FEDERAL COURT OF AUSTRALIA

VBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 205

Applicant VBAC of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 74 of 2002

RYAN J

17 MARCH 2003

MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicants pay the respondent’s costs, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1                     This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a refusal by a delegate of the respondent Minister to grant the applicants protection visas. I note that a previous decision of the Tribunal in this matter was set aside by a Full Court of this Court on 17 May 2001 and remitted to the Tribunal for determination according to law. The first and second applicants are husband and wife and the third applicant is their 7 year-old daughter, who was born in Australia in 1995. The first applicant (“the applicant”) is now aged 32 and was born in Madige in Sri Lanka.

2                     The applicant claims to have a well-founded fear of persecution from either the Tamil Tiger movement (“the LTTE”) or the army if he were returned to Sri Lanka. In essence, he claims that the persecution he fears would result from his having been involved in actions in Kattankudy to defend villages from LTTE incursion in August 1989, which actions resulted in the death of a number of LTTE leaders, although the applicant was not directly responsible for the death of any LTTE member. He also claims to have suffered one harassing visit from armed LTTE members in 1995 when living in Colombo, Sri Lanka. That visit, the applicant contends, flowed from his fund raising activities at his mosque in Colombo. The applicant claims, in addition, that the army in Sri Lanka may have gained the impression that LTTE members had visited him in Colombo because he was a LTTE member, thus putting him at risk of persecution from the army by reason of his imputed membership of a violent political organisation.

3                     The Tribunal in its reasons recited the following information given by the applicant in his protection visa application:

‘Why did you leave that country?’

“I left Sri Lanka because I was threatened by the LTTE Tamil Tigers, for being an active member in a social group known as the JIHADH[this is the applicant's spelling of this word and the Tribunal will use this spelling throughout]. I feared for my life and my wife's life and for the life of my unborn child, as my wife was at that time three months pregnant. As I was living in Colombo although I am from Kattankudy (eastern Sri Lanka) three members from the LTTE came to my place on the 26th of January 1995 and harassed me and my wife if I didn't give up my active role in JIHADH. Further more they told us if we complained to the police about their visit or if we tried to identify them we wouldn't be living long. As our social group was powerless I didn't have any choice but to leave the country.”

‘What do You (sic) fear may happen to You (sic) if you go back to that country?’

“I fear if I go back our lives will be in danger since the government has no control over the LTTE terrorists, even in the government controlled areas ‑ I understand that even after I came to Australia they have tried their best to get my address in Australia so that they could harass me. As far as I am concerned my family is the most important asset to me and I can't afford to risk it's safety in any way as they have done nothing wrong and they don't have to live in fear for the rest of their fives. I am very positive that the government cannot offer me any security since I am just an ordinary citizen in their point of view. However the government of Sri Lanka will not give any priority for our security because at one stage our movement(JIHADH) took to arms and were defending the Muslim villages in the eastern part of Sri Lanka. So if we go back our lives will be in danger since there is nobody to protect us.”

‘Who do you think may harm/mistreat you if you go back?’

“The LTTE will mistreat/harm me because I have being actively involved in the JIHADH movement in the eastern part of Sri Lanka in order to protect the Muslim villages from the LTTE attacks. In order to protect the Muslims I have been involved in a few killings of some leading LTTE members. So I feel that they will take revenge from me since they have the vengeance against me. Since the government of Sri Lanka cannot provide protection even in the government controlled areas my life will be in danger, furthermore our group(JIAHDH) is powerless at the time being so that they cannot protect me from the LTTE Tamil Tigers.”

‘Why do you think they will harm/mistreat you if you go back?’

“I feel that the LTTE Tamil Tigers will mistreat/harm me because I have been a very active member, of the JIAHDH movement which operated successfully in the eastern part of Sri Lanka and we were protecting the Muslim villages and we were involved in a few killings of the LTTE members in order to protect our Muslim families. As I was involved in these operations and had killed the LTTE members they will definitely take revenge from me or my family since they still have the vengeance against me. If our movement (JIHADH) was powerful/operating I could get protection from them since it's powerless now. Our lives will be in danger if we go back as the Sri Lankan government would not protect us.’

‘Do you think the authorities of that country can and will protect you it you go back? If not, why not?’

“As I had a good job and a very good lifestyle before I came to Australia I always wanted to go back to Sri Lanka that was the reason why I didn't apply for refugee status as soon as I came to Australia thinking that the government would solve the ethnic problem but it seems like that this civil war is never going to stop according to the recent news footages, furthermore if I go back at this juncture My life will be in danger since the government cannot provide any protection even in the government controlled areas. As we see in the news the capital of Sri Lanka Colombo is still being attacked by the LTTE Tamil Tigers and the safety of the people cannot be guaranteed at any time.

The authorities of Sri Lanka are not in a position to provide me security, as we can see there have been attacks even in the government controlled areas by the LTTE. And the other reason why the government wouldn't protect me is because I have been involved in protecting the Muslim villages without the approval of the Sri Lankan government.”

4                     The Tribunal summarised as follows the further evidence given as part of the applicant’s case during the hearing:

‘At the hearing the applicant reiterated the above claims, provided some further clarification of some of them and in addition he claimed that he was raising money for Muslims in the East of Sri Lanka. He further claimed that on the evening of 26 January 1995 three people forced themselves into his house in Colombo with a revolver and told him to give up raising funds and giving them to the Muslims. He stated that these were LTTErs and that they found him in Colombo through LTTE intelligence. When asked how the money was raised he stated that it was done at the mosque. When the applicant was asked why he had not mentioned this claim before, he replied that this was the first chance he had had to speak about his claims.

The applicant also stated, in response to Tribunal questions, that he had taken one and a half years to apply for a Protection Visa (PV) because he thought the problems in Sri Lanka would be solved.

The applicant's wife also gave evidence that three people had come to their house in 1995 and they had spoken in Tamil to her husband and told him to stop collecting money. The applicant's wife stated that she herself speaks Sinhalese and was born in Colombo.

The Tribunal, pursuant to s.424A of the Act, asked the applicant to comment in writing on the discrepancies between his original claims and those he made at the hearing. On the question of his additional claim regarding fundraising for Muslims, he stated that this was not an additional claim. He stated that collections in support of the Muslims were taken at mosques in Colombo and it was not something he organised or operated at the mosque. He contributed and encouraged others to contribute because he had relatives living in the eastern province where the money was going. He stated that the LTTE gathered intelligence in the mosque and identified him from his connections with the Jihad in Kattankudy -- the latter is itself a new claim.

On the issue of his having killed LTTEers, the applicant reiterated what he had said at the hearing; that he participated physically in an attack but that he personally did not kill anyone but rejoiced in the success of the group's action.’

5                     The Tribunal summarised its findings as follows:

‘The applicant is … of Sinhalese ethnicity and Muslim faith. He travelled to Australia on a three month visitor visa issued in Colombo on 15 March 1995. The essence of his claims is that he fears persecution by the LTTE (Liberation Tigers of Tamil Eelam) because he was part of a movement called Jhihad in eastern Sri Lanka and because he collected money in Colombo to send to Muslims in the east …

… it is for both these issues that he fears a return to Sri Lanka.

Activities in the Jhihad.

The initial reading of the applicant's claims would have led to the conclusion that the applicant actually was responsible for killing members of the LTTE in August 1989. This was put to the applicant at the hearing and he distanced himself from the actual act of killing as this would have given rise to considerations under Article 1F of the Convention. The information he provided and the manner in which he described his activities in trying to "protect" the villagers under threat by the LTTE, apart from the fact that he was 15 at the time, was not convincing. Further he claimed that the members of this organisation called Jhihad were not armed and that the incident he described was the only incident he ever participated in.

Independent information about the Jhihad movement (CX29030) dated 6 April 1998 states inter alia:

The 'Jihad movement' […] does not exist in any concrete, organised form. From time to time calls for militancy by Muslim youth in the eastern province have been made, particularly after the massacres of Muslim communities by the Liberation Tigers of Tamil Eelam (LTTE), which took place between 1990 and 1993. … …

During the time of the Indian Peace Keeping Force (1987-1990) armed Muslims calling themselves 'Jihad' occasionally surfaced. Some SLMC youth began to talk about forming into an organisation, which would be militant, not ideological. The group never materialised. … …

Rumours of Muslim militancy have never been substantiated. Informed contacts routinely monitor security in the east, and told us they had looked into the claims made in [a] Ddivayina' article and found no evidence of any activity by an organisation calling itself the 'Islam Peoples Revolutionary Liberation Organisation'. They said there is no evidence of any fresh activity amongst the Muslim community of a militant nature.

… …

At the same time [1992], the SLMC leader announced that Muslims were waiting for the go-ahead from the Jamiathul Ulama, the highest body of Muslim theologians in the country, to declare Jihad on the LTTE. It never did so. In response to the SLMC leader, the leader of another Muslim party, the Sri Lanka Muslim Party (SLMP) said there was no such organisation called the 'Jihad' in the east. He said that if a 'Jihad' took place, it would be reactive, not an organised affair, nor would it have a political objective. He did not think the Mosque Federations would support a 'Jihad' in Sri Lanka. By 1993, the LTTE stopped its wholesale massacres of Muslim villagers, but continued to murder individual Muslims in a random way in the east until late 1993. Since then, these incidents have ceased.

… …

There are a number of Muslim groups organising in the eastern province which have religious overtones. Their objective is to make the Sri Lankan Muslim community more conservative; to "purify" Sri Lankan Muslims. We understand that these groups receive funds from Arab countries, and there are various moves to develop to strengthen the different branches of Islam amongst the Sri Lankan Muslims. According to our Muslim contacts there is no involvement of mosques in any Muslim militancy.

This information indicates that the LTTE killings of Muslims occurred in 1992/3 and that the Jihad was not an organised movement but a group which came together to respond to some events. It did not exist at the time of the above report. The Tribunal accepts that the applicant may have participated as a youth in a spontaneous reaction to some event against the LTTE but does not accept that there is any interest in him as claimed, not only did he leave the east of Sri Lanka soon after the incident but he has not taken part in any activity which could be remotely construed as anti LTTE since that time. More than ten years have elapsed. The Tribunal thus finds that there is not a real chance that the applicant would be persecuted for taking part in one anti LTTE activity in his youth, an activity where the importance of his role was at best peripheral. The Tribunal notes that there is no discernible organised group of the kind to which the applicant claims to have belonged.’

6                     On the issue of the applicant’s involvement in fundraising activities the Tribunal found:

‘The applicant's claims regarding these activities were made only at the Tribunal hearing. The Tribunal notes that the applicant, in response to the s.424A letter from the Tribunal, stated that this was not a new claim. There is no evidence on any file in the Tribunal's possession that this claim was ever made, in any event, initially it appeared that the applicant was trying to make the point that the LTTE was concerned with his fund raising activities and went to stand over him at his house on 26 January 1995, yet the applicant has described his fundraising activities as innocuous and his role in it as peripheral, only encouraging people to donate. The applicant has then further claimed that his connection with the Jhihad was something which arose out of his fundraising activities. The applicant has not advanced any arguments as to the reason the LTTE would target him for encouraging people to donate money, in a mosque, which would appear to be a normal collection for charity, practised in a place of worship not only by Muslims but by many other religions. The late presentation of these claims, the contradictions therein and the implausibility of the motivation for his being sought out, lead the Tribunal to consider that these claims are an embellishment and the Tribunal does not accept them.’

7                     The Tribunal expressed its final conclusions in these terms:

‘Given the above discussion the Tribunal finds that the applicant does not have a well-founded fear of persecution for the Convention reason of political opinion and any other Convention reason, now or in the reasonably foreseeable future, should he return to Sri Lanka.

…

Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

No specific Convention claims were made by or on behalf of the applicant’s wife and child, and there is no basis on which the Tribunal can be satisfied that they are refugees. The fate of their application therefore depends on the outcome of the applicant’s application. As the Tribunal has found that the applicant does not satisfy the criteria for a protection visa, it follows that his wife and child cannot be granted a protection visa.’

8                     Two principal issues of fact were agitated at the hearing by Mr Krohn of Counsel for the applicant and Mr Mosley of Counsel for the respondent. Broadly, these issues were the significance of the applicant’s participation in fund-raising activities at the mosque in Colombo and his role in the killing of LTTE members in Kattankudy in 1989, and whether his evidence as to his involvement in these matters had changed over time in a way that cast doubt upon his credibility.

Failure to consider relevant matters, and consideration of irrelevant matters.

9                     Several submissions were advanced on behalf of the applicant to the effect that the Tribunal had made one or more errors of law in its reasons for decision. Until recently, the judgment of a Full Court of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 would have precluded me from upholding any of these submissions unless one of the so-called “Hickman conditions” had been satisfied. However, it appears from the recent judgments of the High Court in Re Minister for Immigration & Multicultural and Indigenous Affairs & Anor; Ex parte Applicants S134/2002 [2003] HCA 1 (4 February 2003) and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (4 February 2003), that an applicant can successfully review a decision of the Tribunal, notwithstanding s 474 of the Migration Act 1958 (Cth) (“the Act”), if there has been either a failure to exercise jurisdiction or an excess of the jurisdiction conferred by the Act. I shall consider the substance of the submissions made on behalf of the applicant, before turning to the effect of the High Court judgments to which I have just referred.

10                  First, it was submitted that various irrelevant matters had been taken into account, and relevant matters had not been taken into account. Under this head, it was suggested that the Tribunal had determined the applicant to be a Muslim of Sinhalese ethnicity, whereas he is, in fact, a Tamil Muslim. Despite the implications which that difference might have for a person living in Sri Lanka, this appears a relatively minor error in the context of the decision as a whole. The Tribunal obviously appreciated that the LTTE regarded Muslims as opposed to its interests and the Tribunal clearly identified the applicant as a Muslim.

11                  It was also submitted that the Tribunal had not referred to various pieces of information on file about the existence of the Jihadh movement, and had failed to take that evidence into account. It does not follow that, because the Tribunal has not referred to every discrete piece of evidence before it, that there has been a failure to consider relevant evidence. The Tribunal clearly preferred the country information quoted at [5] above. It is not for this Court to interfere with that preference. It was next contended that the Tribunal had wrongly failed to characterise the Jihadh as a social group, being members of the Muslim community who were continually active in resisting the LTTE. It was submitted that the Tribunal had looked for evidence of a coherent, permanent organisation, and failing to find it, had drawn a conclusion adverse to the applicant about his claim to be part of the Jihadh. However, if the applicant’s case is that he was visible to the LTTE as part of an identifiable community which regularly resisted LTTE actions and interests, that claim was, in effect, assessed and rejected by the Tribunal when it concluded:

‘The Tribunal accepts that the applicant may have participated as a youth in a spontaneous reaction to some event against the LTTE but does not accept that there is any interest in him as claimed, not only did he leave the east of Sri Lanka soon after the incident but he has not taken part in any activity which could be remotely construed as anti LTTE since that time. More than ten years have elapsed. The Tribunal thus finds that there is not a real chance that the applicant would be persecuted for taking part in one anti LTTE activity in his youth, an activity where the importance of his role was at best peripheral.’

12                  Quite simply, the Tribunal found that the applicant could not be considered to be part of any group presently involved in forcibly resisting the LTTE, as he had been only peripherally involved in one violent incident in his youth over ten years previously. The Tribunal did not conduct its examination by first asking whether the applicant had been shown to have been a formal member of an organisation opposed to the LTTE and then finding against him on that basis alone. Rather, it took the view that, on the whole of the evidence, there were no substantiated grounds for a “well-founded fear of persecution” by the LTTE. Nor was it irrelevant for the Tribunal to inquire into whether the Jihadh existed, in fact, as a recognisable organisation. Had it found the existence of the Jihadh as a permanent organisation, the applicant’s claim would have been strengthened. However, the Tribunal’s reasons do not support the assertion that the Tribunal adopted the corollary that the non-existence of a permanent Jihadh organisation was fatal to the applicant’s case.

13                  Finally under this head, the applicant contended that fundamental to the Tribunal’s decision was the significance which it attached to “an inconsistency which did not in fact exist”, being the Tribunal’s perception that the applicant “had distanced” himself from claims of involvement in the killing of an LTTE leader and had introduced his fundraising claims late in the proceedings to bolster a perceived weakness in his case. The applicant’s credibility was assessed as a whole by the Tribunal, which also found his account of the incident in 1989, when the killing of LTTE leaders took place, to be “unconvincing”. The Tribunal’s view of the applicant ‘s credibility did not rest solely on that lack of conviction. Nor is it clear to me that the view which the Tribunal took was not open to it on the facts. Counsel for the applicant submitted that the applicant had done no more than clarify certain matters and would have done so earlier had he been able to attend an interview with the Department. However, it does not follow that, even if they had been raised earlier, the Tribunal could not have found as a matter of fact that the applicant’s “clarifications” were embellishments.

14                  It was also submitted on behalf of the applicant that the Tribunal had asked itself a wrong question by addressing the issue of the applicant’s alleged membership of the Jihadh as concerned with a “discernible organised … group of a kind”, as opposed to a social group. However, I regard that as merely a difference of verbal formulation. As explained above, it was not irrelevant for the Tribunal to make an assessment of whether the Jihadh had a distinct existence as a coherent organised entity.

15                  On analysis, what the applicant has imputed to the Tribunal as errors of law were no more than omissions by the Tribunal to make the findings of fact that the applicant wished it to make on the evidence. The Tribunal came to its view, as it was required to by the Act, after forming its own assessment of the applicant’s credibility and the probability, either as a matter of logic or human experience, of his assertions being true: Mousoof v Minister for Immigration and Multicultural Affairs [2000] FCA 1522 at [15]. This fact-finding function is a vital part of the statutory jurisdiction conferred upon the Tribunal, and nothing that has been put on the applicant’s behalf shows any error of law by the Tribunal in reaching its conclusions of fact. It is not sufficient that this Court might have taken a different view of the evidence, had it been entrusted with the decision-maker’s task. However, I am not to be taken, in any event, as indicating, that, had I been in that position, I would necessarily have taken a different view of the evidence from that which commended itself to the Tribunal. Quite apart from any issues of late presentation, the logical connection between applicant’s alleged conduct and any resultant persecution which he claimed to fear, seems quite tenuous. It is hard to see that, by participating in a charitable collection in his own Mosque and by encouraging other Muslims to do the same, the applicant would have acquired a higher profile in the wider community sufficient to attract the LTTE’s attention to him.

16                  The applicant’s case in relation to his participation in the killing of LTTE members, was that he had merely been part of an armed band, some other members of which had killed LTTE members in reprisal for raids upon their village. It seems unlikely that his peripheral involvement in that activity, over ten years ago, would bring the applicant to persecutory attention from the LTTE if he were now to return to Sri Lanka. In any event, the Tribunal declined to accept the applicant’s claims in this respect, finding them implausible on the basis of its own reasoning and human experience. For the Court to displace these findings in the present case would be an impermissible intrusion on the Tribunal’s fact-finding function. It would also be contrary to the merits, as I perceive them, of the case as argued before this Court. The findings made by the Tribunal were open to it.

Issues raised in the hearing and not dealt with in the Tribunal’s reasons.

17                  Leave was given for the parties to file further written submissions after they had been furnished with a transcript of the hearing before the Tribunal. Those further submissions were to be directed to whether material had been agitated before the Tribunal which was not properly addressed in its reasons for decision. The applicant submitted that the applicant’s answers as to why he feared persecution if he were returned to Sri Lanka raised issues of fact not considered by the Tribunal. The relevant passages (at pages 14, 16 and 17 of the transcript) were said to be:

TRIBUNAL: ‘So why would you think that if you went back to Sri Lanka you would be persecuted?’

APPLICANT: ‘Okay, what happened was that when I was in Colombo and this particular occasion this happened on this day, which was 26 January 1995 round 8.30 pm about three guys came and knocked at the door and my wife opened the door and they forced themselves inside. One of them was actually carrying a revolver and he pointed it to my head and then he pointed it towards my wife and he said if I don't give up my act, which was like raising funds and trying to help the Muslims on the east, they would kill me. At the same time I was - I was worried that if the army intelligence came to know about the LTT movements around my house they would think of me as an informer and I will be targeted from both sides and the army will be trying to get information from me as well.’

… … …

TRIBUNAL: ‘So what is it that you fear about returning to Sri Lanka?’

APPLICANT: ‘I fear that my life would be in danger. Although they came to know my whereabouts after five years and still even when I go back they might feel that "this guy has come back and he could start serious things from scratch" and best thing would be to just bump me off.’

… … …

TRIBUNAL: ‘Where is the trail?’

APPLICANT: ‘Well, if they feel - they might feel that when I go back I would start doing the same thing again or maybe team up with of my mates who are in Colombo and start doing the same thing again. At the same time I was fearing about the LTT members coming to my place and the army would come to know about them and the army might use me and then I would become a further threat to the LTTE.’

18                  For the applicant it was contended that these passages raised his claim to fear of persecution by the LTTE as a result of his involvement in raising money to assist Muslims, which would be construed as opposed to the interests of the LTTE; and because of a risk that the army would misinterpret the threatening visits which the LTTE had made to the applicant at his home as indicating that the applicant was actually an LTTE member.

19                  The Tribunal rejected the applicant’s evidence that LTTE members had visited him at his home. It is not open to this Court to substitute its own finding on that question of fact. Once the Tribunal determined that the LTTE had never visited the applicant at his home, no question of the army’s misinterpreting the purpose of those visits could arise; the apprehension of army persecution was a dependent issue and the Tribunal was not obliged to consider it once it had found against the applicant on the principal claim of LTTE harassment. On this point, Counsel for the respondent persuasively cited Abebe v Commonwealth (1999) 197 CLR 510 at [85] per Gleeson CJ and McHugh J and at [298] per Callinan J. The analogy drawn by Counsel for the applicant with Shanmugavarathan v Minister for Immigration & Multicultural Affairs [2000] FCA 1215 is not apposite, as in that case two very different claims were raised in a way that made it clear that the applicant’s claim to have participated in pro-Tamil demonstrations in Australia was not logically dependent on his having been detained for a Convention reason in Colombo in 1996 which the Tribunal had rejected.

20                  A tribunal does not commit an error of law constituted by a failure to give reasons, if, read as a whole, and making proper inferences, the tribunal’s written decision sufficiently indicates its reasoning and findings on material matters: McAuliffe v The Secretary and Department of Social Security (1991) 23 ALD 284 and (1992) 28 ALD 609. It is not enough to suggest, in the circumstances of the present case, that the Tribunal should have explicitly spelled out that it had rejected a well-founded fear of persecution by the army because it had found that the LTTE visits which were said to have given rise to that fear were found not to have occurred in fact For this Court to impute an error of law of that kind to the Tribunal would require an over-zealous scrutiny of its reasons with an eye too keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Collector of Customs v. Pozzolanic Enterprises (1993) 43 FCR 280 at 287.

21                  The Tribunal clearly addressed the fundraising issue when it found:

‘The applicant has not advanced any arguments as to the reason the LTTE would target him for encouraging people to donate money, in a mosque, which would appear to be a normal collection for charity, practised in a place of worship not only by Muslims but by many other religions. The late presentation of these claims, the contradictions therein and the implausibility of the motivation for his being sought out, lead the Tribunal to consider that these claims are an embellishment and the Tribunal does not accept them.’

The conclusion that this claim is an “embellishment” may have been forcefully expressed, but, given the limited nature of the applicant’s alleged fundraising activities, I consider it to have been open to the Tribunal, on the evidence, to find that it was improbable that those activities would have attracted adverse attention to the applicant from the LTTE.

Procedural fairness

22                  Mr Krohn also submitted on behalf of the applicant, that, in reaching its conclusion, the Tribunal had denied the plaintiff natural justice. The plaintiff’s application to the Tribunal had been heard before the insertion into the Act of s 422B which now provides an exhaustive statement of the content of the Tribunal’s obligation to accord natural justice. That section came into operation on 4 July 2002 after the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) had received assent on 3 July 2002, whereas the applicant’s case had been heard on 21 August 2001. It is therefore necessary to consider the recent case law on natural justice as affording a ground of review in this Court.

23                  Until recently, on the authority of NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 at 622 per von Doussa J, Black CJ agreeing at 452 and Beaumont J at 485-486 and 515, the application of the “privative clause” embodied in s 474 would have prevented the Court from considering arguments in relation to natural justice or, to use the more informative term, procedural fairness. It would appear, following the recent judgments of the High Court in Re Minister for Immigration & Multicultural and Indigenous Affairs & Anor; Ex parte Applicants S134/2002 [2003] HCA 1 (4 February 2003) and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (4 February 2003), that a denial of procedural fairness, at least in some circumstances, may render a purported decision under the Act one which is not protected from judicial review by the privative clause. If a purported decision is not protected by the privative clause, a plaintiff may be able to seek orders for relief under s 75(v) of the Constitution. However, I do not understand either S134/2002 or S157/2002 to establish that any denial of procedural fairness will be sufficient to place a challenged decision outside the protection of s 474.

24                  In S157/2002, in the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ, their Honours at [62] rejected in these terms an argument advanced on behalf of the Commonwealth as to the proper interpretation of s 474;

‘On behalf of the Commonwealth, it was contended that s 474 should first be construed as meaning and intended to mean that decisions are protected so long as there has been a bona fide attempt to exercise the power in question, that they relate to the subject-matter of the legislation and are reasonably capable of reference to the power. Then it is said that, being a later provision than those by which particular powers are conferred, s 474 should be construed as impliedly repealing all limitations on those powers leaving only constitutional limitations and those which derive from s 474. In terms, the argument was that s 474 "enlarges the powers of decision-makers so that their decisions are valid so long as they comply with the three Hickman provisos".’

25                  Their Honours went on at [74]–[78] to make these observations:

‘… However, s 474(1)(c) cannot be read in isolation from the definition of "privative clause decision" in s 474(2). That definition relevantly confines "privative clause decision[s]" to decisions "made, proposed to be made, or required to be made ... under this Act". …

When regard is had to the phrase "under this Act" in s 474(2) of the Act, the words of that sub-section are not apt to refer either to decisions purportedly made under the Act or, as some of the decisions made on behalf of the Commonwealth might suggest, to decisions of the kind that might be made under the Act. …

Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression "decision[s] ... made under this Act" must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all". Thus, if there has been jurisdictional error because, for example, of a failure to discharge "imperative duties" or to observe "inviolable limitations or restraints", the decision in question cannot properly be described in the terms used in s 474(2) as "a decision ... made under this Act" and is, thus, not a "privative clause decision" as defined in ss 474(2) and (3) of the Act.

To say that a decision that involves jurisdictional error is not "a decision ... made under [the] Act" is not to deny that it may be necessary to engage in the reconciliation process earlier discussed to ascertain whether the failure to observe some procedural or other requirement of the Act constitutes an error which has resulted in a failure to exercise jurisdiction or in the decision-maker exceeding its jurisdiction.

The effect of s 474 is to require an examination of limitations and restraints found in the Act. There will follow the necessity, if s 474 is constitutionally valid and if proceedings are brought by the plaintiff in accordance with the draft Order Nisi, to determine, in those proceedings, whether, as a result of the reconciliation process, the decision of the Tribunal does or does not involve jurisdictional error and, accordingly, whether it is or is not a "privative clause decision" as defined in s 474(2) of the Act.’ (Footnotes omitted.)

26                  That analysis seems to indicate that, on an application for review by this Court of a decision to refuse a protection visa, the correct place to start is with an assessment of whether there is a limitation imposed by the Act that has been transgressed, or a statutory requirement which has not been observed. If there has been such a legal error, and it is one which would have deprived the Tribunal of jurisdiction, then the Tribunal has not, legally, made a decision at all and the purported decision cannot be protected by s 474. However, whether or not an error deprives the Tribunal of jurisdiction will depend on a reading of the relevant provisions of the Act (including s 474), which may have the effect that certain provisions are not to be treated as essential to the exercise of jurisdiction. In each case it will be necessary to consider whether the procedural or other requirement which an applicant alleges has been disregarded is, as a consequence of s 474, to be construed as “not essential to the validity of a decision”: S157/2002 at [69] per Gaudron, McHugh, Gummow, Kirby, and Hayne JJ.

27                  Where s 474 is found not to apply to prevent review of a decision, the consequence will be that “jurisdiction otherwise conferred upon federal courts by the laws specified in s 476(1) in respect of such decisions will remain, to be given full effect in accordance with the terms of that conferral” and this Court will be able to review that decision: S157/2002 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [96]. In S134/2002 Kirby and Gaudron JJ undertook (at [72]) this further examination of the availability of judicial review where jurisdictional error can be demonstrated;

‘ … for the reasons given in Plaintiff S157/2002 v The Commonwealth of Australia, s 474 does not prevent the grant of prohibition, mandamus or certiorari in respect of decisions on the part of officers of the Commonwealth involving jurisdictional error for such decisions are not regarded, in law, as decisions at all and are, thus, not properly described as "a decision ... under [the] Act". However and as also explained in Plaintiff S157/2002 v The Commonwealth of Australia, the effect of a provision such as s 474 of the Act is to necessitate an examination of statutory limitations or requirements to ascertain whether, in the light of s 474's restrictions on judicial review, non-observance of those limitations or requirements does or does not result in jurisdictional error.’

28                  Thus, a decision purportedly made by the Tribunal, where it has not followed all procedural steps which it is obliged to follow (in the sense that there is nothing in the scheme of the Act to suggest that those steps are “not essential to the validity of a decision”), is a decision made without jurisdiction. In this limited sense, a denial of procedural fairness can constitute jurisdictional error, but not every case will disclose such a denial. What is required is more than an infraction of a rule of natural justice; it is a failure to exercise a jurisdiction, which the Tribunal was bound to exercise, in the manner in which it was bound to do so.

29                  A recent illustration of the type of denial of procedural fairness which amounts to jurisdictional error has been furnished by the judgment of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117. In that case, the Tribunal, through a serious administrative oversight, had failed to give the applicant a hearing, as it was obliged to do before coming to a final decision. Nevertheless, it purported to make a final decision. By failing to undertake the necessary step of conducting a hearing, the Tribunal was held to have acted without jurisdiction and its decision was not validly made. In law the duty to make a decision remained unperformed, and the Tribunal, in fact, made no decision at all: Bhardwaj at [53] per Gaudron and Gummow JJ, McHugh J (agreeing), at [153]-[155] per Hayne J and at [165] per Callinan J.

30                  In the present case, the applicant, in written submissions, claimed that the Tribunal had infringed, or misused, various provisions of the Act including ss 420, 420A, 425 “and the manner in which it used [s] 424A”. Section 424A(1) imposes on the Tribunal an obligation to “give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” and to “invite the applicant to comment on it”. The Tribunal did invite the applicant to attend an interview before it conducted a hearing in his case. The applicant (it was submitted, through no fault of his own) did not attend that interview. At the subsequent hearing before the Tribunal, the applicant raised (he contends by way of clarification) for the first time, claims which the Tribunal considered had been raised late, and in a manner that might suggest that they were an embellishment. In a letter dated 27 August 2001 the Tribunal raised this issue with the applicant again and invited further comment. The applicant, in written submissions, now contends that:

‘… on the comments made by the Applicant [in response to the s 424A request by the Tribunal] … the applicant should have been given a further opportunity to deal with such issues before the Tribunal. It would appear that the Tribunal in this instance used Section 424A not for the benefit of the applicant but, only to reinforce its train of thought and therefore has failed to comply with the Act …’

The submissions do not identify a particular statutory provision which require the applicant to be invited to a further hearing as well as being asked to provide further information in writing. The Tribunal had already put to him, at the hearing on 21 August 2001, that his “clarifications” could be seen as the late presentation of new claims. Nothing in the Act obliges the Tribunal to reopen a hearing following a response to a s 424A request for information. Nor is there any express or implied requirement that the Tribunal use information given pursuant to a request under s 424A only for the benefit of the applicant. In the absence of some breach or disregard of a statutory limitation or requirement, I cannot impute to the Tribunal a jurisdictional error in this respect of the kind articulated by the High Court in S157/2002, S134/2002 and Bhardwaj.

31                  Section 420A provides for the giving of directions by the Principal Member of the Tribunal and nothing further was put in oral argument to suggest how any alleged non-compliance with that section might give rise to a relevant jurisdictional error. Indeed, s 420A(3) expressly stipulates that non-compliance with a direction of the Principal Member does not mean that the Tribunal’s decision on a review is invalid. Section 425 requires the Tribunal to “invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”, unless one of the requirements in s 425(2) is met. Manifestly, this requires only one hearing, which the applicant was granted. Section 420 provides that the Tribunal “in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”. Nothing further was put to me as showing that the Tribunal had breached or disregarded that provision so as to give rise to jurisdictional error. In my view, s 420 is merely exhortatory and it is difficult to conceive of conduct, short of actual bad faith, which could be said to frustrate the objective postulated by s 420 so as to amount to jurisdictional error. Of course, not even the full force of the privative clause can preserve actual bad faith from judicial review. I do not consider myself constrained by authority or general principles of statutory construction to regard s 420 as a separate, independent source of an obligation on the Tribunal to accord procedural fairness. Unless there has been an infringement of a specific obligation of that kind or a disregard of a fundamental limitation arising by necessary implication from identifiable provisions of the Act, the reasoning in S157/2002 and S134/2002 precludes review of a decision of the Tribunal for jurisdictional error.

32                  In the circumstances of this case, I have been unable to discern any failure by the Tribunal to comply with a statutory requirement or any excess of an express or implied limitation. In any event, I cannot impute to the Tribunal any denial of natural justice, let alone one so fundamental as to deny the application of the privative clause on the ground spelled out in S157/2002 and S134/2002.

33                  Putting to one side the question of whether the Tribunal failed to consider possible persecution of the applicant by the army (which, for the reasons given above, it was logically unnecessary for the Tribunal to consider), the applicant’s case was ultimately a simple one. It was, in essence, that the Tribunal had drawn an inference as to credit that was not open to it on the facts. That case rests upon the premise that, fundamental to the Tribunal’s decision, was the weight which it gave to, in Mr Krohn’s words, “an inconsistency [in the applicant’s evidence] which did not in fact exist”. Whether “material error of fact”, in the sense of there having been “no evidence or other material to justify the making of the decision”, can be relied upon, without more, as a ground of judicial review (other than under the Administrative Decisions (Judicial Review) Act 1977 (Cth)) was a question raised, but not decided, in R v Criminal Injuries Compensation Board, Ex parte A [1999] 2 AC 330, and adverted to in S134/2002 by Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ at [35]-[37]. Irrespective of its availability in the present case, it is not an error which would deprive the Tribunal of jurisdiction, making its decision a nullity. The allegedly mistaken fact did not result from the Tribunal’s having exceeded any limit upon its powers, or having failed to comply with an obligation that would deprive it of jurisdiction. If there was an error, it occurred in making an assessment of the applicant’s credit which the Tribunal was entitled to make on the evidence before it. Nor am I persuaded, in any event, that there was no probative evidence to support the conclusion which the Tribunal reached so as to make out a case of “material error of fact”, even if that were available by application of the common law to the present case. In none of the respects argued by Counsel for the applicant has there been an error, in my view, reviewable by this Court.

Conclusion

34                  For the reasons outlined above, the application must be dismissed with costs.

Associate:

Dated: 17 March 2003