FEDERAL COURT OF AUSTRALIA

STKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 546

MIGRATION – Jurisdictional error – Wednesbury unreasonableness – application of Enclish authority – whether ‘lower level’ test of unreasonableness in case involving human rights – fresh evidence – admissibility of evidence to show factual error by Tribunal

Migration Act, 1958 (Cth)

Evidence Act, 1995 (Cth)

SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 502

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

R v Lord Saville Ex parte A [2000] 1 WLR 1855

R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840

R v Secretary of State for the Home Department [2001] 2 AC 532

Dunlea v AG [2000] 3 NZLR 136

AG (NSW) v Quin (1990) 170 CLR 1

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Corporation of the Enfield City v Development Assessment Commission (2000) 199 CLR 135

Re Minister for Immigration and Multicultural Affairs Ex parte Lam (2003) 195 ALR 502

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59

SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231

SGFB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 422

R v Criminal Injuries Compensation Board Ex parte A [1999] 2 AC 330

R v Wise (2000) 2 VR 287

Ragogo v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 489

Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438

Waterford v The Commonwealth (1987) 163 CLR 54

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

Hot Holdings v Creasy (2002) 210 CLR 438

WATI v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103

Canwest Global Communications Corp v Australian Broadcasting Authority [1998] FCA 4

STKB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 850 of 2003

SELWAY J

5 MAY 2004

ADELAIDE

THE COURT ORDERS THAT:

The application be dismissed.

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

REASONS FOR JUDGMENT

1                     The applicant seeks certiorari to quash the decision of the Refugee Review Tribunal (the Tribunal) given on 25 August 2003. Of course, this Court has no jurisdiction to grant certiorari except as ancillary to some other jurisdiction lawfully vested in the Court. No other jurisdiction is identified. On the assumption that some head of jurisdiction could be identified, it is appropriate to consider, however, presuming that the application could be further considered whether any jurisdictional error in the decision of the Tribunal has been shown. For the reasons given below I am of the view that no jurisdictional error has been established. The application must be dismissed.

2                     The applicant arrived in Australia on 22 October 1999. On 29 May 2000 he applied for a temporary protection visa. That visa was cancelled on 4 December 2002. The decision to cancel the temporary visa was affirmed by the Refugee Review Tribunal on 4 March 2003. The applicant sought judicial review in this Court of the Tribunal’s decision. That application was dismissed by me in SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 502. That decision was affirmed by the Full Court on appeal: [2003] FCAFC 303 (SHJB). I understand that the applicant has sought special leave from the High Court to appeal from the Full Court decision. The High Court has yet to hear that application.

3                     On 7 August 2000 the applicant sought to be granted a permanent protection visa. In order to obtain such a visa the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) had to be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: s 36(2) of the Migration Act, 1958 (Cth) (‘the Act’). In general terms the Minister had to be satisfied that the applicant was a ‘refugee’ as defined in the Convention being a person who:

‘… owing to a well-founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’

4                     The application for a permanent protection visa was refused by a delegate on 2 June 2003. The applicant sought to have that decision reviewed by the Tribunal. On 25 August 2003 the Tribunal affirmed the decision of the delegate. It is in relation to that decision that the applicant complains.

5                     The factual background to the claim is set out in SHJB. It is unnecessary to repeat it. The evidence and issues that were before the Tribunal in this case were broadly the same as those considered by the previous Tribunal as discussed in SHJB. In this case the Tribunal was again faced with a dispute in the evidence. The applicant claimed that he was from Afghanistan. On the other hand there was a good deal of material (much of it collected by newspaper journalists) alleging that he was, in fact, a citizen of Pakistan. After what would appear to be a careful consideration of the material before it the Tribunal concluded that the applicant was from Pakistan. Consequently it concluded that that he did not have a well founded fear of persecution.

6                     I note that the Tribunal took into account some of the criticisms made in SHJB of the use of some evidence by the Tribunal in the previous case. It would appear that the Tribunal in this case did not take account of that evidence in its consideration of the application by the applicant for a permanent protection visa.

7                     The parties are agreed that for the applicant to succeed in his application to this court for prerogative relief the applicant must show that there was a jurisdictional error in the process, reasons or decision of the Tribunal. Although there were a number of grounds of alleged jurisdictional error set out in the Amended Application, at the hearing the applicant only alleged two jurisdictional errors.

8                     First, the applicant argued that the decision of the Tribunal was irrational and/or unreasonable. The applicant says that the manner in which the Tribunal dealt with the evidence before it was irrational and/or unreasonable. It is unnecessary to go through the detail of why the applicant makes that claim. The applicant accepts that he cannot succeed if the test for irrationality or unreasonableness is the test proposed in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230 that is, ‘has the decision maker come to a result that is so absurd that no sensible person could do so?’ Obviously that is a very narrow test. However, the applicant says that where the issue involves basic human rights a different test of reasonableness should be applied. That test would be subject to a ‘margin of appreciation’ with the relevant margin being proportionate to the extent of the interference with human rights.

9                     The approach submitted by the applicant has English authority to support it: see R v Lord Saville Ex parte A [2000] 1 WLR 1855 at 1867 per Lord Woolf MR; R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 at 847 per Laws LJ; R v Secretary of State for the Home Department [2001] 2 AC 532 (Daly) at 547-549. As is clear from those judgments, the adoption of that approach in England may well be related to the developments in European law which have application in England. However, I note that New Zealand courts may have adopted a similar approach: see Dunlea v AG [2000] 3 NZLR 136 at 159[73].

10                  Nevertheless, the approach is contrary to that taken in this country. In Australia the position has been taken and maintained that merit review is not available, subject only to review for Wednesbury unreasonableness. This is a confined limitation: see AG (NSW) v Quin (1990) 170 CLR 1, 35-36 per Brennan J; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626-629 [39]-[53], 640-641 [100]-[103], 648-657 [122]-[147], 669-673 [183]-[194]; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 152-154 [43]-[44] per Gleeson CJ, Gummow, Kirby and Hayne JJ; Re Minister for Immigration and Multicultural Affairs Ex parte Lam (2003) 195 ALR 502, 519 [72] per McHugh & Gummow JJ; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (S20) at 62, 67, 76, 90-91; SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 at [18]-[19].

11                  In any event, the applicant put the same argument to the Full Court in SHJB. The Full Court rejected it: see [24]-[33].

12                  It follows that the first ground of alleged jurisdictional error must be rejected.

13                  The second ground of alleged jurisdictional error was that the Tribunal’s decision should be set aside on the basis that the decision was flawed in that the Tribunal did not have available to it some documentary material which was sought to be placed before this Court. That material consists of signed documents from various persons apparently in Afghanistan, some purportedly official and some not, stating that the applicant is who is he says he is and that he is from Afghanistan. There is nothing formally before me to explain why this material was not put before the Tribunal. However, Dr Churches, who appeared for the applicant, explained that the material was gathered by the applicant’s brother in law who was returned to Afghanistan after the Tribunal hearing was completed. Dr Churches said that he could arrange for an affidavit to be filed to that effect if necessary.

14                  The applicant accepted that this Court could not make a judgment about the reliability of these materials, or whether they should be relied upon in preference to the material that was before the Tribunal. The applicant accepted that the material did not establish that there was ‘no evidence’ before the Tribunal upon which it could have based its decision. Rather, the applicant submitted that in light of this material the decision of the Tribunal was unreasonable or otherwise unfair and that this involved a jurisdictional error.

15                  The first question is whether the relevant materials can be received as evidence in this Court. The applicant has argued that the material is ‘new’ evidence or that it is ‘fresh evidence’. It does not seem to me that it much matters whether it is fresh or otherwise. This Court is exercising original, not appellate jurisdiction. Subject to the Evidence Act, 1995 (Cth) the evidence is admissible if it is relevant to some issue before the Court: see SGFB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 422 at [14]-[16].

16                  For the purpose of identifying the relevant issue the applicant again relied upon an English authority - R v Criminal Injuries Compensation Board Ex parte A [1999] 2 AC 330 (Ex parte A). In that case a Departmental report to the decision maker was incomplete with the result that the decision maker drew an adverse inference which would not have been drawn if the report had been complete. Their Lordships quashed the relevant decision upon the ground that the procedure constituted a breach of procedural fairness, but also commented that there may have been jurisdiction to quash the decision on the basis of an error of fact. The applicant relies upon that case to establish that evidence can be called to show what the facts objectively were even if those facts were not before the decision maker and to show that the proceedings can be set aside for being unfair or unreasonable even if there was no fault by the decision maker.

17                  The applicant also refers to the decision of the Victorian Court of Appeal in R v Wise (2000) 2 VR 287 particularly at 293-294 [19] per Ormiston J. However, that case concerned the question whether there had been a fair hearing in a criminal case. That Court’s conclusion that this was an objective question not limited to the facts before the trial court does not have any necessary application to the question of jurisdictional error under the Act. Finally the applicant referred to the reasons of Moore J in Ragogo v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 489. One of the issues in that case concerned the validity of an arrest. It was at least arguable that that question involved a jurisdictional fact upon which the Tribunal’s jurisdiction depended. In any event His Honour permitted evidence to be given in relation to that question: see at 493-494. Again, it does not seem to me that that case provides the applicant with much assistance in this case.

18                  Finally I mention that Ex parte A would seem to have been referred to with apparent approval by Gleeson CJ in Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at 448[22].

19                  Nevertheless, in my view Ex parte A does not reflect the law in Australia. This would seem to have been acknowledged (even if regretted) by Kirby J in S20 at 97 [165]-[168]. It would seem to have been implicitly accepted by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293 (‘SCAR’) at 298-301 [26]‑[40].

20                  The law in Australia is as stated by Brennan J in Waterford v The Commonwealth (1987) 163 CLR 54 at 77-78:

‘The error of law which an appellant must rely on to succeed must arise on the facts as the A.A.T has found them to be or it must vitiate the findings made or it must have led the A.A.T to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact.’

21                  It may be accepted that there are some qualifications to this general proposition. For example, as SCAR shows, the relevant statute may have the effect that some facts are ‘jurisdictional facts’ with the result that evidence in relation to those facts is relevant and admissible before this Court in order to show that such jurisdictional requirements were not met: see also Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. That is clearly not this case. Dr Churches properly accepted that in this case he could not rely upon a breach of s 425 of the Act, or any other provision imposing any express duty on the Tribunal. In this case the Tribunal was exercising the powers of the Minister. The Minister’s powers under s 65 of the Act rely upon the Ministers ‘satisfaction’ rather than upon any other jurisdictional fact.

22                  Nor is it to deny that there may be some limited circumstances where it might be arguable that acts or errors by Departmental officers or others could result in the invalidity of a Tribunal decision even though the Tribunal was unaware of those acts or errors: see, for example, Hot Holdings v Creasy (2002) 210 CLR 438 at 455-456 per Gaudron, Gummow and Hayne JJ; WATI v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103 at 111-112 per Lindgren J; Canwest Global Communications Corp v Australian Broadcasting Authority [1998] FCA 4 per Branson J. It may be necessary to explore that issue if a case similar to Ex parte A arose for consideration under the Act, that is, a case where Departmental officers acted or failed to act in a way that misled the Tribunal. On any view this case is not one which would fall within such limited circumstances.

23                  It follows that the material is not relevant to any identified jurisdictional error. The material is not admissible. The second alleged ground of jurisdictional error must also be rejected.

24                  The application is dismissed.

Associate:

Dated: 4 May 2004