FEDERAL COURT OF AUSTRALIA

SZDMC v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 763

MIGRATION – appeal from judgment of a Federal Magistrate – protection visa application – claim of persecution on account of political opinion and religious belief – Refugee Review Tribunal hearing conducted over two days – failure of witness to attend hearing due to illness – whether Refugee Review Tribunal breached s 424(1) of the Migration Act 1958 (Cth) – whether a breach of s 424(1) constitutes jurisdictional error – whether Refugee Review Tribunal failed to take into account relevant material or took into account irrelevant material – whether Refugee Review Tribunal failed to afford the appellant procedural fairness.

Acts Interpretation Act 1901 (Cth), s 13

Federal Court of Australia Act 1976 (Cth), s 25

Migration Act 1958 (Cth), ss 422B, 423 424, 424A 424B, 425, 426

Abedi v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 186 applied

Craig v South Australia (1995) 184 CLR 163 cited

Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 976 referred to

Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24 referred to

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 cited

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited

Perera v Minister for Immigration and Multicultural Affairs [2002] FCA 743 referred to

Pojani v Minister for Immigration & Multicultural Affairs [2002] FCA 1283 referred to

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 referred to

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 applied

SZDMC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1960 OF 2004

STONE J

9 JUNE 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                       The appeal be dismissed with costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from the judgment of a Federal Magistrate delivered on 6 December 2004 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘Tribunal’) made on 19 March 2004 and handed down on 13 April 2004.

Background

2                     The appellant is a citizen of Bangladesh.  He claimed to have left Bangladesh for New Zealand on a student visa in July 2003.  The appellant entered Australia on 7 August 2003 on a transit visa.  On 8 August 2003, the appellant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 31 October 2003, a delegate of the respondent (‘Delegate’) refused to grant a protection visa to the appellant and on 23 November 2003 he applied for review of that decision by the Tribunal.

3                     The appellant claimed that he was persecuted on account of his political opinion and religious beliefs.  He claimed that he was an activist in the student wing of the Bangladesh Awami League and that he was popular politically in his local area.  The appellant stated that he had been targeted by the then-governing four party coalition because of his popularity.  In addition, he claimed he was persecuted because of his relationship with a Christian woman and that he would be killed by Muslim fundamentalists and the Jamaat-e-Islami party, part of the ruling four party coalition, because he converted to Christianity.  In support of his application, he submitted copies of Amnesty International reports and some photographs.  The appellant’s protection visa application also noted that he would provide more details later.

The Tribunal hearing

4                     The hearing before the Tribunal took place over two days; 9 and 16 January 2004.  The appellant was represented by a migration advisor, Mr Mollah, on both hearing days.  At the hearing on 9 January 2004, the appellant’s cousin, Mr Mohammed Faisal, was present.  The presiding member was made aware of Mr Faisal’s presence and was clearly conscious that Mr Faisal appeared in order to give evidence.  As it was intended that Mr Faisal would give evidence during the hearing on 9 January 2004, the presiding member directed that he be sworn as a witness, which he was.  However, Mr Faisal did not give evidence on this date.  Rather, this time was spent hearing evidence from the appellant.

5                     The transcript of the hearing on 9 January 2004 records the following exchange between the presiding member, Mr Gibson, and the appellant:

‘MR GIBSON:             …I will be asking any questions I have of you directly.  It is my practice however that after we are finished discussing your case I will turn to the advisor and ask him if he has any areas of your case that he feels that we should look at more closely or if there are any brief submissions that he feels should be put on your behalf.  Do you understand that?

APPELLANT:             Yes.

MR GIBSON:              I will also ask your witness [Mr Faisal] in at a little later date too so that we can take his evidence as well… [sic]’

6                     When the hearing resumed on 16 January 2004, the appellant continued with his oral evidence, which took up most of the hearing time on that day.  The appellant’s migration advisor, Mr Mollah, made short submissions to the Tribunal.  The transcript of the hearing records the following exchange between Mr Gibson and Mr Mollah (with typographical errors corrected):

‘MR GIBSON:             …Now Mr Mollah, last week there was a witness?

MR MOLLAH:            Yes, Mr Faisal.

MR GIBSON:              Is he here today?

MR MOLLAH:             No, last night he told me that he found he is sick, he is unable to attend today’s hearing. If any days it is possible he will be attend before the Member but today he is sick [sic].

MR GIBSON:              Okay.  Is there anything else, Mr Mollah?

MR MOLLAH:            No.

MR GIBSON:               Submissions?  Do you wish time for the submissions, Mr Mollah?

MR MOLLAH:             I think we mentioned everything and discussed these things.

MR GIBSON:              Okay, thanks a lot.  Okay, [appellant], thanks very much for coming along today.  Now in deciding your case I will take into account all the various forms of information and evidence in determining your status.  This includes the department’s file and the tribunal’s file, your applications, statements and written submissions, your oral evidence at the hearing and the documents that you have provided, country information, some of which you have provided and some of which we have discussed; and of course the definition of a refugee contained in the Refugees Convention.  Now I will consider all of that information in coming to my decision.  Do you understand that?

MR MOLLAH:            Thanks.

MR GIBSON:              I will produce a written set of reasons setting out the decision and a copy will be sent to you…Do you understand that too?

MR MOLLAH:            Thanks.’

The presiding member then directed that the hearing be closed. 

The Tribunal’s reasons

7                     The Tribunal set out the claims that the appellant made in his protection visa application.  The appellant claimed that the Delegate had overlooked and ignored his claims.  He claimed that he was having trouble providing additional supporting documents as he did not have anyone to collect the relevant documents from the authorities.  The Tribunal noted that the appellant claimed that he would provide more details later. 

8                     On 8 January 2004, the Tribunal received a statutory declaration of the appellant.  The appellant declared that, in addition to his claims made in his protection visa application, he was ‘severely assaulted’ and that his girlfriend was kidnapped by the Islamic militias, ‘gang raped and then slaughtered’ because of her relationship with the appellant.  He further claimed that he was ‘given a judgment of death by Islamists’ because of his conversion to Christianity and his open declaration to fight for the religious freedom of minorities in Bangladesh.  The appellant declared that he ‘became the target of their [the leaders of Jamaat-e-Islami] attack many times and was prosecuted’ because he did not join the Jamaat-e-Islami party.

9                     The appellant stated that he fled from Bangladesh to New Zealand to save his life.  He claimed that while in New Zealand he was baptised along with his cousin, Mr Faisal, and that he came to Australia because of financial hardship and because the New Zealand government was unwilling to give him protection. 

10                  The Tribunal accepted that the appellant is a Bangladeshi national.  At [75] of its reasons, the Tribunal stated:

‘However, notwithstanding the applicant’s claims, I am unable to accept that the applicant was either a truthful witness or that his evidence had any credibility or veracity.  The applicant’s evidence was to various degrees vague, generalised, lacked in specific detail, inconsistent and contradictory.  I am of the view that the applicant has fabricated his claims to bring himself the profile of a refugee.  He has done this by using the story and supporting evidence of another person as his own.  The lack of credibility and veracity of the applicant’s evidence leads me to conclude that I am unable to be satisfied that the applicant faced persecution in Bangladesh for a Convention reason or faces a real chance of persecution if he returns to Bangladesh for a Convention reason.’

11                  The Tribunal set out in detail the appellant’s evidence given at the hearings on 9 and 16 January 2004.  The Tribunal stated, in relation to Mr Faisal, that:

‘The applicant was asked where the witness, Mohammad Faisal, was for the two hearings.  The applicant claimed that he was sick and could not appear.’

12                  The Tribunal considered all of the claims made by the appellant and gave detailed reasons for rejecting them.  The Federal Magistrate, at [10] of his judgment, stated that:

‘The Tribunal’s statement of reasons contained a detailed analysis of the applicant’s evidence and the Tribunal’s reasons for disbelieving him and rejecting his evidence and claims.’

Federal Magistrate’s decision

13                  The appellant, who was unrepresented before the Federal Magistrate, submitted, inter alia, that Mr Faisal, the appellant’s cousin, had attended to give evidence on 9 January 2004, however, was unable to attend on 16 January 2004 because of illness.  The appellant complained that the Tribunal did not give him more time to allow for his cousin’s recovery to enable him to attend. 

14                  The Federal Magistrate stated at [23] of his reasons that:

‘That witness [Mr Faisal] did not attend either of the hearings with the applicant … and no contact details were provided in relation to him. … It was submitted [by the respondent] that there is no evidence to suggest that the applicant requested the Tribunal to contact this person.’

15                  The Federal Magistrate dismissed the appellant’s application for judicial review having been unable to identify any jurisdictional error in the Tribunal’s reasons.

This appeal

16                  On 23 December 2004, the appellant filed a notice of appeal in this Court and on 10 February 2005, the Chief Justice determined pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that the appeal should be heard and determined by a single judge.

17                  At the hearing of the appeal, the appellant was represented by Ms Avenell of counsel.  With leave of the Court, Ms Avenell filed a second amended notice of appeal.  The grounds of appeal pressed were that the Federal Magistrate erred in failing to find that the decision of the Tribunal is affected by jurisdiction error in that the Tribunal:

(a)               breached s 424(1) of the Migration Act 1958 (Cth) (‘the Act’);

(b)               ignored relevant material, being Mr Faisal’s attendance at the Tribunal and willingness to give evidence;

(c)               took account of irrelevant material, being its erroneous finding that Mr Faisal did not attend the hearings; and

(d)               failed to afford the appellant procedural fairness.

18                  Ms Avenell also sought leave to file and read two affidavits; one sworn by the appellant on 26 April 2005 and one sworn by Mr Sirajul Haque on 27 April 2005.  Annexed to Mr Haque’s affidavit was a transcript of the hearings before the Tribunal on 9 and 16 January 2004.  The respondent objected to the receipt of this evidence on the basis that the transcripts of the hearings of the Tribunal were not before the Federal Magistrate.  I granted Ms Avenell leave to file the affidavits in Court, subject to the relevance of the material being demonstrated, on the basis that although the appellant did not tender the audio tapes or transcripts of the hearings of the Tribunal in the Federal Magistrates Court, he did invite his Honour to listen to audio tapes in his written submissions.  At the end of the hearing, I allowed Mr Haque’s affidavit to be read insofar as the annexed transcript was referred to during the course of argument in this Court.  I also permitted the appellant’s affidavit to be read.

19                  It is evident from the transcript of the hearing of 9 January 2004 that Mr Faisal was present on that day and prepared to give evidence.  Therefore the Tribunal was in error in stating that Mr Faisal did not attend on that day.  It is also clear from the transcript of 16 January that Mr Faisal was not present on that day; see [6] above.  It is not surprising that the Federal Magistrate, not having the benefit of the transcript, repeated the Tribunal’s error.  The consequences and nature of this error are the focus of this appeal.

Section 424

20                  Section 424 of the Act provides:

‘Tribunal may seek additional information

(1)                   In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2)                   Without limiting subsection (1), the Tribunal may invite a person to give additional information.

(3)                   The invitation must be given to the person:

(a)     except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)     if the person is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.’

21                  Ms Avenell submitted that the Tribunal breached s 424(1) in that the Tribunal got information and failed to have regard to it.  Referring to the exchanges set out at [5] and [6] above, counsel for the appellant submitted that the Tribunal of its own initiative sought information, thus enlivening s 424(1) of the Act.  She argued that the information was the fact that Mr Faisal attended the hearing on 9 January, that he was sworn and that he was willing to come on another day, aside from 16 January, to give evidence.  It was submitted that the Tribunal had sought this information of its own initiative because, at the hearing on 16 January, the presiding member asked the appellant’s migration advisor about Mr Faisal’s whereabouts.  When Mr Mollah told the presiding member that Mr Faisal was sick the Tribunal got the information for the purpose of s 424(1). 

22                  According to the appellant, the Tribunal failed to have regard to this information, because its reasons make no reference to the fact that on 9 January 2004, Mr Faisal was present and willing to give evidence.  Ms Avenell also pointed to the Tribunal’s statement set out at [11] above. 

23                  Counsel for the respondent, Mr Potts, submitted that none of the ‘information’ the appellant relied on under this ground of appeal was obtained or ‘got’ by the Tribunal.  First, Mr Potts argued that the fact that Mr Faisal attended the hearing of 9 January 2004 and was sworn was not information obtained by the Tribunal.  He submitted that these were simply events the Tribunal was able to observe.  Secondly, the fact that Mr Faisal was able to give evidence on another day was simply information proffered by Mr Mollah at the conclusion on the hearing on 16 January.  As such, Mr Potts contended this information was not ‘got’ by the Tribunal. 

24                  Ms Avenell accepted the submissions of the respondent that in order for s 424(1) of the Act to be enlivened, there must be a positive act on the part of the Tribunal.  Ms Avenell referred the Court to Abedi v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 186 (‘Abedi’).  In Abedi, Merkel J stated at [20]-[21] that:

‘A claim in relation to s 424(1), similar to that made by the applicant in the present case, was considered in Applicant F v Minister for Immigration and Multicultural Affairs [2001] FCA 304.  In that case Carr J rejected the applicant's submission that the word "get" in s 424(1) meant "obtained" or "received" and therefore included country information supplied to the RRT on behalf of the applicant together with the applicant's submissions to the RRT.  Carr J stated at ([31]-[32]):

"In my view, this submission misconstrues s 424(1). I think that it is sufficiently plain that s 424 deals with information which the Tribunal gets (in the sense of 'obtains') by its own initiative.  The context suggests that it is not intended to refer to information proffered by the applicant – s 423 deals with that.

The heading to s 424 reads 'Tribunal may seek additional information'.  The heading is not part of the Act [see s 13(3) of the Acts Interpretation Act 1901 (Cth)].  However, pursuant to s 15AB [and bearing in mind the matters referred to in s 15AB(3) of the Acts Interpretation Act] I consider that the headnote to s 424(1) is capable of assisting in its meaning and that I may give consideration to it.  I do so in reaching the interpretation which I have put on the word 'get' immediately above.  In my opinion, the duty imposed on the Tribunal by s 424(1) to 'have regard' to information only relates to such information as it obtains on its own initiative pursuant to that subsection.”

In my view Carr J was correct in concluding that s 424(1) dealt with information that the RRT obtains on its own initiative pursuant to s 424 and therefore does not extend to information given by an applicant to the RRT for the purposes of the application. In the present case the country information was proffered by Macpherson & Kelley in response to a request made by the RRT that the applicant provide any "new documents or written arguments" he would like the RRT to consider.  I do not regard that factor as resulting in the information being information obtained by the RRT on its own initiative.  Rather, the request was for the applicant to provide any further information which he wished the RRT to consider.

If the applicant's contention in respect of the operation of s 424(1) is correct, the RRT would be obliged to have regard to any information proffered by an applicant, irrespective of its relevance, merely because it was received or obtained by the RRT.  It is difficult to see what legislative purpose is served by that interpretation.  One can, however, readily accept that where the RRT exercises its inquisitorial power under s 424 to "get" information, in the sense stated by Carr J in Applicant F, the requirements of s 424 should attach to the exercise of that power.  Applying Carr J's approach to the Macpherson & Kelley submission, it is not information to which the RRT was required to have regard under s 424(1).’

[emphasis added]

25                  In Pojani v Minister for Immigration & Multicultural Affairs [2002] FCA 1283 (‘Pojani’), Madjwick J dealt with a claim that the Tribunal had failed to comply with s 424(1) of the Act by failing to have regard to information submitted by the applicant wife concerning her fear of persecution as a political target.  His Honour stated at [33]:

‘I accept the submissions of counsel for the respondent as to the proper construction of s 424 of the Act.  That is, that the word "get" means information that the Tribunal obtains on its own initiative and not material received or obtained from other sources, such as the applicant in the proceedings: see Applicant "F" v Minister for Immigration and Multicultural Affairs [2001] FCA 304 per Carr J at [31]-[32], which was cited with approval by Merkel J in Abedi v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 186 at [20]-[22].’

[emphasis added]

See also, Perera v Minister for Immigration and Multicultural Affairs [2002] FCA 743 per Ryan J at [44] and Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 976 per Sundberg J at [27].

26                  I accept the respondent’s submission that the information that Mr Faisal was present at the hearing on 9 January 2004 and was sworn to give evidence was not obtained or ‘got’ by the Tribunal.  This ‘information’ was merely something that the Tribunal observed as part of its hearing of the appellant’s application for review.  The Tribunal did not seek it of its own initiative.  On the alternative construction put forward by the appellant it would follow that every time the Tribunal asks a question at a hearing of a review application, it is bound by s 424(1) to consider the information given in response.  This cannot have been the intention of the legislature. 

27                  This conclusion is supported by a consideration of Part 7, Division 4 of the Act, which deals with the conduct of the Tribunal’s review.  The Division clearly provides for the Tribunal to obtain information concerning the issues arising in relation to the decision under review from the applicant and from other sources, including persons other than the applicant.  Pursuant to s 425, an applicant has the right to give evidence at a hearing before the Tribunal (unless the Tribunal is able to make a favourable decision on the papers) as well as the right under s 423 to provide documentary evidence to the Tribunal.  Although the heading to s 424 is not part of the Act (Acts Interpretation Act 1901 (Cth), s 13(3)), it is consistent with the general scheme of the Division that the information with which s 424 is concerned is additional to that provided by the applicant under s 423.  It is also clear that s 424 envisages the additional information being obtained on the Tribunal’s initiative, not least because it is the Tribunal that must make the decision that it considers the information relevant. 

28                  In the present case the question asked of Mr Mollah (see [6] above) does not satisfy the Act’s requirements concerning the manner in which persons may be invited to give information; see s 424B.  Moreover, there is no basis for concluding that it was intended to be an invitation to provide additional information.  Similarly, there is no basis for concluding that such a question, which related to the conduct of the hearing on the relevant day, was regarded by the Tribunal as relevant to the issues in the case as opposed to a purely administrative enquiry.  In my view, s 424(1) was not enlivened in the present case, and the Tribunal did not ‘get’ the information as submitted by the appellant. 

Jurisdictional error

29                  Counsel for the respondent submitted that even if the Tribunal breached s 424(1) of the Act, a breach of that section does not necessarily constitute a jurisdictional error.  In Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 (‘Plaintiff S157’), Gaudron, McHugh, Gummow, Kirby and Hayne JJ stated at [77] that:

‘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.’

30                  In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (‘SAAP’), handed down after the hearing of the present matter, the High Court was concerned with, inter alia, whether a failure to comply with s 424A of the Act constituted jurisdictional error.  Section 424A provides:

‘Applicant must be given certain information

(1)                 Subject to subsection (3), the Tribunal must:

(a)          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

(b)          ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)           invite the applicant to comment on it.

(2)                 The information and invitation must be given to the applicant:

(a)       except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)       if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(3)                 This section does not apply to information:

(a)      that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)      that the applicant gave for the purpose of the application; or

(c)   that is non-disclosable information.’

31                  The majority of the High Court in SAAP held that a breach of the requirements of s 424A was sufficient to constitute jurisdictional error; per McHugh J at [25], [77], per Kirby J at [173], and per Hayne J at [208].  McHugh J stated at [72]-[73]:

‘Jurisdictional error may arise where a decision-maker fails to discharge "imperative duties" or to observe "inviolable limitations or restraints" found in the Act (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 1001 [49]; 207 ALR 12 at 23‑24.).  To determine whether a decision under the Act involves a jurisdictional error, it is necessary to take two steps.  First, it is necessary to determine the limitations and restraints found in the Act.  Secondly, it is necessary to attempt, through statutory construction, to reconcile them with s 474 of the Act to ascertain whether failure to observe any particular procedural or other requirement in the Act constitutes an error which has resulted in the decision-maker failing to exercise or exceeding its jurisdiction.

Section 424A is a statutory formulation of the obligation to accord procedural fairness in the conduct of a review.  The question is whether failure to comply with that section gives rise to jurisdictional error such that the decision of the Tribunal is invalidated.  To answer this question, it is necessary to have regard to "the language of the relevant provision and the scope and object of the whole statute" in order to ascertain whether the Parliament intended that an act done in breach of s 424A is invalid (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 389-391 [91], [93] per McHugh, Gummow, Kirby and Hayne JJ, quoting Tasker v Fullwood [1978] 1 NSWLR 20 at 24.).’

[emphasis added]

His Honour continued at [77] to state:

‘…[B]ecause the Act compels the Tribunal in the conduct of the review to take certain steps in order to accord procedural fairness to the applicant for review, before recording a decision, it would be an anomalous result if the Tribunal's decision were found to be valid, notwithstanding that the Tribunal has failed to discharge that obligation. … If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function.  There can be no "partial compliance" with a statutory obligation to accord procedural fairness.  Either there has been compliance or there has not.  Given the significance of the obligation in the context of the review process (the obligation is mandated in every case), it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act.  Any suggestion by the Full Federal Court in [NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 214]to the contrary should not be accepted.  Parliament has made the provisions of s 424A one of the centrepieces of its regime of statutory procedural fairness.  Because that is so, the best view of the section is that failure to comply with it goes to the heart of the decision-making process.  Consequently, a decision made after a breach of s 424A is invalid.’

[emphasis added]

32                  The same result was reached by Hayne J in stating at [208] that:

‘Where the Act prescribes steps that the Tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid.  Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point.  The Act prescribes what is to be done in every case.’

33                  Section 424(1) of the Act, with which the Court is presently concerned, involves two elements; first, the Tribunal may get any information it considers relevant, and secondly, if it gets such information, it must have regard to that information.  As discussed previously, it is plain that the first element of s 424 does not confer on the Tribunal any obligation to gather information.  In SAAP, Hayne J at [206] contrasted the imperative language of s 424A with the permissive terms in s 424 of the Act.

34                  However, the language of the second element of s 424(1) clearly imposes on the Tribunal an obligation.  The legislature has determined that where the Tribunal exercises its power to gather or ‘get’ information, it must have regard to it.  Section 424(1) therefore obliges the Tribunal in every case where the Tribunal has exercised its power to get information under s 424(1) to have regard to the information.  This is not surprising given that the information the Tribunal is authorised under s 424(1) to get is information that it ‘considers relevant’.  Consequently, the reasons of the majority of the High Court in SAAP must, in my view, lead to the conclusion that a failure to comply with s 424(1) of the Act constitutes jurisdictional error.

35                  However, for the reasons given above, I am of the opinion that the obligation contained in the second element of s 424(1) was not enlivened in the circumstances of this case.

Relevant and irrelevant material

36                  In the alternative, the appellant claimed that the Federal Magistrate erred in failing to find that the Tribunal fell into jurisdictional error in failing to consider relevant material.  The asserted relevant material was that Mr Faisal attended the hearing on 9 January 2004, did not attend on 16 January because he was sick and that he was willing to give evidence on another day.

37                  A decision-maker may fall into jurisdictional error if he or she ignores relevant material or takes into account irrelevant material: Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (‘Yusuf’).  In Yusuf, McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed, stated at [82]:

‘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 been 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) 204 CLR 82).  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 the 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).’

38                  In my view this claim is misconceived.  It obscures the true nature of the appellant’s complaint, which is really that the Tribunal did not make arrangements to hear Mr Faisal’s evidence on another day.  In substance, it is a complaint about procedure not about the lack of consideration of relevant material.  The fact that the witness was not available at the hearing on 16 January 2004 but was willing to give evidence on another day could not have materially affected the Tribunal’s decision. As the respondent submitted, the material could not have told the Tribunal anything about the nature of the evidence that Mr Faisal may have given.  I do not consider that this information was such that the Tribunal was bound to take it into consideration.  This does not, of course, answer the question of whether the Tribunal’s failure to act on the information and provide another opportunity for Mr Faisal to give evidence was a breach of procedural fairness.  This issue is discussed below commencing at [42]. 

39                  Even if the information is regarded as material that the Tribunal was bound to consider, it falls into the category described by Mason J in Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24 at 40 where his Honour said:

‘Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law.  A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.’

40                  The same analysis applies to the appellant’s further submission that the Tribunal took into account irrelevant material.  The basis for this submission was the Tribunal’s statement set out at [11] above in respect of which it was submitted that this erroneous finding demonstrates the Tribunal mistakenly found that Mr Faisal did not attend the hearing of 9 January 2004 and thus took into account irrelevant material. 

41                  This submission must be rejected.  It is clear that the Tribunal made a factual error.  However, the basis of a mistake of fact is not itself an irrelevant consideration.  Thus, the erroneous finding that Mr Faisal was not present on 9 January 2004 did not involve the taking into account of an irrelevant consideration or irrelevant material.  True the Tribunal made an error but, in itself, this does not amount to an error of law, jurisdictional or otherwise;  Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146].  In any event, I accept the contention of the respondent that this erroneous finding did not form the basis of any adverse conclusions or findings made against the appellant. 

Procedural fairness

42                  Counsel for the appellant conceded that in order to succeed on this aspect of the appeal, the appellant must demonstrate that s 422B of the Act does not operate to prevent the application of common law notions of procedural fairness or natural justice.  As such, counsel sought to demonstrate that the ‘matter’ under consideration in this appeal goes beyond the circumstances contemplated by Division 4 of Part 7 of the Act.  Ms Avenell argued that the fact that the witness had attended the earlier hearing date of 9 January 2004 and had been sworn took the ‘matter’ beyond any of the matters contemplated by Division 4 of Part 7. 

43                  Section 422B of the Act provides:

‘Exhaustive statement of natural justice hearing rule

(1)          This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2)          Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.’

44                  While accepting that generally the Tribunal is not required to make inquiries or make specific arrangements for a witness to attend, counsel for the appellant submitted that in the circumstances of this case there was an obligation on the Tribunal, based on the requirement that the Tribunal afford the appellant procedural fairness, to arrange for Mr Faisal’s attendance before the Tribunal to give evidence.  This obligation was said to arise from the exchange between the presiding member and Mr Mollah set out at [6] above.  Counsel for the appellant also emphasised the fact that Mr Faisal did in fact attend before the Tribunal on 9 January 2004.

45                  The written submissions for the appellant made the following point:

‘The Tribunal’s failure to arrange for Mr Faisal’s evidence denied the appellant procedural fairness.  The exchange between the Tribunal member and Mr Mollah indicates that the Tribunal was alert to the fact that there was a witness to support the appellant.  There was an offer from Mr Faisal … to attend on another day.  The Tribunal replied with an ‘ok’.  There was no suggestion that the Tribunal did not accept that Mr Faisal was unwell.  The Tribunal did not say it would not arrange another day.  Despite these, the evidence indicates that the Tribunal did not arrange to take evidence from Mr Faisal.  This situation is not one of the ‘matters’ Division 4 ‘deals with’.’

46                  The appellant’s account does not accurately convey the exchange between the Tribunal and Mr Mollah.  In context, the Tribunal’s ‘ok’ does not indicate assent to the proposal that Mr Faisal attend on another day.  The fact that the Tribunal then said, “Is there anything else, Mr Mollah?’ indicates to me that the Tribunal regarded the matter of the witness as dealt with and moved on asking Mr Mollah if there was anything else.  Significantly, Mr Mollah’s response was, ‘No’.  There was no request that the Tribunal make arrangements to hear the witness and the Tribunal’s concluding remarks, which attracted no protest from the appellant or his advisor, indicated that he would be moving to make his decision on the basis of the material that he had received at that time. 

47                  On the face of it s 422B is unequivocal.  It is not necessary for me to decide if one could ever justify a claim of procedural unfairness in respect of circumstances that are outside the apparent scope of the section.  It is sufficient that I can find nothing in the present circumstances, and in particular in the exchange between the Tribunal and Mr Mollah, to support such a conclusion. 

48                  An applicant may request the Tribunal to call a witness to give oral evidence.  The Tribunal’s obligations in respect of such a request are set out in s 426 of the Act which provides:

‘Applicant may request Refugee Review Tribunal to call witnesses

(1)              In the notice under section 425A, the Tribunal must notify the applicant:

(a)                  that he or she is invited to appear before the Tribunal to give evidence; and

(b)                  of the effect of subsection (2) of this section.

(2)              The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

(3)              If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.’

49                  Section 426 makes it quite clear that the Tribunal is not obliged to grant a review applicant’s request that a witness be called to give evidence even where the request is made in accordance with the statutory procedure.  That being so, there was no breach of the requirements of the natural justice hearing rule as set out in Division 4 of Part 7 arising from the Tribunal’s failure to make arrangements to hear Mr Faisal at some other time. 

50                  For all of the above reasons the appeal must be dismissed with costs.

Associate:

Dated:              9 June 2005