FEDERAL COURT OF AUSTRALIA

Applicant M190 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1362

MIGRATION – judicial review – protection visa – failure to consider relevant facts – jurisdictional error

Migration Act 1958 (Cth) s 474

Akers v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 363 cited

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 referred to

Independent FM Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 17 ALD 529 applied

Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 cited

Minister of State for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77 applied

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 cited

R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 All ER 929 cited

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S134/2002 (2003) 195 ALR 1 referred to

APPLICANT M190 OF 2002 v THE HONOURABLE PHILIP RUDDOCK IN HIS CAPACITY AS MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, MARGARET HOLMES IN HER CAPACITY AS MEMBER CONSTITUTING THE REFUGEE REVIEW TRIBUNAL

and STEVE KARAS, IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

V 310 of 2003

FINKELSTEIN J

28 NOVEMBER 2003

MELBOURNE

On remittal from the High Court of Australia

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal be set aside and the matter be remitted to the tribunal to be heard and determined according to law. 

2. The first respondent pay the prosecutor’s costs of the application, 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.

On remittal from the High Court of Australia

REASONS FOR JUDGMENT

1                     The Refugee Review Tribunal rejected the prosecutor’s claim to be a Convention refugee.  In arriving at its decision the tribunal made an unfortunate error.  It inadvertently overlooked important facts.  If it had considered those facts it may have found in favour of the prosecutor.  The question in issue is whether the tribunal’s error is “jurisdictional” so that its decision may be set aside and the matter remitted for reconsideration.

2                     Only a brief statement of the facts is necessary to expose the problem.  The prosecutor is from Cameroon, a former French territory.  Cameroon has a troubled political history.  Since independence in 1960, the country has been under the control of a single political party.  Political opponents are harshly treated.  Security forces often arrest and arbitrarily detain opponents and hold them for long periods without trial.  Political prisoners are beaten and tortured.  On occasion they are murdered.  The judicial system is of little help.  It is corrupt, inefficient and subject to political interference.

3                     The prosecutor asserts that he is a Convention refugee because of his political activities in Cameroon.  He claims to be a member of an opposition political party.  He says that he was arrested on account of his activities and, while in detention, was beaten and seriously injured.  A medical report from an Australian doctor states that some of his injuries are “consistent” with having been cut by glass and having chilli powder rubbed into the wound.

4                     There was a hearing before the tribunal at which the prosecutor gave evidence.  Following the hearing the tribunal member learnt of a successful application for refugee status by another former citizen of Cameroon (I will refer to this person as Mr X) whose application form for a protection visa was in some respects identical to the prosecutor’s application form.  The tribunal sent a copy of part of the prosecutor’s application form to him under cover of a letter.  The application form was highlighted so that it indicated the parts that were the same as Mr X’s application form.  The letter went on:

“As you will observe, the similarities between your application and the other application are considerable.  The Member understands that there are a number of possible explanations for this similarity.  She has not reached any conclusions as to the significance or otherwise of the similarity between the applications.  Nevertheless, the extensive similarities do raise concerns about whether the information contained in your protection visa application represents an accurate account of your own circumstances in Cameroon.”

The prosecutor was invited to comment.

5                     The prosecutor’s migration agent provided a written submission by way of response.  In that response the migration agent stated:

“… our client denies any suggestion that he has copied or fabricated the information contained in his application.  He instructs us that the information contained in his application, which has been elaborated on and clarified in subsequent written and oral evidence provided to the Tribunal, is in all respects an accurate and genuine account of his political activities in Cameroon…He prepared his application in April 2000 when he was living at 34 Campbell Street, St. Peters, in New South Wales.  He instructs that he did not discuss his claims or his application with anyone, and he did not show his application to anyone.  He states that he prepared the application over the course of a few days, and during that time he did not carry the application around with him but left it at the house.  He instructs further that the house was a share house where a number of people from different African countries lived.  He shared a room upstairs with two South Africans.  As he stated at the hearing, as far as he was aware there were no people from Cameroon living in the house by the time he lived there, although there had been previously.”

6                     This explanation did not persuade the tribunal that the prosecutor had not copied Mr X’s application.  To the contrary, the tribunal formed “the view that the [prosecutor] has either copied the story from [Mr X’s] application or from some other source which they both used to complete their applications changing certain critical details in an attempt to make a different story…The great many similarities between the [prosecutor’s] application and the application lodged by [Mr X] together with the absence of a convincing explanation as to how this occurred have contributed to my conclusion that [the prosecutor] has not given an accurate account of his circumstances.”

7                     There were, however, facts to which the tribunal did not have regard that may have provided the “convincing explanation” which it said the prosecutor had not given.  The facts are as follows.  First there is Mr X’s visa application form.  The Migration Regulations require an application for a visa to be made on a prescribed form:  reg 2.07.  Prescribed forms change from time to time.  The print date at the foot of Part C of Mr X’s protection visa application form (where the similar section is to be found) shows that it was designed in July 2000.  This is approximately two and a half months after the date upon which the prosecutor had lodged his visa application with the Minister.  So, on any view of the matter, the prosecutor could not have copied the application form submitted by Mr X. 

8                     This does not negate the possibility that the prosecutor and Mr X each copied parts of their respective applications from a common source.  Nor does it exclude the possibility that the prosecutor copied a draft application prepared by Mr X before Mr X prepared and submitted his application in its final form.  By the same token it is equally possible that Mr X copied from the prosecutor’s application.  This possibility was not considered by the tribunal. On the evidence that was available to the tribunal, it should have been considered.  The first piece of evidence is, of course, that the prosecutor’s application form preceded Mr X’s application form.  The second piece of evidence (and this is the other fact which the tribunal ignored) is that at some point Mr X lived in the same house as the prosecutor.  Indeed, it is possible that they lived in the same house at the same time.  Before Mr X made his visa application he had claimed to be a South African national.  Apparently, he had used a false South African passport to enter Australia.  It will be remembered that the migration agent’s submission to the tribunal stated that two South Africans were living with the prosecutor when he prepared his application.  Mr X may have been one of these people.

9                     If the tribunal had noted the fact that the prosecutor could not have copied the application form submitted by Mr X, it is inevitable that it would have considered the possibility that Mr X was the copyist.  If it had regard to the other fact to which I have referred, then, with or without further inquiry, it may have formed the view that Mr X was the copyist.  It seems clear that the tribunal’s failure to give this issue any genuine consideration is, in large measure, the result of the fact that the tribunal failed to appreciate that it was simply not possible for the prosecutor to have copied the application form submitted by Mr X.

10                  Does this error amount to a jurisdictional error?  It is well established that if an administrative decision-maker misinterprets the legislation under which he purports to act, or takes into account matters irrelevant to his decision or refuses or fails to take account of matters relevant to his decision, or reaches an unreasonable decision, the court may set aside his decision for error of law:  R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 All ER 929, 976.  Relevantly, the cases show that the failure of a decision-maker to take into account a fact that a reasonable decision-maker would have discerned and taken into account is an error of law which renders his decision liable to be set aside:  Minister of State for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77, 80; Independent FM Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 17 ALD 529, 531-532.

11                  However, in order to quash a decision made under the Migration Act 1958 (Cth), it is not sufficient to show mere error of law.  The effect of s 474 of the Migration Act is that it is also necessary to show that the error is a jurisdictional error:  Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.  There is a discussion on the meaning of jurisdictional error “in the narrow original sense” (which is the sense in which the expression is used by the High Court in Plaintiff S157/2002 v Commonwealth) by the Privy Council in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.  After discussing the meaning of “jurisdiction” in its very wide sense, Lord Reid said (at 171):

“But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity.  It may have given its decision in bad faith.  It may have made a decision which it had no power to make.  It may have failed in the course of the inquiry to comply with the requirements of natural justice.  It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it.  It may have refused to take into account something which it was required to take into account.  Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account.  I do not intend this list to be exhaustive.  But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly.”

12                  Any one of these errors is a jurisdictional error for the purposes of s 474.  While it may now not be correct to say that a decision infected by jurisdictional error is a “nullity”, it is certainly a decision which will have no legal effect and may be quashed notwithstanding s 474. 

13                  In light of these principles, if an important fact is, without reason, overlooked by the tribunal it is guilty of failing to take a relevant consideration into account.  Perhaps it may also be said that the tribunal did not give proper general and realistic consideration to the merits of the case before it (Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291) or that there was an improper exercise of power (Akers v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 363, 373).  Nothing said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S134/2002 (2003) 195 ALR 1 requires a different conclusion. 

14                  The tribunal’s decision should be quashed and the matter remitted for its reconsideration.  The prosecutor should have his costs of the application.

Associate:

Dated:              28 November 2003