Affairs

[2001] FCA 914

NAGOOR ADUMAI PASHAL MOHAMED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 918 OF 2000

NORTH J

1 JUNE 2001

MELBOURNE

THE COURT ORDERS THAT:

1.      Leave to amend the application to include claims under s 476(1)(b), (c) and (e) of the Migration Act 1958 (Cth) is refused.

2.      The applicant’s claim is dismissed.

3.      The applicant pay the respondent’s costs of and incidental to the application save as to the costs of the hearing on 1 June 2001.

4.      There be no order as to costs of the hearing on 1 June 2001.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     Before the court is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 6 October 2000.  The Tribunal affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, to refuse a protection visa to the applicant.

2                     The applicant was born on 2 July 1961.  He is a Sri Lankan National, Tamil by race and Muslim by religion.  He arrived in Australia on 20 July 1996.  The applicant claimed a fear of persecution for reasons of political opinion, imputed political opinion, nationality and religion.  The claims on the material before the Tribunal were set out by the Tribunal under the heading “Claims and Evidence”.  It is unnecessary to repeat those matters, except for one passage which describes the central incident on which the applicant relied and which is relevant to part of the argument to be considered later.  That passage is:

“The Applicant signed a statement of claims on 24 June 1997.  Another name had been used on this statement but it was corrected with liquid paper and the Applicant’s name substituted.  This statement related that the Applicant had undertaken courses in motor mechanics and a hotel course.  He also ran a butcher’s business.  In this latter capacity, he had to travel to remote locations in order to buy cattle.  On one occasion he and a worker were captured by the LTTE and taken into the forest.  While he was detained there the LTTE used his lorry.  He had refused to accompany them and so they had beaten him.  The LTTE confiscated eight of the fifteen cattle he had on the truck.  When he was released he took the lorry and went to Colombo.  One of the conditions of his release was that he was to leave the lorry at a certain petrol station and return later to pick it up.  After he took over his lorry again, he was stopped at a checkpoint.  In the search that followed the officers found weapons which had been hidden in the truck and he was arrested.

He was interrogated and tortured while he was in custody.  He was suspected of being associated with the LTTE and so was placed on remand.  His wife gave a large sum of money to a local parliamentarian to secure his release.  However, about three or four weeks after his release, the police came looking for him again.  People in the area also believed he had collaborated with the LTTE.  To make matters worse, one of those taken by the LTTE with him, was not released and his family began to harass the Applicant.”

The Tribunal Decision

3                     The reasoning of the Tribunal was recorded under the heading “Findings and Reasons”.  It was central to the applicant’s claim that he operated a butcher’s business.  As to this, the Tribunal said:

“Employment:  The Tribunal was not entirely convinced by the Applicant’s description of his role as the owner of two butcher’s shops.  While not inherently implausible, the documents he submitted point to him having been in the mechanics field and then undertaking training for a seaman’s role.  His passport, issued in 1993, names him as a steward.  While it is possible that his father financed his business venture because he was not able to get work in those other fields, he seemed remarkably uninformed about the cattle that he supposedly bought and the meat that he allegedly sold.  He also submitted invoices which supported his claim that he rented a stall and that he bought cattle.  These appeared genuine and they go to supporting his claim to have been involved in a butcher’s business.  In the absence of any serious contradictory evidence, for the purpose of this decision, the Tribunal accepts that he did run two butcher’s shops.”

4                     The Tribunal considered the claim that the applicant feared persecution as a result of his association or imputed association with the LTTE as follows:

“Association with the LTTE: There is nothing inherently implausible in the Applicant’s claim that he was stopped by the LTTE who confiscated his truck and left him and another person in the forest. However, there were many aspects in his telling of the story which do not inspire confidence that this is a genuine account. The fact that the first statement of claims originally had another person’s name attached to it suggests that its contents should be approached cautiously.

A second factor is his Muslim identity. The Tribunal accepts that the Applicant is a Muslim, which means that he is part of a minority group within Sri Lanka.  However, although of Tamil ethnicity, the Muslims do not identify with the Tamils or with the LTTE cause.  Indeed LTTE violence against Muslims and the forced re-location of many Muslims from the north and east have exacerbated the tensions between the two communities.  Advice from DFAT indicates that while at first it was though that the LTTE was fighting for the rights of minority Muslims as well as for Tamils, in recent years

‘… the LTTE view narrowed and became more chauvinistic.  Rather than seek to incorporate Muslims in a Tamil-speaking identity, the LTTE began trying to push Muslims out of Tamil-majority areas in the north and east.  These efforts accelerated after 1988-89 when certain Muslim spokespeople sought to assert a separate identity for the Muslim community and to claim their own representations in any political arrangements which might evolve to settle civil conflict in Sri Lanka.  Since that time, a series of major atrocities have been committed by the LTTE against Muslims.  For example, in 1990 the Muslim population of Jaffna (about 40,000 people) were ordered out of the peninsula by the LTTE under threat of death.  The past decade has also seen several major attacks and mass killings by the LTTE against Muslim villagers in the east of the island….  In August 1990 the LTTE slaughtered over 250 Muslim civilians – including attacks on Muslims at prayer in two mosques – in the central east of the island.’ (Country Information Report, CX40936, 11 October 1999)

There is a continuing stream of information which points to the alienation of Muslims, even though of the same ethnicity, from Tamils, particularly from any associated with the LTTE.

The Tribunal has taken into account the discrepancies between his first account and his later account of his detention by the LTTE and then by the authorities.  There are circumstances where flaws in evidence does not mean that a person does not have a genuine claim.  However, in this particular matter, where the Tribunal has a general doubt about the application, discrepancies carry greater significance.

In the first account, he was released by the LTTE who retained eight of his cattle.  In the second account he is released only on the payment of a large sum of money.  In the first account the LTTE release him on conditions and he has to leave his lorry at a particular service station in Colombo and disappear.  He stated that he returned later and picked up the truck again.  He was stopped by the army after he obeyed that instruction.  This was different from the account in the subsequent submissions.  The later accounts all concern him having his truck returned to him, being sent to find a large sum of money, with instructions to turn up at a Colombo petrol station.  However, he was detained at a check point before he got to Colombo.  The Tribunal finds this to be a significant difference.  These difference [sic] go to the very heart of his claim.  This is a great diference [sic] in having left his truck at a petrol station in Colombo for use by the LTTE (with the implication that they would use it for nefarious purposes) and his later claim that he was detained soon after the LTTE released him from the forest.  These are not small matters of detail.  They are central to his core claim that he was suspected by the government’s security apparatus of being in league with the LTTE.  If the story is unreliable, so too is that claim. 

The Tribunal also finds it implausible that had his vehicle been taken by the LTTE he would not have checked it as he regained control over it.  The LTTE are a violent group – he could not have been sure that an explosive had not been planted aboard the vehicle.  To be unaware that there were weapons aboard strains credibility and the Tribunal does not accept it.

The Tribunal does not accept that if the Applicant and an employee were detained by the LTTE and his lorry stolen that the authorities would immediately assume that he was in collusion with the LTTE.  This would be particularly so if he could indicate that he had been beaten badly by the LTTE.  It is true that the police and the army do not have a good reputation in their treatment of civilians.  However, a man who has been held in a forest for three days and has been beaten in an area which was known for Tiger activity would get a hearing.

The Tribunal finds it difficult to reconcile his claim that it was his great concern for his work colleague which kept him quiet with his evidence that he left Sri Lanka without finding out whether he was ever released.  He has no information about it to this day.  Such a failure to follow up on the fate of his colleague does not sit well with his alleged refusal to tell the army just what had happened to him out of concern for that person.  The Applicant has been in Australia for four years, time enough, and at a safe distance, to seek more information about him.

However, if the Tribunal is wrong and he was taken by the LTTE as he claimed and then detained by the army on suspicion of weapon-smuggling, then the question is raised as to whether any of this happened for a Convention-related reason and whether he would face persecution in the future for this reason or reasons.

The Applicant’s alleged apprehension by the LTTE was because he had something they wanted, a truck.  According to him they then confiscated some of his cattle and also wanted money.  While the LTTE’s motives in a general sense are political and it can be assumed that they used the truck and the cattle as part of their campaign for a Tamil state on the island, the Tribunal is not satisfied that they treated the Applicant in the way alleged for reasons of a political opinion imputed to him.  They wanted what he had and they took it.  While the definition of political could be applied if it is assumed that everything the LTTE does is political and that they operate on a ‘those who are not with us are against us’ principle, the Tribunal believes this would stretch the definition of political opinion well beyond its intended borders.  They did not stop him because they knew he was a Muslim, but because he had a truck.  They did not let him go because he was a Muslim but because, he alleged, they wanted his money.  If there was a political motive in this, the Tribunal finds it to be so secondary as to be irelevant [sic].

It is probable if the Applicant was taken by the LTTE in the manner he has alleged, that references were made to his Muslim identity.  The Tribunal does not find that this establishes that they harmed him for reasons of his religious identity.  Indeed the LTTE has a reputation of being as harsh against fellow Tamils as against others.  That is, they have the reputation for ill-treating people who fall into their hands.  Unfortunately, this would be the case whether the Applcaint [sic] was Muslim, Tamil or Sinhalese.

As indicated above, the Tribunal does not believe that the Applicant was detained at an army checkpoint, detained, tortured, placed on reporting conditions and then harassed to the point of needing to flee his country.  However, it has revisited the claims to consider where they would fit within the Convention if they were true.  While there clearly is no justification for anyone being ill-treated while in police or army custody, it cannot be said that either body is acting beyond its powers in detaining those who come under suspicion of trading in arms or otherwise assisting in violent guerilla activities.  The LTTE is internationally named as a terrorist organisation, an indictment agreed to by the Australian government.

If the Applicant was picked up, he had the opportunity, almost the responsibility, of telling the army where a group of LTTE people were.  As indicated above, the Tribunal has not accepted his claim that he was so concerned about the fate of his work colleague that he was constrained to say nothing.  It has noted his claim that the family of the man harassed him also.  Such a claim depends on accepting the core claim which the Tribunal does not.  However, if there was local harassment, then the Applicant had the usual local avenues to deal with this – a complaint to the police, use of a lawyer, conciliation with the family, and certianly [sic] a continued interest in the fate of the man which apparently he did not have.”

5                     Then the Tribunal dealt with the claims of official harassment of the applicant and his family as follows:

“Claims of official harassment of him and his family: The Tribunal has taken into account the letters submitted by the Applicant from family members which seek to support his claim that he was forced to go into hiding and that they have been harassed to the point of illness.  A letter of itself cannot establish the truth of a claim.  The Tribunal cannot establish whether the contents of a letter are genuine or whether a letter is written to establish a claim for residency in Australia.  Therefore such letters must be considered within the whole framework of the claims. 

The Tribunal has considered the family situation.  The Applicant’s father was a businessman and his shop is now run by one of his sons.  The Applicant has four brothers and sisters, most of them in business or in professional employment.  His father-in-law runs a hotel in Colombo.  While this certainly does not make them immune from government suspicion or even security harassment, the Applicant’s evidence was that they remained in Sri Lanka and they remained in employment and business.  He gave no evidence that the harassment, if there is any, has been at such a level that they have lost employment or had any charges laid against them.  The Tribunal notes the Applicant’s claim that his father’s death in February 1996 could be attributed to the distress at what had happened to his son.  The Applicant’s birth certificate indicates that his father was born in 1915 which would make him ninety one at the time of his death and had his first heart attack some seven years earlier.  The Tribunal finds this points more towards a death in the normal phase of time and for a natural and physical cause.  It does not confirm or deny the Applicant’s claim that it was distress over his son’s predicament which precipitated his death.

The Tribunal notes that the Applicant’s wife and daughter now reside with her relatives in India.  The Tribunal accepts that she suffers from a depressive illness and has sought treatment in India with its better medical facilities and specialties.  It is not satisfied that this residence in India is due to her having to flee from harassment.  It has noted the reference to an incident occurring in her home in the letter from a Dr. Rajagopal who stated that he had been treating the Applicant’s wife since 2 June 2000.  His diagnosis is that she was suffering from depression and he linked to it nervous shock.  The Tribunal accepts that she is a patient of the writer of the letter although it notes that he refers twice to her having ‘children’ rather than one child which is the Applicant’s evidence.  It could be expected that a psychiatric consultant would know this fact about his patient, given that personal circumstances count for much in psychiatric treatment.

Because the Tribunal is not satisfied that the Applicant is the target of army or police harassment it is not able to accept that the incident referred to is connected with this claim.  It is unable to make a finding as to what the incident actually was but it is satisfied that this is not a ground on which to accept the claim by the Applicant that he had to flee Sri Lanka for his own safety.”

Grounds of Review

Actual Bias

6                     The applicant first relied on s 476(1)(f) of the Migration Act 1958 (Cth) which provides:

“(1) Subject to subsection  (2), an application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

…

(f) that the decision was induced or affected by fraud or by actual bias…”

7                     Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 explained at par 72:

“The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.  Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.”

8                     In Sun v Minister for Immigration and Multicultural Affairs [1997] FCA 1488; (1997) 81 FCR 71 at 134 I said:

“Where actual bias is not expressly voiced, it may be proved by inference from the facts and circumstances.”

(See also Burchett J at 126).  In the present case, the applicant argued that the court should infer actual bias from certain passages in the decision itself.  In other words, this was not a case in which actual bias was evidenced by the conduct of the hearing before the Tribunal. 

9                     There were seven passages relied upon by the applicant as demonstrating actual bias.  I will deal with each of these in turn. 

The First Passage

10                  The Tribunal commenced the decision with the following sentence:

“The Applicant, Mr Adumai Pashal Mohamed Nagoor, who claims to be a 39 year old citizen of Sri Lanka, arrived in Australia on 23 July 1996.”

11                  The applicant argued that the use of the expression “claims” by the Tribunal demonstrated a disposition by the Tribunal to question the honesty of the applicant. 

12                  In the circumstances of this case, such an inference cannot be sustained.  In the sentences immediately following the opening sentence, the Tribunal said:

“As will be explained below, he arrived on a passport in a name which was not his own.  When he made his application for a protection visa it was in what he has claimed to be his real name.”

13                  The Tribunal returned to this subject in the “Findings and Reasons” part of the decision, under the heading “Passports”.  These passages reveal that the reference to the applicant “claiming” to be a 39 year old citizen of Sri Lanka, was a reference to the fact that the applicant had arrived in Australia on a passport which gave him a different identity from that upon which he relied for the purpose of his protection visa application.  The Tribunal described a factual circumstance concerning the application.  There is no implication in the reference to any underlying attitude of doubt by the Tribunal on this issue.

The Second Passage

14                  In the passage extracted in par 2 of these reasons, the Tribunal said:

“The Applicant signed a statement of claims on 24 June 1997.  Another name had been used on this statement but it was corrected with liquid paper and the Applicant’s name substituted.”

15                  The applicant argued that this treatment suggested that the Tribunal regarded the applicant as dishonest.  Again, no inference can be drawn from these sentences that the Tribunal had a fixed view against the applicant’s case.  The sentences simply set out the facts as found by the Tribunal on the question.

The Third Passage

16                  In outlining the background facts, the Tribunal referred to a letter from the applicant’s wife.  The Tribunal said:

“A letter purportedly from his wife and dated 4 September 1996 contained information about the family’s situation.”

The applicant argued that the use of the word “purportedly” again demonstrated the persistent theme of doubt and disbelief of the Tribunal in respect of the applicant’s case. 

17                  The context in which the description of the letter was used makes it clear that the Tribunal was explaining that the letter appeared to come from the applicant’s wife.  This was a proper description of the letter for the purpose of laying the groundwork for the later section of the decision which contained the assessment by the Tribunal of this evidence.  The matter is best illustrated by reference to some receipts for the rent of a stall for the applicant’s butcher’s business.  The applicant submitted these receipts as part of his case that he conducted such a business.  In the paragraph next following, the reference to the letter from the applicant’s wife, the Tribunal described the documents as:

“These purported to be receipts for the rent of a stall.”

18                  Although the Tribunal described the receipts as “purported” in this section of the reasons, when it came to consider the value of the receipts as evidence, it found that they appeared to be genuine.  In other words, the particular evidence initially described as “purported” was held to be evidence in favour of the applicant’s case.  Thus, the reference to “purported” in relation to the wife’s letter cannot be seen in the context as exposing an approach of a doubt about the validity of the evidence.

The Fourth Passage

19                  In the passage from the Tribunal’s decision set out at par 4 of these reasons, the Tribunal said:

“However, there were many aspects in his telling of the story which do not inspire confidence that this is a genuine account.  The fact that the first statement of claims originally had another person’s name attached to it suggests that its contents should be approached cautiously.”

20                  In the end, as I understand it, the applicant’s complaint about this passage was that if the Tribunal had such doubts, it should have put them to the applicant and recorded the fact that it had put such doubts to the applicant.

21                  The transcript of the proceedings before the Tribunal was not placed before the Court.  There was no evidence whether such doubts had been expressed by the Tribunal to the applicant.  Despite an invitation from the Court to adjourn the matter in order that the applicant might seek to obtain such evidence, no adjournment was sought.  Thus, the submission was that the failure to record whether the Tribunal’s doubts were put to the applicant was a fact from which an inference of actual bias could be drawn.  The mere statement of the argument demonstrates its unsustainability. 

22                  The first sentence of this passage was an introduction to a series of reasons which supported the conclusion that there was doubt about the applicant’s alleged encounter with the LTTE.  The applicant did not attack the reasons set out by the Tribunal in the paragraphs following the introductory sentence.  Absent such an attack, it is difficult to see how the inference of actual bias could be made out.

The Fifth Passage

23                  One of the reasons that the Tribunal found that the applicant’s telling of his story of the incident with the LTTE did not inspire confidence was its assessment of the significance of discrepancies between his first account and later account of the incident.  In this context the Tribunal said at p 14 of its decision:

“However, in this particular matter, where the Tribunal has a general doubt about the application, discrepancies carry greater significance.”

24                  The applicant argued that it was not clear why discrepancies should carry greater significance in these circumstances unless the Tribunal had already prejudged the applicant’s case.  For the Tribunal to have admitted to a general doubt about the applicant was, in the applicant’s submission, an indication that it had formed a view against the applicant which the applicant had to displace in order to succeed in the application.

25                  The Tribunal explained carefully the reasons why it held general doubts about the applicant’s case.  Again, the applicant did not challenge the findings on which the general doubts were based.  Once it is accepted that the Tribunal was justified in having general doubts, no criticism can be made of it taking those doubts into account when assessing the varying versions of the central incident.  This process of reasoning does not ground any inference of actual bias.

The Sixth Passage

26                  In the passage set out at par 5 of these reasons, the Tribunal said:

“A letter of itself cannot establish the truth of a claim.  The Tribunal cannot establish whether the contents of a letter are genuine or whether a letter is written to establish a claim for residency in Australia.  Therefore such letters must be considered within the whole framework of the claims.”

27                  The applicant contended that when the Tribunal said that it would assess the letters within the “whole framework of the claims”, it referred to a process of assessment driven by general doubt about the applicant’s case.  Again, this allegation of actual bias could only be sustained if the applicant attacked the findings which gave rise to the express doubt by the Tribunal.  The applicant did not do so.  Additionally, the framework to which the applicant referred included the entire passage from the Tribunal’s decision set out at par 5 of these reasons.  That passage included an assessment of the applicant’s family situation.  In particular, the Tribunal found that there was no evidence of harassment of the large number of other family members of the applicant who remained in Sri Lanka.  The passage complained of provides no basis for an inference of actual bias.

The Seventh Passage

28                  The final two sentences of the Tribunal’s consideration of the claims of official harassment of the applicant and his family were as follows:

“Because the Tribunal is not satisfied that the Applicant is a target of army or police harassment it is not able to accept that the incident referred to is connected with this claim.  It is unable to make a finding as to what the incident actually was but it is satisfied that this is not a ground on which to accept the claim by the Applicant that he had to flee Sri Lanka for his own safety.”

29                  The applicant’s argument was, as I understood it, that the Tribunal in this passage was governed by the overall doubt it had about the applicant’s case.  Although it was unable to find what the incident referred to actually was, it was, nonetheless, satisfied that the event was not a ground upon which to accept the applicant’s claim that he had fled Sri Lanka for his own safety. 

30                  This approach to the passage fails to give sufficient attention to the first sentence.  The first sentence provided the reason for the conclusion that followed.  Again, in the absence of any attack on the reasons which led the Tribunal to find that the LTTE incident did not occur, it is difficult to see that any inference of actual bias could be drawn from this passage.

Conclusion on Actual Bias

31                  For the reasons explained, none of the individual passages support the inference that the Tribunal decision was actuated by actual bias.  Neither do the passages taken together support such an inference.  In assessing the reasons of the Tribunal, it is necessary to bear in mind the guidance contained in Collector of Customs v Pozzolanic Enterprises Pty Ltd & Anor [1993] FCA 456; (1993) 43 FCR 280 at 287:

“The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error…” 

See also Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272.

Failure to Invite Applicant to Comment

32                  In the course of argument, Mr Sanger, who appeared as counsel for the applicant, sought to argue that the Tribunal had acted in breach of s 424A(1)(c) by failing to invite the applicant to comment on information which the Tribunal considered would be a reason to affirm the decision under review.  The information referred to in the argument was information supplied by the applicant and appeared to fall within the exception contained in s 424A(3)(b).  In the result, the applicant did not pursue the argument that there was a breach of s 424A.  Rather, he contended that the failure to record that the applicant had been asked to comment on certain adverse information demonstrated actual bias.  This argument has been rejected earlier in these reasons.

Amended Grounds of Review

33                  The amended application for review and the contentions filed by the applicant sought to raise an argument under s 476(1)(a) alleging failure by the Tribunal to comply with the provisions of s 430.  On the morning on which the hearing commenced, the High Court handed down its decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30.  In consequence of that decision, the applicant did not pursue the grounds based on s 430.  However, in reliance upon Yusuf, the applicant sought leave to amend his application in order to rely on s 476(1)(b), (c) and (e) of the Act. 

34                  Subsections 476(1)(b), (c) and (e) provide grounds of review as follows:

“(b)     that the person who purported to make the decision did not have jurisdiction to make the decision;

(c)     that the decision was not authorised by this Act or the regulations;

…

(e)     that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision…”

35                  The applicant contended that the failure to make a relevant finding of fact or to take account of a relevant consideration is an error of law for the purposes of s 476(1)(e), the failure to take account of relevant material is a jurisdictional error under s 476(1)(b) and that the decision was not authorised by the Act or regulations, thereby reviewable under s 476(1)(c).

36                  The applicant relied upon the following passages in the judgment of McHugh, Gummow and Hayne JJ in Yusuf.  Their Honours said at par [78]

“That is not to say that the Federal Court has no jurisdiction to deal with cases in which it is alleged that the Tribunal failed to make some relevant finding of fact.  For the reasons stated earlier, a complaint of that kind will often amount to a complaint of error of law or of failure to take account of relevant considerations.  It is necessary, therefore, to consider some further aspects of s 476, especially s 476(1)(b), (c) and (e) and s 476(3)(d) and (e).  Counsel for Ms Yusuf, in the alternative to par (a) upon which the Full Court had based its decision, relied upon one or more of pars (b), (c) and (e) of s 476(1).”

37                  Their Honours continued at pars [81-5]:

“The Minister submitted that the use of overarching concepts, such as “jurisdictional error”, is inconsistent with a statutory scheme which enumerates both specific grounds of review that are available in the Federal Court, and others that are not.  It was therefore submitted, for example, that par (b) of s 476(1), which speaks of “the person” who purported to make the decision not having “jurisdiction” to make the decision, extended only to matters in which the Tribunal, or the person who constituted the Tribunal, was not properly authorised to make the decision (because, for example, the Tribunal was not constituted in a proper way).

            It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision‑maker making such an error.  As was said in Craig v South Australia [(1995) 184 CLR 163 at 179], if an administrative tribunal (like the Tribunal)

‘falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.’

“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive [cf Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52; 176 ALR 219].  Those different kinds of error may well overlap.  The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision‑maker both asking the wrong question and ignoring relevant material.  What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision‑maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision‑maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.  Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law [Craig (1995) 184 CLR 163 at 179].

            No doubt full weight must be given to s 476(3) and the limitations which it prescribes in the construction of improper exercise of power in par (d) of s 476(1).  Equally, however, it is important to recognise that these limitations, unlike those prescribed by s 476(2), are limitations on only one of the grounds specified in s 476(1).  All this being so, there is no reason to give either par (b) or par (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs.  In particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it “exceeds its authority or powers”.  If that is so, the person who purported to make the decision “did not have jurisdiction” to make the decision he or she made, and the decision “was not authorised” by the Act.

            Moreover, in such a case, the decision may well, within the meaning of par (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.  That it cannot be said to be an improper exercise of power (as that expression is to be understood in s 476(1)(d), read in light of s 476(3)) is not to the point.  No doubt it must be recognised that the ground stated in par (e) is not described simply as making an error of law.  The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.  That qualification emphasises that factual error by the Tribunal will not found review.  Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which par (e) deals.  That having been said, the addition of the qualification to par (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language.  If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found.  If that is so, the ground in s 476(1)(e) is made out.

            Paragraphs (b), (c) and (e) would thus each be engaged in such a case and the Federal Court would have jurisdiction under Pt 8 of the Act to review the Tribunal's decision.  This Court would also have original jurisdiction in the matter and could grant relief under s 75(v).”

38                  These arguments were directed to the following passage in the Tribunal’s reasons:

“Because the Tribunal is not satisfied that the Applicant is the target of army or police harassment it is not able to accept that the incident referred to is connected with this claim.  It is unable to make a finding as to what the incident actually was but it is satisfied that this is not a ground on which to accept the claim by the Applicant that he had to flee Sri Lanka for his own safety.”

39                  The “incident” referred to by the Tribunal seems to be an incident recorded in a letter dated 4 September 1996 from the applicant’s wife as follows:

“Pashal, after you left the Army came to our house three times.  Like they came while you were in Sri Lanka, 10-15 army personnel come [sic] in Jeep and truck, then surrounded the house.  After that they came into the house and threatened me to produce you.  Now my body starts to shiver whenever I see any army personnel.  Pashal, If I tell them that I don’t know your whereabouts, they scream at me and accuse me of lying and they say they will teach you a good lesson if they catch you.  Only God knows what would happen to you if they catch you while they are that angry with you.  Whatever happens, please don’t come to Sri Lanka, if you do, they would catch you at the airport.  So don’t even think to come to Sri Lanka.”

40                  The “incident” was also referred to in a letter dated 22 May 2000 from the applicant’s father-in-law and in a letter dated 24 June 2000 from Dr Rajagopal, a psychiatrist treating the applicant’s wife in India. 

41                  The Tribunal referred to these three letters in the section of the decision headed “Claims and Evidence” and considered the evidence contained in the letters under the heading “Claims Of Official Harassment Of Him And His Family” which has been extracted at par 5 of these reasons.  It is therefore clear that the Tribunal did not ignore or fail to have regard to the evidence as to the incident recorded in these letters.  It analysed the evidence and came to a conclusion adverse to the applicant.  The essence of the applicant’s complaint is a challenge to the Tribunal’s findings on the merits.  Such an attack cannot succeed under s 476.

42                  Mr Sanger contended that the Tribunal failed to make a finding whether the incident did or did not occur.  He contended that the Tribunal was bound to make such a finding.  The passage discloses that the Tribunal dealt with the significance of the incident in relation to the applicant’s claim.  In order to do this it did not have to decide, on the view it took, precisely what occurred in the incident.  This was because it found that the alleged Convention reason did not exist.  This conclusion was based on the extensive reasoning concerning the rejection of the encounter of the applicant with the LTTE. 

43                  The Minister also argued that the incident in question was not a relevant fact for the purposes of the doctrines relied upon by the applicant.  In light of my conclusions, it is not necessary to determine that issue.

44                  As the claims articulated in the amendment sought by the applicant are bound to fail, the amendment is refused.  In the result, the application is dismissed.

Associate:

Dated:              16 July 2001