FEDERAL COURT OF AUSTRALIA

SZQGA v Minister For Immigration & Citizenship [2012] FCA 593

THE COURT DECLARES THAT:

1.    In recommending to the first respondent that the appellant was not a person to whom Australia has protection obligations, the second respondent failed to observe the requirements of procedural fairness.

THE COURT ORDERS THAT:

2.    An injunction be granted restraining the first respondent from relying upon the recommendation of the second respondent.

3.    Cost be reserved with liberty to apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Summary

1    In 2010 the appellant entered Australia at Christmas Island by boat. His subsequent application for refugee status to the first respondent, the Minister for Immigration and Citizenship (Minister), through a delegate, was denied. The appellant’s request for independent merits review under a process established by the Minister was unsuccessful when the second respondent, the independent merits reviewer, confirmed the delegate’s decision. The appellant then applied to the Federal Magistrates Court for an injunction preventing the Minister from acting on the assessment and recommendation of the reviewer and a declaration that the assessment and recommendation was legally flawed. The Federal Magistrates Court rejected that judicial review application.

2    The appellant then appealed to the Federal Court of Australia against the decision of the Federal Magistrates Court, and was granted leave to file the appeal out of time on the condition that he could argue only one ground of appeal, namely, that the Federal Magistrate had erred in law in not finding that the independent merits reviewer failed to accord the appellant a fair hearing by failing to take into account the appellant’s answer to questions posed by the reviewer as to his relationship with his aunt and why the appellant, rather than his aunt would be targeted by the Eelam People’s Democractic Party (EPDP).

3    At the hearing of the appeal pro bono counsel for the appellant dealt with the single ground of appeal but also raised two jurisdictional questions, namely, whether the Federal Magistrates Court was apprised of jurisdiction to deal with the judicial review application in the first instance, pursuant to s 476(1) of the Migration Act 1958 (Cth) (Migration Act) and, if so, whether such proceeding was barred by virtue of s 494AA(1)(a) and (b).

4    The Federal Court found that the Federal Magistrates Court was possessed of jurisdiction to hear and determine the judicial review application and that the proceeding was not barred by the Migration Act.

5    The Federal Court, however, found that the appellant had been denied procedural fairness in the course of the review conducted by the independent merits reviewer and that the Federal Magistrate erred in law in not so finding.

6    The Federal Court in particular found that the independent merits reviewer, having asked the appellant a question as to why his aunt had not been targeted in Sri Lanka in the circumstances explained by him, failed to have any regard to the information supplied by the appellant in answer to the question.

7    The Federal Court could not be satisfied that the denial of procedural fairness may not have affected the other findings of fact and ultimate assessment and recommendation made by the independent merits reviewer that the Minister might possibly later rely upon in exercising powers or functions under the Migration Act.

8    Accordingly, the Court upheld the appeal, granted an injunction against the Minister preventing the Minister from relying on the assessment and recommendation of the independent merits reviewer, and made a declaration that the assessment and recommendation was legally flawed.

issues on appeal

9    This appeal concerns a Sri Lankan national who in 2010 entered Australia by boat at Christmas Island and unsuccessfully claimed refugee status after doing so. His application to a Federal Magistrate for relief in the nature of judicial review, against the first respondent, the Minister for Immigration and Citizenship, and in respect of the assessment and recommendation of the second respondent, the independent merits reviewer, prepared for the Minister’s purposes, was dismissed. This appeal is against the decision of the Federal Magistrate and, by order of this Court, is confined to one reasonably narrow ground of appeal, although in the course of hearing the appeal certain jurisdictional issues were raised.

10    As a result, the issues on the appeal are whether:

(1)    the Federal Magistrates Court had jurisdiction under s 476(1) of the Migration Act to consider the application for judicial review;

(2)    the judicial review proceeding in the Federal Magistrates Court (and so the substantive appeal) is barred under s 494AA; and

(3)    (assuming jurisdiction) the Federal Magistrate erred in law by failing to find the reviewer denied the appellant procedural fairness.

request for refugee status

11    On 11 May 2010, the appellant arrived at Christmas Island, apparently having travelled from India by boat. He was first interviewed by an officer of the Department of Immigration and Citizenship at Christmas Island on 29 May 2010.

12    By an application lodged on behalf of the appellant by his migration agent on about 6 August 2010 the appellant claimed refugee status – that is to say, protection as defined by the 1951 United Nations Convention Relating to the Status of Refugees, as amended by the 1967 Protocol (Refugees Convention). By Art 1A(2) of the Refugees Convention, a “refugee” is any person who:

owing to well-founded fear of being persecuted for reasons 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

13    In his request for refugee status the appellant indicated that: he was born in Sri Lanka; he was ethnic Tamil and Hindu; and he feared returning to Sri Lanka. As to why he feared returning to Sri Lanka, he stated:

I fear that the police, CID [Criminal Investigation Division], EPDP [Eelam People’s Democratic Party], navy and the Sri Lankan army will arrest kill me on suspicion of supporting the LTTE [Liberation Tigers of Tamil Eelam].

14    In his request the appellant further indicated that:

    He left Sri Lanka in 1996, when he was a boy, with his family as he feared that he would be arrested and killed by the agents of CID, police, navy, the EPDP and the Sri Lankan army.

    The authorities suspected him of supporting the Liberation Tigers of Tamil Eelam (LTTE).

    The LTTE opposed the government of Sri Lanka.

    His father was a technical expert. When their area was under LTTE control in about 1990, his father was forced to teach LTTE supporters in technology. He unwillingly helped LTTE manufacture helicopters and aircraft in Jaffna.

    The EPDP, an armed group who supported the Sri Lankan armed forces, forced his father to work for them from 1990. They assisted the armed forces to defeat the LTTE. His father informed the LTTE that the EPDP abducted him. He mentioned several members of the EPDP by name. Two of them were brothers who were later shot by the LTTE.

    His parents then escaped to Colombo in 1994 to escape the EPDP. The army searched for his father at the time on suspicion of supporting the LTTE.

    The LTTE helped his family flee to India in 1996 where they remained until he left India in April 2010. He and his family lived in a refugee camp in India from 1996 until April 2010 when he left.

    He or his family had been told by Tamils they knew who arrived in India in 2005 that the EPDP would kill them because they had in their possession a photograph of his family, including him, taken at a wedding ceremony in 2005.

    He then planned to leave India. His travels were organised by a smuggler to whom he paid 5 Lakhs.

15    By letter and attached refugee status assessment (RSA) record, dated 27 August 2010, the appellant was advised that an officer of the Department of Immigration and Citizenship had determined that he was not a refugee as defined by the Refugees Convention. The attached RSA record appeared to accept his claims that he was who he said he was, born in Sri Lanka, was a Tamil and a Hindu and had left Sri Lanka with his family when he was still a boy and had lived in a refugee camp in India with his family before travelling to Australia and arriving on Christmas Island on 11 May 2010. The RSA record discussed country information that recognised that many people had died in the conflict between the government and the LTTE.

16    So far as fear of reprisals by the EPDP should the appellant return to Sri Lanka the RSA stated:

The claimant stated that his…[family] had all travelled…to Colombo in 1990 to get away from the EPDP. The claimant stated that he remained behind…with his aunt and claims to have travelled to India by boat in 1996. The claimant stated that his father had departed in 1993 and the rest of the family had stayed until 1996 when they departed for India. The claimant stated that his Aunt’s relatives were living in his village in Jaffna, as they had remained behind when he and his family left the area.

After stating that he didn’t know where his father had gone, the claimant confirmed that as stated at his first interview, that his father had gone to the Maldives when he departed Sri Lanka, in 1993, although he couldn’t explain why he had gone to the Maldives instead of directly to India. The claimant stated that his father had lost contact with the family until 1999, when he found them through a cousin who lived in India. The claimant stated that his father has been working in India as an electronic tradesman.

The claimant stated that his family had kept in contact with his Aunt’s relatives in his home village, by telephone, usually five or six times each year. The claimant stated that his Aunt’s son was married in India, in 2005, and that relatives had returned to his home village with a family wedding photo. The claimant stated that he believed that the EPDP family members of the two dead brothers had found out about the wedding photo through other members of the village and would, therefore, be able to recognise the family if they returned it to the village. The claimant stated that his aunt had advised the family that the EPDP had stated that none of the claimant’s family would be allowed to live because the family of the two EPDP brothers who were killed wanted to take revenge on them.

17    The officer who completed the RSA record and who determined that the appellant was not entitled to the protection of the Refugees Convention formed a number of views that led to the conclusion that the appellant was not entitled to protection, including:

    While the claimant would have concerns about living in a government controlled area, after living in a LTTE area for most of his life in Sri Lanka, the United Nations High Commissioner for Refugees (UNHCR) reported over 200,000 Tamils had returned to different areas in the Northern Province, including the Jaffna area, to resettle and restart their lives.

    The claimant had never been involved with the LTTE or any other Tamil organisations and had never been harmed or mistreated when he was in Sri Lanka and taking into account that he was 12 years old when he departed Sri Lanka with his family and had lived in India for the past 14 years then, apart from his claims of his father’s forced support for the LTTE almost 20 years earlier, there is insufficient evidence to be satisfied that the Sri Lankan Army, police, CID, the navy, the EPDP or any other Tamil group would “suspect the claimant of being connected to the LTTE”.

    Specifically, “apart from being questioned in line with normal official security procedures, that the claimant would not be of interest to the authorities if he were to return to Sri Lanka”.

    In any event, it would not be unreasonable for the claimant to consider relocating to another part of Sri Lanka, different from where he and his family had earlier resided.

    Taking into account country information in relation to recent developments in the country in regards to the continued improvements to the resettlement process, infrastructure, economy and the political situation in Sri Lanka over the past year, particularly in the first six months of 2010, and the evidence in the case, the officer of the Department was not satisfied that the claimant had a well founded fear of persecution from the Sri Lankan authorities and forces in Sri Lanka.

    Therefore the officer was not satisfied that an essential and significant reason he may be harmed is for at least one of the reasons in the Refugees Convention.

    Therefore, the claimant was not a refugee.

Independent merits review

18    The appellant then took up the opportunity offered to him by the Department to have the RSA record and assessment reviewed by an internal non-statutory departmental administrative process known as “independent merits review”. That review process was initiated by the appellant’s migration agent and lawyers by letter dated 3 October 2010. The appellant’s representatives confirmed his position and made a number of points about the assessment, including:

    The officer failed to give sufficient weight to the ongoing harassment and detention of suspected LTTE members in Sri Lanka and failed to adequately consider the reasonably foreseeable future when reaching that determination. The letter included additional country information said to be relevant to that assessment.

    While it was not suggested that a return to civil war was imminent, the evidence “shows that the current government continues to be fearful of any hint of LTTE activity, while at the same time refusing to take the steps needed to ensure genuine reconciliation and lasting peace”.

    In all these circumstances, the appellant’s fears of future harm should be accepted as well-founded and he should be granted refugee status.

19    By further letter from his representatives sent by email on 1 February 2011 to the second respondent, who had been appointed as the independent merits reviewer, the appellant made further points:

    The officer of the Department did not give sufficient weight for the type of work carried out by the claimant’s father against his will. A person such as the claimant’s father providing technology support to the LTTE could not be equated to an ordinary person who made a contribution in the area, as his father had a specialised skill.

    The father’s activities were not disputed by the officer in the assessment.

    As to the reasoning of the officer that the Sri Lankan authorities would not suspect the claimant of being connected to the LTTE because he left the country at the age of 12 and his immediate family were not members of the LTTE and no one had suffered harm, this reasoning was erroneous for a number of reasons. Firstly, the claimant did not need to establish that he had suffered harm in the past to establish a well-founded fear of persecution. His father did not provide ordinary assistance to the LTTE. He was a specialist technical trainer who directly trained LTTE supporters. Plus there was a high likelihood that the claimant would be imputed to share the political opinions of his father.

    Further country information has supported the conclusion that the situation in Sri Lanka is neither stable nor durable, especially for Tamils residing in Sri Lanka.

    The claimant originates from the Northern Province and left the country at a very young age due to his father’s involvement with the LTTE. He has no close family links in Sri Lanka at present, except for an elderly aunt who he claims is frail due to her age. It is now approximately 14 years since the claimant left Sri Lanka. There have been many changes in Sri Lanka during his absence. Though the war is over, there is a real chance that those who have had LTTE connections or are perceived to hold or imputed to hold those views opposing the Government of Sri Lanka would be targeted by the authorities and dealt with severely. The claimant’s father had no ordinary involvement with the LTTE, he was a technical expert who contributed towards constructing aircrafts and helicopters. On the basis of that evidence the Government has “zero tolerance” for those who are perceived to hold views opposing the Government.

    There was a real and substantial possibility of the appellant suffering systematic harm and harassment amounting to persecution or even death, due to his father’s involvement and for the other reasons mentioned.

    Therefore, the appellant has a well-founded fear of being persecuted for Convention reasons should he return to Sri Lanka.

20    By a report dated 15 April 2011, the reviewer found that the appellant did not meet the criterion for a protection visa set out in s 36(2) of the Migration Act, because he was not a person to whom Australia has protection obligations under the Refugees Convention.

21    The reviewer took account of the information referred to in the RSA review, other information on file and information received from the appellant during an interview by the reviewer on 25 January 2011, which was conducted with the assistance of an interpreter and in the presence of the appellant’s representative.

22    In the interview the appellant appears to have recounted much of the information earlier provided to the Department, including that:

    His father was forced to work for the LTTE, assisting in technical teachings and that he classed his father as an electronic technician and that he had assisted with technical matters and in aircraft manufacture. He was not sure, however, of his father’s level of involvement.

    That he knew of his father’s involvement with the LTTE from when he was six or seven years of age.

    That the EPDP attempted to recruit his father and that his father later told the LTTE of the attempt by the EPDP to recruit him and he identified two members of the EPDP who were later killed by the LTTE. He believed that the men were killed as a result of his father telling the LTTE about the EPDP approaching him.

    He did not know the timeframe of when his father worked for the LTTE or any details, or when the brothers were killed. But as a result of the brothers being killed, his father and mother initially went into hiding and then his father fled Sri Lanka as he was in danger of revenge from the EPDP. His father left Sri Lanka in 1993. At that stage his mother who had been hiding with his father returned to Jaffna and lived with the family. At the time his parents left, the appellant lived with his aunt and siblings and his aunt had continued to live in Jaffna since 1990.

    In 1995, the appellant’s mother and siblings and himself were obliged to move because the Sri Lankan army was coming to their area.

    That he, with his mother and siblings, left Sri Lanka illegally in 1996 and went to India. This was after his mother approached the LTTE and asked them for assistance to leave Sri Lanka, which the LTTE organised.

    That he and his family resided in a refugee camp in India from 1996 to 2000 and in 2000 the family reunited with the father due to an entry in a refugee camp registry. They then lived in an area outside the refugee camp from 2000 until the present time.

    Between 1996 and 2010, he has had no contact with the LTTE or the EPDP, nor to his knowledge, had his parents.

    That he believed the older brother of the brothers who were killed is now a senior member or a high officer of the EPDP and is seeking to take revenge on his family due to the death of his brothers in the 1990’s.

    He has not returned to Sri Lanka since 1996, nor have his parents or siblings. His aunt still resides in his family’s old area. He believes that he is in danger because his father informed the LTTE about the two brothers who were then killed.

    He had not had any contact with the LTTE between 1991 and 1996 and they have not come looking for his father.

23    The reviewer also asked the appellant about his fears arising from the circulation of the photograph of the family from the wedding, including questions about the position of his aunty. In the subsequent report, the merits reviewer wrote:

25.    The reviewer asked [the appellant] about his previous submissions that he believes that he personally is at risk because members of the EPDP were shown a photo of a wedding that he attended in 2005 in India. This was apparently from his aunty’s house…. He believes that members of the EPDP may have been able to identify him from that, and that he personally would be targeted. The reviewer asked for more information about how members of the EPDP were able to access a photo that was at his aunty’s house of a wedding in 2005, and how they would have known that the photo was available. [The appellant] said that he believes someone, someone that he does not know, told the EPDP about the photo, and that the EPDP came to the house and took the photo by force.

26.    The reviewer asked how they would be able to find the photo, and [the appellant] responded that it would be quite easy to find a photo because it would be in the wedding album. [The appellant] said in response to this, his aunty has told his parents that if anyone went back to Sri Lanka they would be killed because the brother of the EPDP members that were murdered is now a high officer.

27.    [The appellant] said he was only able to give limited information about this alleged occurrence as he was not there when the photo was taken and has not spoken to his aunty directly about this matter. The information that he has has come from his parents.

28.    The reviewer asked [the appellant] about the possibility of him being targeted, as he left when he was very young, and the photo was taken over five years ago when he was in his early twenties, he is now aged 26. [The appellant] said that he was a young man at the time and his image would be the same as it was in the photo.

29.    The reviewer asked why the members of the EPDP would not have targeted the aunty, as it would seem logical if they were going to target members of [the appellant’s] father’s family, as they must have known she was related to him in order to get the photo. Also, his aunty is older and on her own, therefore she could be very vulnerable. [The appellant] could not explain why they had not targeted his aunty.

24    The reviewer made a number of findings and provided reasons for them. The reviewer accepted, once again, that the appellant was who he said he was, a Tamil from Sri Lanka whose religion is Hindu, and that he resided in and left Sri Lanka at relevant times. The reviewer then made a number of findings as follows:

    That it is likely that the appellant’s father “was involved by force with the LTTE prior to his leaving Sri Lanka”.

    That it is likely that the appellant’s father was involved as a technical teacher, due to his technical background.

    That the reviewer did not accept that the appellant’s father provided information to the LTTE that led to the killing of the two brothers. This is because “according to [the appellant’s] evidence, his father was involved by force, not by alliance with the LTTE, and therefore it is not accepted that he would provide information identifying members of the EPDP voluntarily”.

    The reviewer, however, added that, even if his father did, “it is not accepted that the LTTE would act on such information without further clarification”.

    Therefore, the reviewer was not satisfied on the materials that there was any causal link between the two alleged events and so the EPDP would not have perceived any causal link between their attempt to recruit the appellant’s father and the subsequent death of the two brothers, given the limited information provided.

    The reviewer also found that the appellant’s claims to have been targeted by the EPDP due to his father’s connection with the “alleged assassination of two EPDP members” had not been substantiated. This was because “the reviewer does not accept that there is a relevant link between [the appellant’s] father’s actions and the alleged death of the EPDP members”.

    In the alternative, if it were true, “the reviewer is not satisfied that [the appellant] himself would be persecuted if returned to Sri Lanka because of this alleged event”. This is because he was a young child at the time and not involved in any way and the EDPD would not pursue a matter from so long ago having regard to current country information.

    In relation to the appellant’s evidence that his aunt said that a photo of him from 2005 was taken and used to identify him, the reviewer found this was not established as having occurred. This was because “there is a lack of any relevant information as to whom, when or why people would enter his aunty’s house and take such a photo”.

    However, even if it were accepted that the photo had been taken, the reviewer did not accept that it had been taken in the circumstances or for the reasons claimed or that the incident had any connection with the alleged incidents of 1990, or that gave rise to real chance that the appellant would be at risk of harm from the EPDP now or in the foreseeable future.

    The reviewer, however, accepted that the appellant made himself believe what he had been told by his parents in relation to the photo being taken, but the event may have been exaggerated or even fabricated by the aunt or his parents for reasons unknown to the reviewer.

Judicial review of the independent reviewer’s assessment

25    Disappointed at this outcome, the appellant then sought what might generally be called “judicial review” in respect of the recommendation of the independent merits reviewer in the Federal Magistrates Court of Australia. As the Federal Magistrate explained in his decision dismissing the application (SZQGA v Minister for Immigration and Anor [2011] FMCA 672 at [6]) the appellant applied to the Federal Magistrates Court pursuant to s 476(1) of the Migration Act, having regard to the decision of the High Court of Australia in Plaintiff M61/2010E v The Commonwealth of Australia; Plaintiff M69/2010 v The Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 (Plaintiff M61), for orders to the following effect:

(1)    A declaration that the recommendation of the reviewer was not made in accordance with law.

(2)    An injunction restraining the Minister from relying upon the recommendation of the reviewer.

(3)    A declaration that in recommending to the Minister that the appellant was not a person to whom Australia has protection obligations, the reviewer failed to observe the requirements of procedural fairness.

26    At the hearing, the appellant only relied on grounds 1(a), (b), (e), (f) and (g) (alleging denial of procedural fairness) and ground 3 (alleging error of law) of the application for judicial review, which were in the following terms:

Ground 1

The Independent Protection Assessment Reviewer failed to accord procedural fairness to the applicant.

a     The Reviewer relied on independent country information (at [73]) in considering whether the applicant was likely to be subject to persecution for a convention reason upon return to Sir Lanka.

b.     This information was not put to the applicant.

…

e.     The Reviewer failed to accord the applicant a fair hearing by failing to take into account the applicant’s answer to questions, posed by the reviewer, as to his relationship with his ‘aunt’ and why the applicant, rather than his ‘aunt’, would be targeted by the EPDP (at [29] and page 16 of the transcript).

f.     The Reviewer found (at [70]) that the applicant’s father did not provide information to the LTTE that led to the killing of two members of the EPDP.

g.     That matter was not raised with the applicant during the hearing.

Ground 3

The Independent Protection Assessment Reviewer erred in law by misunderstanding the test to be applied in determining whether:

a.    the applicant met the criterion for a protection visa in s36(2) of the Migration Act 1958; and

b.     Australia owed protection obligations to the applicant under the Refugees Convention for the purposes of s195A of the Migration Act 1958.

Particulars

i.     The Reviewer concluded that the applicant ‘is not likely to be subject to persecution for a convention reason’;

ii.     in reading that conclusion, the Reviewer found that the applicant is not a member of a group that is likely to be singled out.

27    In relation to the matters raised in grounds 1(a) and (b), the Federal Magistrate was satisfied that the adverse nature of country information was clear from the face of the document the parties had and it was for the appellant to satisfy the reviewer that he was a person to whom Australia owed protection obligations.

28    As to ground 1(e) concerning the position of the aunt, the Federal Magistrate considered the reviewer’s reasons for decision should not be read with an eye attuned to the perception of error and that, in [29] of the reviewer’s report, it seems very probable that the reference to the appellant’s failure to “explain”, were shorthand for “could not explain adequately” because the use of the word “could” next to the verb “explain” seems to denote that some explanation was proffered but was not satisfactory. The Federal Magistrate added that if he were wrong about this and what had occurred was that the reviewer had misunderstood the appellant, then it was an error “within jurisdiction”, because, whilst it might have informed the reviewer’s views about the appellant, it could not be shown that it was a significant reason for those views and so did not invalidate the determination made.

29    In relation to [29] of the report, the transcript of the information actually provided by the appellant to the reviewer, as set out at [10] of the Federal Magistrate’s decision, was as follows:

The transcript of the relevant part of the discussion about the aunt is found at [T16]:

‘GT:     How is your aunty connected to you? Whose sister is it?

INT:     His mother’s mother and the auntie’s mother are sisters.

GT:     So that’s quite a long connection from your father. Why would they approach your auntie about this issue?

INT:     Because someone has told the EPDP that she had the family photo so that’s when they came to her house to get the photo and asked the questions.

GT:     If someone was going to try and kill you or injure you because of your connection to your father why wouldn’t they do so to your auntie because of her connection to your father?

INT:     He said that his auntie is not connected to his father and he is his son and the person they are angry about so to get revenge they would get his sons and not the aunt.’

30    On the face of it, the statement at [29] of the reviewer’s report, that the appellant “could not explain why they had not targeted his aunty” is not correct and not a fair rendering of what in fact he said. Through the interpreter, the appellant plainly said that “his auntie is not connected to his father and he is his son and the person they are angry about so to get revenge they would get his sons and not the aunt”.

31    It might be that what the reviewer wrote in [29] of the report was the reviewer’s understanding of what the appellant had said in answer to the questions put to him, and that the explanation was considered no explanation at all. However, to so conclude involves a degree of speculation. The appellant’s position was clear: his aunt was not sufficiently connected to his father and the sins of the father would be visited on the sons; that is why the aunt had not and would not be targeted. That was what was conveyed to the reviewer, but not what the reviewer took account of. In effect, what the appellant said in relation to a question evidently considered relevant was ignored by the reviewer.

32    As noted, even though the Federal Magistrate accepted, at [13], that the reviewer could perhaps be taken simply to have meant “could not explain adequately”, he also further considered that if he were wrong about the construction of what the reviewer wrote, he was of the view that the error made was one “within jurisdiction” because, whilst it might have informed the reviewer’s views about the appellant, it cannot be shown that it was a significant reason for those views.

33    As to the reviewer’s findings that the issue concerning the appellant’s father not providing information to the LTTE that led to the killing of the two members of the EPDP were concerned (grounds 1(f) and (g)), the Federal Magistrate accepted that the question had been raised with the appellant by the reviewer and not received any relevant assistance from him, it was open to the reviewer to have doubts about whether the events in question had occurred because of the father’s actions.

34    In relation to the question whether the wrong test had been applied by the independent reviewer in determining whether Australia owed protection obligations to the appellant (ground 3), the Federal Magistrate was satisfied that the reviewer was aware of the “real chance” test, as it has been called, having regard to other passages in the report and findings and that use of the expression “likely” in the challenged portions should be read in that context and there was no “jurisdictional error”.

agreed facts

35    In substance, the following additional facts are agreed by the parties.

36    The appellant’s claims for protection were assessed in accordance with the RSA and the independent merit reviewer’s procedures which are described in Plaintiff M61.

37    Following the independent merit reviewer’s recommendation on 15 April 2011, the Department undertook a further assessment of whether any other international treaty obligation was engaged in the appellant’s case.

38    The Department wrote to the appellant by letter dated 1 February 2012 giving notification of the Department’s international treaties obligation assessment outcome.

39    On 25 November 2011, a media release was issued on behalf of the Minister confirming the government’s announcement in October 2011 that “eligible boat arrivals who do not pose risks will be progressively considered for community placement on bridging visas while their asylum claims are assessed”. The media release also announced that “the government would also be moving to a single protection visa process for both boat and air arrivals, using the current onshore arrangements for application and independent review through the Refugee Review Tribunal system”.

40    On 19 March 2012, a media release was issued on behalf of the Minister advising that the new single protection visa process for both boat and air arrivals would apply from 24 March 2012. The media release advised that:

    under the new framework, people who arrive by boat will have their claims heard under a statutory process with merits review by the Refugee Review Tribunal (RRT) on appeal, instead of the previous independent merits review system; and

    the new system would apply to asylum seekers who arrive in Australia from 24 March 2012 as well as those who arrived prior to that date but had not yet had a primary assessment interview.

41    On or about 12 April 2012, the Minister exercised his power under s 195A of the Migration Act to grant the appellant a Temporary Safe Haven (subclass 449) visa and a Bridging (subclass 050) visa.

42    The Department wrote to the appellant by letter dated 12 April 2012 advising him of the grant of the visas.

jurisdictional issues

43    As noted above, at the hearing of this appeal two jurisdictional issues arose. It is appropriate to determine them before dealing with the ground of review in respect of which the order extending the time for appeal was initially restricted, as explained further below.

44    The s 476(1) issue: The first jurisdictional question is one that arose in the course of oral argument by reason of the Minister’s reliance on the recent decision of the Full Court in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 (SZQDZ) where the Court (Keane CJ, Rares and Perram JJ) held that s 477(1) of the Migration Act, which imposes time limits on applications to the Federal Magistrates Court where an application is made for a remedy to be granted in the exercise of the Court’s jurisdiction under s 476(1), was not applicable to the proceeding in that case.

45    Section 476 of the Migration Act provides as follows:

476    Jurisdiction of the Federal Magistrates Court

(1)     Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

(2) The Federal Magistrates Court has no jurisdiction in relation to the following decisions:

(a)     a primary decision;

(b)     a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;

(c)     a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C;

(d)     a privative clause decision or purported privative clause decision mentioned in subsection 474(7).

(3)     Nothing in this section affects any jurisdiction the Federal Magistrates Court may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975.

(4)     In this section:

primary decision means a privative clause decision or purported privative clause decision:

(a)     that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or

(b)     that would have been so reviewable if an application for such review had been made within a specified period.

46    The jurisdiction conferred on the Federal Magistrates Court by s 476(1) is limited in that, while it is the same original jurisdiction as the High Court has under s 75(v) of the Constitution, it is only conferred “in relation to migration decisions”.

47    The expression “migration decision” has a special meaning as it is defined by s 5 of the Migration Act as follows:

migration decision means:

(a)     a privative clause decision; or

(b)     a purported privative clause decision; or

(c)     a non-privative clause decision.

48    Section 5 further defines the expressions “privative clause decision” and “non-privative clause decision” as having the meanings given by s 474(2) and s 474(6), which relevantly provide:

(2)     In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

…

(6)     A decision mentioned in subsection 474(4), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection 474(5), is a non-privative clause decision.

49    Section 474(4) provides that for the purposes of s 474(2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the table following, is not a privative clause decision. Section 474(5) provides that:

(5)    The regulations may specify that a decision, or a decision included in a class of decisions, under this Act, or under regulations or another instrument under this Act, is not a privative clause decision.

50    The Minister, having regard to the reasoning in SZQDZ, accepts that the assessment and recommendation of the reviewer in a case such as the present is not itself a “migration decision” and indeed is not a “decision” for the purposes of the Migration Act at all. However, on behalf of the Minister, it is submitted nonetheless that the reviewer’s assessment and recommendation, while not a “migration decision” should be considered one that relates to a migration decision, albeit a decision not yet taken, but which might be taken. Specifically, in the written submissions made on behalf of the Minister it is said that an application seeking an injunction against the Minister restraining him from relying upon the recommendation of a reviewer “is an application in relation to a migration decision, namely a future decision as to whether or not to exercise powers under s 46A or s 195A of the Migration Act”, and so the Federal Magistrates Court has jurisdiction to hear and to determine such an application under s 476(1) of the Migration Act.

51    It is clear that, if the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution then it may entertain an application for the constitutional writs of prohibition, mandamus and injunction against an officer of the Commonwealth as provided for in that provision, in a proceeding for such relevant relief in a proceeding in relation to a migration decision. That is the type of jurisdiction that the appellant here asked the Federal Magistrates Court to exercise in the judicial review application in this case. In Plaintiff M61, the High Court held that the plaintiffs were able to maintain such a proceeding, although only declarations were considered available by way of remedy for the error of law and denial of procedural fairness found by the Court.

52    In Plaintiff M61, at [78] the Court observed that:

The Minister having decided to consider the exercise of power under either or both of ss 46A and 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. That the steps taken to inform the consideration of exercise of power may lead at some point to the result that further consideration of exercise of the power is stopped does not deny that the steps that were taken were taken towards the possible exercise of those powers. Nor does it deny that taking the steps that were taken directly affected the claimant's liberty.

This explains why the Court came to the decision that it did in finding that the assessment and recommendation of the reviewer was amenable to review for legal error and denial of procedural fairness, because they were integral to the decision-making process that the Minister had announced in relation to refugee claims. Such a finding, however, does not mean that the assessment and recommendation of the reviewer was itself one “in relation to migration decisions”, unless it can be said that the expression “migration decisions” in the context of s 476(1) includes potential or future decisions.

53    What is made plain by Plaintiff M61 is that, under the RSA Manual reflecting the Minister’s announced procedures, if the outcome of the independent merits review is in the negative, an opportunity would be given to a person such as the appellant to provide any new or additional information which he or she wishes the department to take into consideration. A further assessment will then be undertaken by the department as to whether any other international treaty obligation was engaged in the particular case. If no other international obligation is engaged, the process for removal of the person from Australia would begin: Plaintiff M61 at [44]. The process of removal then occurs under s 198 or s 199.

54    As noted above, a “migration decision” is defined to mean a “privative clause decision” or a “purported privative clause decision” or a “non-privative clause decision”. A privative clause decision is an expression defined by s 474(2) and means a “decision of an administrative character” made, proposed to be made or required to be made as the case may be under Migration Act, or under a regulation or other instrument made under the Migration Act (whether in the exercise of a discretion or not), other than a decision referred to in subs (4) or (5). By s 474(3), the reference to a “decision” includes a reference to a wide range of activities include, in para (g), the “doing or refusing to do any other act or thing” and in para (h) “conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation”.

55    In this regard, the “lifting of the bar” under s 46A, as indeed the act of removing a person from Australia under s 198, would appear to constitute, at the least, the doing of a thing. It might also be said that the independent merits review process constitutes the “taking of evidence or the holding of an inquiry or investigation” which is “preparatory” to the making of the removal of a person from Australia, although this might well be intended to be a description of something itself done under an enactment and not, as here, under a departmental administrative practice.

56    Arguably, the judicial review proceeding commenced by the appellant in the Federal Magistrates Court in this case is in relation to a migration decision, in the sense that it might lead to either a decision of the Minister to “lift the bar” under s 46A or to the grant of a visa under s 195A, or ultimately would lead to the removal of the appellant under (presumably in this case) s 198 of the Migration Act.

57    There are, however, a number of findings made by the Full Court in SZQDZ which may be thought not to support this analysis or the submission of the Minister that the proceeding of the appellant in the Federal Magistrates Court is within jurisdiction. First, the Court rejected the Minister’s submission that the application in the Federal Magistrates Court for an injunction against the Minister was a claim “in relation to” a “decision” of the reviewer within the meaning of s 477(1). Section 477 is the provision setting the time limit for the commencement of such proceedings. Unlike the circumstances in Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; (2007) 228 CLR 651, where the plaintiff’s application for mandamus sought to replace a decision to refuse a visa with a decision to grant it, the Full Court pointed out that the applicants in SZQDZ sought an order that the Minister refrain from making a decision which takes into account the recommendation made by the independent merits reviewer. The Full Court stated at [30]:

The only relief sought by the application in the Federal Magistrates Court in relation to any decision relates to a future possible decision of the Minister. Even if the reviewer’s assessment or recommendation can be regarded as a ‘decision’ in some extended sense of the term by virtue of the extended meaning of that term under s 474(3)(h) of the Act, the application for injunctive relief is not for a remedy in relation to a decision because the Minister is not obliged to take it into account at all. Unlike Bodruddaza, the present applications do not seek to quash or correct the assessment or recommendation of the reviewer much less replace them by the decision of the Minister.

58    Secondly, contrary to the Minister’s submission in SZQDZ that s 477(1) applied to the applications to the Federal Magistrates Court, the Court held that the reviewer’s assessment and recommendation was not a “migration decision” to which the time bar applied because it was not a “decision” for the purposes of the Migration Act at all. In finding this, the Court rejected the Minister’s argument that the reviewer’s assessment and recommendation was a “decision of an administrative character made, or proposed to be made…under this Act” within the meaning of s 474(2). The Court, at [34], relying on what the High Court said in Plaintiff M61, observed that:

The Minister, as the only person with power to make a decision under ss 46A and 195A, is not bound by anything in the reviewer’s assessment or recommendation. The Minister has no obligation to exercise the powers under ss 46A or 195A. Nor does he have any obligation to take the reviewer’s assessment or recommendation into account in deciding whether, and if so how, to exercise those powers. In other words, the Minister is entitled to make, or not make, a decision regardless of the reviewer’s assessment or recommendation.

59    The Court, at [36], further observed that in Plaintiff M61 the High Court considered it was unnecessary to consider whether certiorari could be granted to quash a recommendation made by a reviewer because the Minister might, but need not, take account of the recommendations made by the reviewer.

60    Then the Court, in reliance on Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Hot Holdings Pty Limited v Creasy (1996) 185 CLR 149 and The King v MacFarlane; Ex parte O’Flanagan and Ex parte O’Kelly (1923) 32 CLR 518, found, at [39], that a reviewer’s assessment and recommendation had no statutory or other legal force. It only comes into existence because the Minister sought the information to inform his consideration of the exercise of his powers. The Minister is not bound to act on the assessment or recommendation. He did not even have to take them into account at any stage of his consideration. He did not have to make a decision even if the recommendations had been favourable to the applicants. Thus, a reviewer’s assessment and recommendation cannot be characterised as “a decision of an administrative character made or proposed to be made…under [the] Act” within the meaning of s 474(2) of the Migration Act.

61    The Court added, at [40], that the conduct to which the inclusive definition in s 474(3)(h) refers must still have the character required in s 474(2) of “a decision of an administrative character made [or] proposed to be made…under this Act”.

62    The Court further added, at [40] and [41], that the involvement of the reviewer and the steps taken to provide an assessment and recommendation should be treated as “merely procedural steps in the course of arriving at a substantive determination lack the quality of a decision”. The Court, at [43], noted that the “important point” for present purposes was that it would be an “odd result” if serial challenges were available in respect of every step in the process leading to a decision under s 46A, where those processes had no legal force:

To conclude that each such step is deemed to be a privative clause decision by an expansive construction of s 474(3)(h) would be to ignore its absence of legal effect and would not serve any useful purpose. The Minister’s reliance on s 474(3)(h) as supporting his argument that the reviewer’s assessment and recommendation amounted to a privative clause decision must be rejected.

63    At [44], the Court, observing that the Minister can ignore entirely a reviewer’s assessment and recommendation, noted, however, that as in Plaintiff M61 a person such as the appellant in this case might be able to obtain declaratory relief and perhaps an injunction in an appropriate case to ensure that the Minister understands that an assessment or recommendation is affected by demonstrable error if he or she were otherwise minded to act upon them.

64    Having made these various findings, at [45], the Court then observed that:

In the cases of present concern, the applicants have sought an injunction to prevent the Minister or his officers taking into account the reviewer’s assessments and recommendations in any future consideration of the exercise of the powers under s 46A. Their applications for that relief enlivened the jurisdiction of the Federal Magistrates Court conferred by s 476(1) of the Act . That jurisdiction, it must be understood, is relevantly, the same as that of the High Court under s 75(v) of the Constitution. It is a jurisdiction the exercise of which the Courts are not astute to confine.

65    The Court then concluded, at [46], that because the Minister had not yet made any decision and, as Plaintiff M61 decided, need not take account of the assessments and recommendations of the reviewer, “the injunctions sought are not in relation to a migration decision in respect of which an extension of time must be granted because any such decision is yet to be made by the Minister and will be in the future”. Thus, no occasion arose for the Federal Magistrates Court to exercise any power under s 477(2).

66    Thus it appears the Court drew a distinction between the application of s 477 in such a judicial review case, and the breadth of the jurisdiction of the Federal Magistrates Court under s 476(1).

67    As a result, the Minister puts the very particular submission that the application in the Federal Magistrates Court in this case “is an application in relation to a migration decision, namely a future decision as to whether or not to exercise powers under s 46A or s 195A of the Migration Act”, even though it accepts that there is no relevant migration decision in relation to which the time limits imposed by s 477 apply.

68    I accept that in SZQDZ, at [46], the Full Court concluded not that the injunctions sought in the judicial review application by the applicants were not in relation to a migration decision, but that they were not “in relation to a migration decision in respect of which an extension of time must be granted because any such decision is yet to made by the Minister and will be in the future”.

69    In other words, the Full Court appears to have concluded that because no decision had yet been made, no occasion arose for the Federal Magistrates Court to exercise any power under s 477(2). However, because injunctions were sought to prevent the making of immigration decisions under s 46A or s 195A of the Migration Act by the Minister in the future, those applications and the related applications for relief should nonetheless be considered proceedings “in relation to” a migration decision as defined by the Migration Act.

70    It may be contended, as it is on behalf of the appellant, that, in light of the Full Court’s close analysis at [39], and particularly the clear legal propositions that the Minister is not bound to act on any assessment or recommendation, does not even have to take it into account at any stage of his consideration, and does not have to make a decision even if the recommendation has been favourable to the applicants and that there may never be a decision taken by the Minister under s 46A, it is difficult to see how an application for an injunction against the Minister to prevent him from relying on the allegedly flawed assessment and recommendation of a reviewer can be characterised as one “in relation to [a migration decision]”.

71    In this regard it is interesting to note that in Plaintiff M61 the High Court does not appear to have concluded that the rights and interests of the plaintiffs were sufficiently affected for the purposes of granting the relief that the Court granted, on the basis of a possible future exercise of power by the Minister. Rather, at [76] the Court held that the Minister’s decision to consider whether power should be exercised under either s 46A or s 195A affected their rights and interests directly because the decision to consider the exercise of those powers, with the consequential need to make inquiries, “prolonged their detention for so long as the assessment and any necessary review took to complete”. The Court noted that the price of prolongation of detention is a price which some claimants may have paid without protest but stated that that should not “obscure that what was being done … had the consequence of depriving them of their liberty for longer than would otherwise have been the case”. Then at [77] the Court further emphasised: “The right of a claimant to liberty from restraint at the behest of the Australian Executive is directly affected”. In other words, the High Court found that the rights or interests of plaintiffs in circumstances such as those of the appellant here, were directly affected in a relevant way, but not in a way that depended directly upon the possible future exercise of power by the Minister.

72    In the result, the Full Court in SZQDZ appears to have formed the view that the relief sought of injunction to prevent the making of a migration decision was a proceeding that enabled the exercise of jurisdiction “in relation to” a migration decision, albeit one yet to be made under s 46A or s 195A. It might be added that arguably it might also be in relation to a decision to be made under s 198.

73     In the circumstances, notwithstanding that I consider there is force in the appellant’s submissions on this point, I accept that the decision of the Full Court in SZQDZ draws the distinction I have noted, and even if not strictly bound by it I should follow the decision and apply the distinction drawn.

74    It follows that the proposition that the Federal Magistrates Court in this instance lacked jurisdiction under s 476(1) to entertain the appellant’s judicial review application cannot be sustained.

75    The s 494AA issue: This is a question not initially raised on the appeal, but one which has been advanced by the appellant’s pro bono counsel on the appellant’s instructions. In short, counsel submits that the Federal Magistrates Court had no jurisdiction to consider the appellant’s judicial review application and consequently this Court similarly is without jurisdiction to consider an appeal against the decision for error of law, save to determine this issue. Given the fundamental nature of the issue raised by counsel for the appellant, with the instructions of his client, and without objection by the Minister, I should deal with it.

76    Counsel for the appellant first draws attention to s 494AA(1)(a) and (b) of the Migration Act, which he submits bar proceedings of the nature filed in this case in the Federal Magistrates Court, but not the High Court. Section 494AA(1)(a) and (b) provides as follows:

(1)     The following proceedings against the Commonwealth may not be instituted or continued in any court:

(a)     proceedings relating to an offshore entry by an offshore entry person;

(b)     proceedings relating to the status of an offshore entry person as an unlawful non-citizen during any part of the ineligibility period.

77    As to para (a), the expression “offshore entry” is defined by s 494AA(4)(b) to mean an entry into Australia that occurs:

(a)    at an excised offshore place; and

(b)    after the excision time for the offshore place concerned.

78    An “excised offshore place” is defined by s 5 of the Migration Act to include, amongst other places, the territory of Christmas Island.

79    By s 5 an “offshore entry person” is a person who:

(a)    entered Australia at an excised offshore place after the excision time for that offshore place; and

(b)    became an unlawful non-citizen because of that entry.

80    An “unlawful non-citizen” by s 5 has the meaning given by s 14 which says that a non-citizen in the migration zone who is not a lawful non-citizen is a unlawful non-citizen.

81    The parties agree that the appellant first entered Australia at an excised offshore place, namely Christmas Island, and that as a result he is an offshore entry person for the purposes of s 494AA of the Migration Act.

82    The parties also agree that the appellant was and continued to be an unlawful non-citizen at material times until he was granted a bridging visa under the Migration Act and released from immigration detention on 12 April 2012.

83    Counsel for the appellant contends that the judicial review proceeding in the Federal Magistrates Court (whereby the appellant sought both a declaration that the recommendation of the reviewer that the appellant not be recognised as a refugee was not made in accordance with law, and an injunction restraining the Minister from relying on that recommendation) is properly characterised as a proceeding “relating to” his offshore entry as an offshore entry person for the purposes of s 494AA(1)(a). In this counsel contends that, having regard to the purpose of the appellant’s entry into Australia at Christmas Island, namely to seek acknowledgement of his status as a refugee, there is the appropriate link between the “proceedings” and the “offshore entry” to enable the Court to conclude that the proceeding is one “relating to” the appellant’s offshore entry.

84    As to para (b), it is not in dispute between the parties that the appellant was at material times an “offshore entry person”. It is also agreed by the parties that the appellant was, at material times, up until 12 April 2012, an unlawful citizen during the “ineligibility period”. The expression “ineligibility period” by s 494AA(4)(b) means the period from the time of the offshore entry until the time when the person ceases to be an unlawful non-citizen.

85    Counsel for the appellant again contends that having regard to the purpose of the appellant’s entry into Australia – for the purpose of claiming refugee status – there is an appropriate link between the “proceeding” in the Federal Magistrates Court and his “status” as an offshore entry person as an unlawful non-citizen during the ineligibility period to enable the Court to find the proceeding is one “relating to” that status.

86    The Minister accepts that the appellant’s purpose in seeking to enter Australia was to obtain recognition of his status as a refugee within the meaning of the Refugees Convention, but rejects the characterisations of the judicial review proceeding in the Federal Magistrates Court as one “relating to” either his offshore entry for the purposes of para (a) or his status as an unlawful non-citizen during the ineligibility period for the purposes of para (b). On behalf of the Minister, it is submitted that the proceeding is simply one relating to the recommendation of the reviewer and the prospective exercise of the Minister’s powers under s 46A and s 195A and nothing more.

87    Counsel for the appellant submits that each characterisation of the proceeding contended for by the appellant is reinforced by the Minister’s Second Reading Speech on the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Bill 2001 (Cth) in the House of Representatives on 18 September 2001, when, referring to “people who arrive unlawfully at one of the territories beyond the migration zone”, the Minister at the time, the Hon P Ruddock, MP said:

Related provisions in the bill will preclude the institution of legal proceedings relating to such people in any court—apart from the High Court of Australia.

Counsel emphasises the unconditional value of the expression “will preclude the institution of legal proceedings”. Counsel submits that s 494AA(2) reinforces this view in that it provides the section has effect “despite anything else in the Act or any other law”, which would include s 39B of the Judiciary Act 1903 (Cth). The only exception is that s 494AA(3) makes it clear that the section is not intended to affect the jurisdiction of the High Court under s 75 of the Constitution.

88    Counsel for the appellant also refers to the decisions of French J (as he then was) in Applicants WAIV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1186 (WAIV) and WAJC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1631 (WAJC) which he submits raised similar issues resolved in a similar way to that now contended for.

89    As to his latter submission, I accept the Minister’s submission that the decisions in WAIV and WAJC are clearly distinguishable from the appellant’s application to the Federal Magistrates Court and the appeal against that decision on the ground of error of law. The Minister submits that in WAIV, the applicants were transitory persons (as that term is defined in the Migration Act) who were seeking injunctive relief against their removal from Australia and French J, at [31], observed that the question for determination was “whether these proceedings are, within the meaning of s 494AB(1)(d), proceedings relating to the removal of a transitory person from Australia under the Act”. Justice French answered that question in the affirmative, at [31], as even though the applicants’ primary objective was to require consideration of their applications for protection visas, it was necessarily incidental to that objective that the applicants not be removed from Australia, and that relevantly to s 494AB(1)(d) it was the injunctive relief against their removal that was claimed and which fell within the scope of that provision.

90    As to WAJC, the Minister submits the applicant had been rescued from a vessel which sank in the vicinity of Ashmore and Cartier Reefs and he had been taken to the Territory of Christmas Island and accordingly he was an offshore entry person for the purposes of the Migration Act. The applicant was subsequently taken from Australia to Nauru, purportedly pursuant to s 198A(1) of the Migration Act. He was later brought back to Australia from Nauru, pursuant to s 198B(1) and as a result he also became a transitory person within the meaning of the Migration Act. The applicant sought final relief, which included a permanent injunction preventing his removal as well as his release from immigration detention, and interlocutory relief of a similar nature. Justice French, at [24], noted it was not in dispute that the applicant was an offshore entry person, being a person who had entered Australia at an excised offshore place, and who became an unlawful citizen because of that entry. While the applicant claimed he was not a transitory person because it was alleged the exercise of the power under s 198A of the Migration Act, read in light of the requirements of s 6A of the Immigration (Guardianship of Children) Act 1946 (Cth), was conditioned upon the existence of ministerial consent, French J, at [27], found that s 494AA bars proceedings in any court “relating to the exercise of powers under s 198A”. His Honour, at [27], therefore concluded that the Court could not look behind the exercise of the powers under s 198A in order to determine whether the applicant was a transitory person. Justice French, at [28], thereby concluded that as the Court must assume the applicant was a transitory person, the Court had no jurisdiction to entertain the application as it related to the detention of a transitory person and was barred by s 494AB.

91    As to the Parliamentary statements of the Minister at the time, the Minister submits that not all proceedings in relation to an offshore entry person are barred by s 494AA (other than proceedings in the High Court under s 75 of the Constitution) and it is only “certain legal proceedings”, being those set out in paras (a)-(d) of s 494AA(1), and this is clear from the Explanatory Memorandum in relation to the Bill at the time.

92    The Minister further contends that in the very recent decision of the Full Federal Court in SZQDZ, where the applicants, like the appellant here, had commenced a proceeding in the Federal Magistrates Court for an injunction to prevent the Minister from taking into account a reviewer’s assessments and recommendations in any future exercise of the powers under s 46A of the Migration Act, the Court held, at [45], that the applications for such relief enlivened the jurisdiction of the Federal Magistrates Court, conferred by s 476(1) of the Migration Act and that this Court is therefore bound by this decision to find that the Federal Magistrates Court had jurisdiction to determine the appellant’s application.

93    I should note, however, that the jurisdictional question now raised on behalf of the appellant does not appear to have been directly raised for consideration by the Court in SZQDZ. There are also other aspects of the reasons in SZQDZ, as discussed below, which cause me to question whether, on other grounds the Federal Magistrates Court does not have jurisdiction under s 476(1) in a judicial proceeding of this type.

94    But dealing first with the s 474AA issues, I am not satisfied that it is open to argue that the appellant’s judicial review proceeding in the Federal Magistrates Court should be characterised as either a proceeding “relating to an offshore entry by an offshore entry person” or one “relating to the status of an offshore entry person as an unlawful non-citizen”, substantially for the reasons advanced by the Minister and set out above. The proceeding before the Federal Magistrate did not relate to the offshore entry or to his status as an unlawful non-citizen but rather related to the lawfulness, putting it generally, of the reviewer’s recommendation provided for the Minister’s purposes under s 46A and s 195A of the Migration Act. The fact that the appellant was, at material times, an offshore entry person and an unlawful non-citizen were not directly relevant to the issues raised in those judicial review proceedings.

95    In so finding I accept that the expression “relating to” is a broad one, as the appellant submits it is. As observed by French CJ and Hayne J in Travelex Ltd v Federal Commissioner of Taxation of the Commonwealth of Australia [2010] HCA 33; (2010) 241 CLR 510 (Travelex) at [25], such phrases can be used in a variety of contexts in which the degree of connection that must be shown between the two subject matters joined by the expression may differ. Their Honours, at [25], referred approvingly to what Hill J had said in HP Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126; (2005) 143 FCR 553 at [35] in relation to the phrase “relates to”, that the connection must be relevant and usually a remote connection would not suffice. His Honour added the sufficiency of the connection or association will be a matter for judgment which will depend, among other things, on the subject matter of the enquiry, the legislative history and the facts of the case.

96    In my view, the expression “relating to”, as used in various subparagraphs of s 494AA(1) of the Migration Act, while it may permit a direct or indirect connection, requires a real or substantial relationship between the “proceedings” and the subject matter of paras (a) and (b). In my view, in this case, the relationship contended for between the relevant proceeding is not in substance or reality about the status of an offshore entry person as an unlawful non-citizen during any part of the ineligibility period, as mentioned in (b) of (1) of s 494AA, and the connection contended for is simply too remote to meet that statutory description. For similar reasons, the relevant proceeding cannot be said to be in substance or reality about an offshore entry by an offshore entry person for the purposes of (a) of (1) of s 494AA, and the connection contended for is too remote. The simple fact is that, following the appellant becoming an offshore entry person as a result of his offshore entry into Australia, he sought protection as a refugee. The decision of the reviewer recommended against the grant of such protection. The judicial review proceedings in the Federal Magistrates Court was designed to challenge the lawfulness of that finding. It is not appropriately characterised as a proceeding relating to the appellant’s status as an unlawful non-citizen nor to his offshore entry. It fairly and squarely has to do with his claim for protection under the Refugee’s Convention and the independent merits review process undertaken in respect of that claim. To cast the connection as widely as the appellant contends it should be would run the risk of roping in all proceedings designed to ensure a person in the appellant’s position is able to realise their desire to be recognised as a refugee by Australia, and requiring them to be commenced in the High Court if they are to be pursued. While aspects of Mr Ruddock’s comments in the Parliament tend to support that view, in my view the terms of s 494AA are not so broad in their effect, as indeed the Explanatory Memorandum confirms by identifying only “certain proceedings” as within the purview of s 494AA.

97    Accordingly, I consider that the proceedings before the Federal Magistrate and the proceedings in this Court by way of appeal against that decision for error of law are not proceedings affected by s 494AA(1)(a) or (b) and accordingly there was no bar on the proceeding before the Federal Magistrate and there is no bar on the appeal to this Court.

denial of procedural fairness issue

98    Ground of appeal: The appellant did not immediately appeal against the decision of the Federal Magistrate, as he might have done. Instead, he allowed his circumstances to be the subject of submissions to the Department and Minister through the UNHCR by letter dated 12 October 2011. Only when the outcome of that process appeared not to be favourable to him did he then seek to appeal. At that point, however, the time to appeal under the Migration Act had expired and it was necessary for the appellant to apply for an extension of the period within which to lodge a notice of appeal.

99    By order dated 14 February 2012, I extended the time for filing a notice of appeal to 14 February 2012 and ordered that the notice of appeal attached to the appellant’s affidavit filed 3 February 2012 in support of the application for an extension of time be taken to be the notice of appeal, but that the sole ground of appeal be, in substance, that advanced in ground 1(e) of the judicial review application in the Court below.

100    Accordingly, the sole ground of this appeal, aside from the jurisdictional issues, is whether the Federal Magistrate erred in law in not finding that the independent merits reviewer failed to accord the appellant a fair hearing by failing to take into account the appellant’s answer to questions posed by the reviewer as to his relationship with his aunt and why the appellant, rather than his aunt, would be targeted by the EPDP.

101    Minister’s submissions on ground 1(e): The Minister does not doubt the jurisdiction of the Federal Magistrates Court to deal with an application for judicial review of the kind that the appellant made in this case. The Minister generally supports the reasons given by the Federal Magistrate for dismissing the application for declarations and injunction. This means, generally speaking, that the Minister accepts the effective treatment of the reviewer by the Federal Magistrate as an administrative decision-maker, if not the alter ego of the Minister, when making the impugned recommendation.

102    As a result, on behalf of the Minister, it is submitted that the Federal Magistrate was correct to interpret the reviewer’s statement at [29] as meaning that the appellant “could not adequately explain” why the EPDP had not targeted his aunt and, on the authority of the Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, to find otherwise would be to read the decision with an impermissible eye “attuned to the perception of error”.

103    The Minister submits that if the reviewer’s statement at [29] incorrectly described the appellant’s evidence it had no bearing on the reviewer’s decision in any event. In relation to this proposition, the Minister contends that [29] is found in the reviewer’s recitation of the appellant’s evidence. It is not mentioned in the findings and reasons at [67]-[77] and is immaterial to the reviewer’s recommendations that the appellant not be recognised as a person to whom Australia has protection obligations under the Refugee’s Convention.

104    The Minister contends that for the reasons set out in [70] of the reviewer’s report, the reviewer did not accept the appellant’s claim that his father provided information to the LTTE that led to the killing of two members of the EPDP. The reviewer was also not satisfied that there was any causal link between the alleged events or that the EPDP would have perceived any causal link between their attempt to recruit the appellant’s father and the subsequent death of the two brothers.

105    The Minister submits the reviewer found that the appellant’s claims to have been targeted by the EPDP due to his father’s connection with the alleged assassination had not been substantiated. In the alternative, the reviewer found, for the reasons set out in [71] of the report, that even if there was a relevant link the reviewer was not satisfied that the appellant would be persecuted if he returned to Sri Lanka because of the alleged event.

106    The Minister notes that the reviewer, at [72], did not accept the photo of the appellant had been taken from his aunt’s house, because of a lack of any relevant information as to who, when or why people would enter his aunt’s house to take such a photo. Further, the reviewer did not accept that, even if the photo was taken, it was taken in circumstances that would give rise to a real chance that the appellant would be at a risk of harm from the EPDP in the foreseeable future.

107    Thus, it is clear, the Minister submits, that the statement at [29] that the appellant could not explain why the EPDP had not targeted his aunt played no part in the reviewer’s reasons for her decision. Accordingly, if there was an error by the reviewer in describing the appellant’s evidence in relation to the photograph in this way, it could not be said that the error had affected the exercise of the reviewer’s power so as to amount to “jurisdictional error”.

108    The Minister finally submits that, taking the appellant’s case at its highest, the reviewer gave an incorrect description of the evidence and that does not impugne the fairness of the process or amount to a breach of procedural fairness.

109    Appellant’s submissions on ground 1(e): On behalf of the appellant, counsel raises issues relating to the ground 1(e), as well as jurisdictional questions.

110    Counsel for the appellant notes that the independent reviewer appears to have accepted that the appellant’s fear of harm if he were to return to Sri Lanka was real and refers to the findings of the reviewer at [68] of the report. With that submission I agree. As counsel for the appellant submits, the question was whether such a fear was well-founded.

111    Counsel for the appellant submits that in assessing whether the fear was well-founded the reviewer considered whether the seizure of the photograph, firstly, had occurred, and, secondly, whether it had occurred in the circumstances claimed by the appellant. In finding that even if it had occurred, it had not occurred in the circumstances claimed, the reviewer relied upon the agreed circumstance that the aunt had not been targeted and sought comment from the appellant on this aspect of his claim.

112    Counsel for the appellant accepts that where a misunderstanding of evidence cannot be demonstrated to have affected the exercise of a statutory power, the decision-maker will not commit “jurisdictional error”. But counsel submits that the Federal Magistrate, in advancing and applying this proposition, impermissibly relied upon what was said in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (Yusuf) at 353, as this was a case concerned with the failure to comply with s 430 of the Migration Act, and not the application of the broader common law principles of procedural fairness, as required by Plaintiff M61.

113    Consideration: There is no doubt Plaintiff M61 underpins the judicial review application for a declaration and injunction made in this case to the Federal Magistrates Court. In Plaintiff M61, two citizens of Sri Lanka (called for reasons of anonymity Plaintiff M61 and Plaintiff M69), like the present appellant, entered Australia at Christmas Island without a visa. Like the appellant, they each requested refugee status. Like the appellant, an RSA record was produced denying each that status. Each then requested independent merits review, like the appellant, and the reviewer in each case found they did not meet the definition of a refugee in the Refugees Convention, as occurred in the appellant’s case.

114    Plaintiff M61 then made an application to the High Court under s 75(v) of the Constitution for an order quashing the recommendation of the reviewer and an order requiring reconsideration of the review according to law. As against the Minister the application sought an order restraining the Minister from taking any steps to remove the plaintiff from Australia until the proper determination of the merits review application. Plaintiff M69 separately applied to the High Court pursuant to s 75(v) of the Constitution for declarations that s 46A of the Migration Act was invalid, that the independent merits review scheme was invalid, and so that the request made for refugee status had not been properly determined. The application sought orders directing the Minister to proceed according to law. Each of these applications was referred for further hearing to a Full Court of the High Court.

115    Section 75(v) of the Constitution gives the High Court original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.

116    The Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) noted that s 46A(1) of the Migration Act provides that an application for a visa is not a valid application if it is made by an offshore entry person who is in Australia and is an unlawful non-citizen. By s 46A(2), however, the Minister may, if the Minister thinks it is in the public interest to do so, determine that s 46A(1) does not apply to an application by an offshore entry person for a visa of a specified class. This is colloquially referred to as the power to “lift the bar”. The independent merits review process is intended to assist the Minister in deciding whether or not to lift the bar. The Court also noted that s 195A(2) of the Migration Act authorises the Minister, if the Minister thinks it is in the public interest to do so, to grant a visa of a particular class to a person who is in detention as an unlawful non-citizen under s 189. Section 195A(4) provides that the Minister does not have a duty to consider whether to exercise the power and s 195A(5) requires the power to be exercised only by the Minister personally.

117    The Court said, at [70], that the exercise of the powers given by s 46A and s 195A is constituted by two distinct steps. First, the decision to consider exercising the power to lift the bar or grant a visa and, secondly, the decision whether to lift the bar or grant a visa. The Minister is not obliged to take either step. Section 46A(7) and s 195A(4) expressly provide that the Minister does not have a duty to consider whether to exercise the relevant power, and ss 46A(2) and (3) and ss 195A(2) and (5) make plain that it is for the Minister personally to decide whether to exercise the relevant power.

118    But the Court noted that the Minister had previously announced as a matter of administration or policy that he would have regard to an independent merits review process established by his department in relation to these powers. It said the effect of the announcement was that, instead of removing offshore entry persons from Australia to a declared country under the powers given under s 198A, consideration would be given to exercising the powers given by s 46A and s 195A in every case in which an offshore entry person claimed that Australia owed that person protection obligations. Thus, their Honours concluded that the outcome of that consideration in any individual case would depend upon the result of the processes established by the department in response to the Ministerial announcement. Having decided that he should consider the exercise of power under s 46A or s 195A with respect to every offshore entry person who thereafter claimed that Australia owed that person protection obligations, the Minister required his department to undertake the inquiries necessary to make an assessment and, if needs be, review the conclusion reached.

119    The Court, at [78], further noted that, in circumstances where the Minister had decided to consider the exercise of the power under either or both of s 46A and s 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. That the steps taken to inform the consideration of exercise of power may lead, at some point, to the result that further consideration of the exercise of the power is stopped, does not deny that the steps that were taken were taken towards the possible exercise of those powers. Nor does it deny that taking the steps that were taken directly affected the claimant’s liberty. Thus, consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.

120    Each plaintiff, in seeking what are often called constitutional writs under s 75(v) alleged error of law and denial of procedural fairness as grounds supporting the grant of such writs or orders. There was no allegation of “jurisdictional error” as such, presumably on the view that because the Minister had not yet made any decision under s 46A or s 195A no “jurisdiction”, that is to say “power”, had been exercised by the Minister or constructively by the Minister through the reviewer. The reviewer of course had no separate statutory jurisdiction or power. It is also generally understood that relief under s 75(v) may go for error of law or denial of procedural fairness, something to which I will return.

121    In support of his grounds, Plaintiff M61 noted it was submitted to the reviewer on his behalf that he feared that if he were returned to his country of nationality he would suffer persecution or substantial discrimination amounting to a gross violation of human rights (or both) at the hands of the authorities. The submission stated that the feared prosecution or discrimination was upon a count of six matters including ethnicity and imputed political opinion on account of his brother’s membership of LTTE. The submission went on to state a second and separate claim. It said that country information indicated that the plaintiff also faced a risk of harm on account of his membership of particular social groups of Tamils, including business owners or Tamils who are perceived to be wealthy. The Court held that the reviewer considered the first set of claims but did not examine, and did not refer in his reasons, to the second claim. The Court also noticed that the reviewer did not accept that the plaintiff had left his country, and could not return there, for the reasons he claimed. An important basis for the conclusion that his fears were not well founded was information provided to the reviewer by the Department as country information. None of that information was put to the plaintiff.

122    The Court held that each aspect of the reviewer’s reasons revealed error. First, the determinative determination of whether Australia had protection obligations was to be made according to law, one of the powers whose exercise was being considered was the power to lift the bar under s 46A and permit the plaintiff to make a valid application for a protection visa. Exercise of that power on the footing that Australia owed protection obligations to the plaintiff would be pointless unless the determination was made according to the criteria and principles identified in the Migration Act, as construed and applied by the courts of Australia. The RSA Manual and the Independent Merits Review (IMR) Manual that govern decision-making, including by the reviewer, referred to Australian legislation and relevant case law merely as aids to the interpretation of the Refugees Convention, rather than as binding upon those who made the assessments.

123    Secondly, by failing to address one of the claimed bases for the plaintiff’s fear of persecution meant the Minister was not informed about a matter that bore upon the question that the Minister had asked to be considered: whether Australia owed the plaintiff protection obligations. This constituted a denial of procedural fairness.

124    Thirdly, procedural fairness required the reviewer to put the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff’s claims. The Court noted that particular provisions of the Migration Act which applied in the Refugee Review Tribunal, did not apply to the independent merits review process and that the reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made.

125    Plaintiff M69 alleged the reviewer made the same error of law as was made in the case of Plaintiff M61 by treating the Migration Act and decided cases as no more than guides to determining the issues presented. The plaintiff further alleged that he had been denied an opportunity to deal with adverse country information. He further alleged that after the reviewer had completed her review the plaintiff made a sur place claim, which arose out of the broadcasting of some images of persons in immigration detention who were being moved from Christmas Island to a detention centre on the mainland. This sur place claim was not considered by the reviewer. Put very simply, a sur place claim is one in which a person claims refugee status on the basis of conduct engaged by them in the country in which they currently seek recognition of their refugee status.

126    The Court, as in the case of Plaintiff M61, concluded that the first and second complaints made on behalf of Plaintiff M69 were made good. Thus, the reviewer made an error of law by treating the Migration Act and decided cases as no more than guides to decision-making. Further, while some of the facts concerning country information were sufficiently put to the plaintiff, the reviewer did not put to the plaintiff country information she had before her concerning the treatment of failed asylum seekers returning to Sri Lanka. By not putting the substance of the country information to the plaintiff for his consideration and comment the reviewer denied him procedural fairness. As a result of these findings, the Court did not find it necessary to consider the failure to consider the sur place claim.

127    As no decision had been made by the Minister, and there was no compulsion on the Minister to make any decisions under s 46A or s 195A, the Court considered there was no decision for a writ of certiorari to quash, and no obligation to do anything to be enforced by Mandamus.

128    However, in each matter, the Court, at [105], considered that there existed appropriate circumstances for the making of a declaration that, in recommending to the Minister that the plaintiff was not a person to whom Australia has protection obligations, the reviewer made an error of law, in that they did not treat the provisions of the Migration Act and the decisions of Australian courts as binding, and had also failed to observe the requirements of procedural fairness.

129    Thus, as noted above, in the Federal Magistrates Court in this case the appellant sought injunction against the Minister to prevent the making of a decision relying on the alleged flawed assessment and recommendation of the reviewer and a declaration that the recommendations were flawed on the grounds set out above. Those grounds alleged denial of procedural fairness and error of law. They did not, as noted above, complain of “jurisdictional error”.

130    I mention that “jurisdictional error” was not the subject of the appellant’s application to the Federal Magistrates Court, just as it was not a ground complained of to support the grant of relief in Plaintiff M61. Jurisdictional error is a well-recognised ground for the grant of some of the constitutional writs (for example, prohibition) which has its own special rules. It may be revealed, depending on whether a decision-maker is an inferior court or more general administrative tribunal or public officer, that the decision-maker by committing an error of law or by denying procedural fairness in a way that affects the relevant exercise of power has exceeded their authority or power.

131    The decision of the High Court in Craig v The State of South Australia (1995) 184 CLR 163 (Craig) is a foundation case on the nature of jurisdictional error in this country. Craig involved an application by the State for an order in the nature of certiorari in the order of the District Court to stay criminal proceedings, there being no statutory right to appeal. Ultimately, the Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) held that there was neither jurisdictional error nor error on the face of the record of the District Court proceedings and there was no ground to quash the stay order. At 175-176, the Court noted that certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and error of law on the face of the record. At 176, the Court noted that the grounds upon which certiorari may properly issue glosses over a number of difficulties about the content of those grounds. Their Honours explained that two of those difficulties were of direct relevance in that case where it is argued that the alleged error on the part of the trial judge was either “jurisdictional error” or “error of law on the face of the record”.

132    The Court, at 176, further explained that in considering what constitutes jurisdictional error it is necessary to distinguish between, on the one hand, inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ. The Court, at 177, explained that an inferior court falls into jurisdictional error if it mistakenly assumes or denies the existence of jurisdiction or if it miscomprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. It will fall into jurisdictional error where it makes an order or decision which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction

133    The Court, at 179, however, considered that the circumstances in which other tribunals may be considered to have committed jurisdictional error were quite different. In this context, the Court was plainly intended to include a wide range of administrative tribunals or public officers whom have lawful power to make decisions by reference (at 179) to what Lord Diplock had said in In re Racal Communications Ltd [1981] AC 374 at 383. The Court said, at 179, that if such an “administrative 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.

134    Since Craig, the High Court has held that denial of procedural fairness may also constitute jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 26 CLR 57.

135    Having regard to Craig, however, it is clear that not every error of law will amount to “jurisdictional error”. See also Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 (Ex parte Aala).

136    In Yusuf, the Court had occasion to consider the grounds for judicial review under Pt 8 of the Migration Act, s 476(1) which, as it applied at the time, included the following:

(a)    that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

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

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

…

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

137    In the joint judgment of McHugh, Gummow and Hayne JJ, their Honours, at [82] noted that the different kinds of errors mentioned in Craig may well overlap and the circumstances of the particular case may permit more than one characterisation of the error identified. For example, a decision-maker may have both asked the wrong question and ignored relevant material. Their Honours noted that:

What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.

138    Having regard to s 476(1)(b) of the Migration Act, as then in force, at [83], their Honours said it was important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material it “exceeds its authority and powers”. If that is so, their Honours said the person who purported to make the decision “did not have jurisdiction” to make the decision and the decision was “not authorised” by the Migration Act.

139    Their Honours went on, at [84], to note that in such a case the decision may well, within the meaning of para (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.

140    At [84], their Honours further noted that it must be recognised that the ground stated in para (e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. Their Honours said:

That qualification emphasises that factual error by the Tribunal will not found review. Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which par (e) deals.

141    These decisions serve to remind that the concept of “jurisdictional error” is a broad one under the general law and that in a statutory context such as that discussed in Yusuf it may be equally large. The particular grounds of review in s 476(1) discussed in Yusuf also serve to remind that it is open to Parliament to modify or qualify the grounds upon which traditionally available remedies may be issued – with the constitutional exception being in relation to s 75(v) of the Constitution.

142    Where a particular remedy is only available for jurisdictional error generally understood or a statutory equivalent of it, then the relevant error will need to be shown to go to jurisdiction. But where a particular remedy is available simply for error of law, then the position may be different.

143    It seems to me wrong simply to equate every error of law or denial of procedural fairness as a “jurisdictional error” case. As much as administrative law in Australia seems today to be discussed in terms of jurisdictional error, it remains important to have regard to what remedy is sought in a particular case and what the grounds for obtaining that remedy are – whether one is proceeding under the general law or under a statutory review provision. While jurisdictional error may be a convenient shorthand reference to a range of reviewable errors, care still needs to be taken to identify the particular ground or grounds that allow the grant of a particular general law or statutory remedy.

144    Thus, as noted above, “jurisdictional error” was not alleged in Plaintiff M61. The High Court granted declaratory relief on the basis that the plaintiffs had established an error of law and denial of procedural fairness. As noted above, nor would one have expected jurisdictional error to be claimed given the Minister had not purported to exercise any “jurisdiction” by making or refraining from making any decision authorised by statute and the reviewer did not have any separate “jurisdiction” or statutory power to decide anything.

145    While there may be some debate about the proposition, it would seem generally to be recognised that the remedies of injunction and declaration, at the least, including when sought under s 75(v) of the Constitution, are available to correct an error of law whether or not that error amounts to a “jurisdictional error”. In Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [105], Gaudron J considered that it may well be that an injunction, being a remedy mentioned in s 75(v) of the Constitution, would lie to prevent an officer of the Commonwealth from giving effect to an administrative decision based on an error, “even if that error is not jurisdictional error”. In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 at [211], Kirby J would appear to have accepted (at least did not disapprove) of her Honour’s observations. Plaintiff M61 would appear plainly to support the proposition as the Court did not purport to grant relief on the basis of any alleged jurisdictional error, and the language of jurisdictional error does not appear in the Court’s reasoning.

146    However, whether the demonstration of any error of law or any apparent denial of procedural fairness will automatically entitle a party to the relief of injunction or declaration, if sought, may be doubted. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (Bond), a decision of the Tribunal was challenged on a ground permitted by s 5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) on the basis that “the decision involved an error of law”. Chief Justice Mason at 353 said that a decision does not “involve” an error of law unless the error is material to the decision in the sense that it contributes to it, so that, but for the error, the decision would have been or might have been different. The Chief Justice said:

The critical question on this aspect of the case is whether, but for the alleged error of law on which the respondents rely, the decision might have been different by reason of the possibility that the Tribunal would not have made the findings of fact relating to the settlement in the terms in which they were made.

147    In their joint judgment in Bond, Toohey and Gaudron JJ in a similar way emphasised that, for the purposes of this statutory ground of judicial review, for an error of law to be “involved in a decision” something more than the mere occurrence of error is necessary. Their Honours said, “The error must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute”. Their Honours added that conversely, an error is not involved in a decision if it did not contribute to the decision or if the decision must have been the same regardless of the error. Thus, to show that an error of law is involved in a decision it is necessary, at the very least, to show that the decision may have been different if the error had not occurred.

148    Justices Toohey and Gaudron added, however, that the approach just adumbrated may be compared with the operation of the rules of natural justice where an allegation is made to which a person has had no opportunity to respond. Their Honours referred to what was said in this regard in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 603, where Wilson J said that a deportation order in respect of the appellants should be set aside for want of procedural fairness “with some reluctance” because at most it awarded a very slender technical victory to the appellants. His Honour noted that given the immigration policy it was difficult to see how even an emphatic reversal of the imputation in the successfully impugned reasons for decision could affect the result. However, his Honour considered that, having decided that decisions under the Migration Act must be attended with procedural fairness, “it would frustrate the purpose of the A.D.(J.R.) Act if a breach of the rules of natural justice were to be condoned, in the exercise of the discretionary powers of disposition conferred…merely because the breach was not shown to have affected the decision”.

149    It also seems generally to be accepted that it is no answer, where denial of procedural fairness is demonstrated, to resist relief on the basis the error involved is “trivial”: see for example, Ex parte Aala at [59] (Gaudron and Gummow JJ).

150    However, in Ex parte Aala at [104], McHugh J considered that the breach of the rules of natural justice does not automatically invalidate a decision adverse to the party affected by the breach. His Honour referred to Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145 where the Court said that not every departure from the rules of natural justice at trial will entitle an aggrieved party to a new trial. His Honour in Ex parte Aala added, however, that once a breach of natural justice is proved the Court should refuse relief only where it is confident that the breach “could not have affected the outcome”, recognising that it is no easy task for a court to satisfy itself that what appears on its face to have been a denial could have had no bearing on the outcome. His Honour then considered the facts and took the view that the denial of natural justice found did not affect the outcome in that case.

151    Justice McHugh, however, was alone in his consideration of the facts, the other members of the Court not sharing his Honour’s confidence as to the outcome. Chief Justice Gleeson, for example, at [4] said it could not be concluded that the denial of the opportunity made no difference to the outcome of the proceeding.

152    Generally speaking, however, where grounds for the issue of a constitutional writ, or the making of a declaratory order in lieu thereof (as occurred in Plaintiff M61) arise, the Court has a discretion under s 75(v) to withhold the remedy. In Ex parte Aala, Gaudron and Gummow JJ (with whom Gleeson CJ agreed on this point), at [53], concluded that there is a discretion attending the exercise of the jurisdiction conferred by s 75(v) with respect to prohibition. Their Honours said the first question is whether officers of the Commonwealth in question acted in want of or in excess of jurisdiction. The second is whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the applicant in the course of the administrative proceeding or in other relevant circumstances. Their Honours, at [54], added that so far as mandamus is concerned, it is well settled that it is a remedy which does not go either as of right or as of course, and that the same “certainly is true of the injunction”.

153    Their Honours, however, added, at [55], that the discretion no doubt with respect to all remedies in s 75(v) is not to be exercised lightly against the grant of a final remedy. Their Honours in this regard referred to what her Honour, Gaudron J had said in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [56], to the effect that courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the law which governs their exercise and that “the rule of law requires no less”.

154    There may be a tendency to encapsulate the principles I have just recounted as meaning that, if there is “no practical injustice”, then a remedy should be refused even if the ground of relief contended for is made out. I consider one needs to be cautious in summarising the relevant principles under this catchphrase, as it may lead a court into making an impermissible inquiry into the merits of a decision made and being inclined to substitute its view of what an appropriate outcome would have been instead of allowing an original decision-maker to make the decision entrusted to them. See generally Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298; (2003) 133 FCR 541.

155    In this case, as noted above, I do not consider it was reasonably open to the Federal Magistrate to construe the words of the reviewer, in relation to the appellant’s explanation as to why his aunt had not been targeted, in the way he did. Taking the reviewer’s words at face value and then comparing them to what the appellant actually said, the reviewer either misunderstood or misconstrued the clear evidence of the appellant. Either way the appellant was denied the opportunity to have the reviewer consider his answer to a question evidently considered relevant by the reviewer. That was a denial of procedural fairness, as the appellant had claimed in ground 1(e). It was not an issue advanced as an error of law or as jurisdictional error, although the Federal Magistrate proceeded to deal with the issue as if it were the latter. The Federal Magistrate treated the identified difficulty with the evidence substantively as an instance of “jurisdictional error”, and as one falling “within jurisdiction”. The Federal Magistrate considered the denial of procedural fairness not to be material to the decision ultimately made by the reviewer. He did not think it affected the assessment and recommendation made.

156    I have already noted the close interrelationship between conduct by an administrative decision-maker that may lead to findings of error of law, denial of procedural fairness and jurisdictional error. One can understand how, in relation to any error of law or denial of procedural fairness, legal principle requires some demonstration that the error actually led to a failure to exercise the jurisdiction given, that it was material in some way. Nonetheless, as discussed above, in Bond the Court was able to encapsulate that requirement because the statutory ground of judicial review was that the impugned decision “involved an error of law”. The use of the verb “involved” fortified the dicta that the error must have been material to the decision made. As a general law concept, it is not as evident that the identified error of law must have been material before relief can be granted.

157    The position, as noted above, in relation to denial of procedural fairness is less ambiguous. Ultimately the decision in Ex parte Aala, following Stead, is that denial of procedural fairness, while not falling into a distinct category of its own, will often lead to the effective invalidation of an impugned decision. One can understand how this is so. It will often be extremely difficult to say what decision might have been made by an administrative decision-maker if there had been no denial of procedural fairness in a given case – and it is not for the review court to speculate. To try to reconstruct a decision-making process or to rework the apparent basis upon which a decision has been made, in order to state with any confidence what the result might have been or would have been but for denial of procedural fairness, is likely to be a speculative and unproductive task and certainly one likely to lead to injustice, because the judicial reviewer is not equipped and is not charged with responsibility to make the sort of administrative decision that the primary decision-maker has been set up to determine.

158    In my view, that is particularly so in this case. The detailed reasons of the reviewer leading to the assessment and recommendation prepared for the purposes of the Minister are dismissive of many of the bases of the claims made by the appellant. I have mentioned a number of the findings at [24] above. The reviewer accepted (putting this generally) that the appellant’s father was involved with the LTTE, prior to leaving Sri Lanka, but only “by force” and did not accept that the father provided information that led to the killing of the two brothers – because he had been “involved by force”, not by alliance. The reviewer was not satisfied that there was any causal link between the two alleged events and so the EPDP would not have perceived any causal link between their attempt to coerce the father and the subsequent death of the two brothers, given the limited information provided. The reviewer was not satisfied and did not accept that there was any relevant link between the father’s actions and the alleged death of those brothers. Nothing in the chain of reasoning or particular findings made in the end expressly relied upon the reviewer’s statement in the assessment made that the appellant could not explain why the aunt had not been targeted. But the fact that the reviewer pressed that line of questioning concerning the aunt with the appellant who gave a perfectly understandable response to it, which was then ignored by the reviewer leads me to be quite uncertain as to the significance of the reviewer’s appreciation of the facts overall when completing the assessment and recommendation. Proper attention to what the appellant said may possibly have caused the reviewer to take a different view on the other issues noted above. I cannot say with any assurance that the failure to consider the information properly did influence the outcomes, but nor can I say it did not. In the end I consider this is one of those cases where, a little like Wilson J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550, one might think the same decision-maker may not have made a different decision if they had properly regarded the information supplied, but where the fact that there has been a denial of procedural fairness should, in the event, lead to relief being granted.

159    In these circumstances, I find that ground 1(e) – the sole ground of review of the decision of the Federal Magistrate for error of law – is made out. I consider that his Honour was in error not to find there had been a denial of procedural fairness. As a result there should be relief granted substantially in the terms sought in paras (2) and (3) of the application as set out above in [25].

conclusion and orders

160    I conclude therefore that:

(1)    The Federal Magistrates Court was apprised of jurisdiction to consider the judicial review application made on behalf of the appellant, pursuant to s 476(1) of the Migration Act 1958 (Cth).

(2)    The contentions made on behalf of the appellant that the judicial review proceeding before the Federal Magistrates Court and the appeal in relation to that decision are barred by s 494AA(a) and (b) must fail.

(3)    The Federal Magistrate erred in not finding that the independent merits reviewer denied the appellant procedural fairness by failing to take into account the appellant’s answers to questions posed by the reviewer as to his relationship with his aunt and why the appellant, rather than his aunt would be targeted by the Eelam People’s Democractic Party.

161    In these circumstances, it appears an injunction and declaration should go substantially in the terms sought and referred to in [25(2) and (3)] above, namely:

1.    An injunction restraining the Minister from relying upon the recommendation of the reviewer.

2.    A declaration that in recommending to the Minister that the appellant was not a person to whom Australia has protection obligations, the reviewer failed to observe the requirements of procedural fairness.

162    I will, however, hear from the parties as to the final terms of the orders to be made.

Associate:

Dated:    7 June 2012