Federal Court of Australia

AVJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1056

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This is an appeal from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) (Federal Circuit Court) on 25 January 2022, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 27 January 2017. The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), made on 3 July 2015 refusing to grant the appellant a protection visa pursuant to s 65 of the Migration Act 1958 (Cth) (Act).

2    The appeal is by way of rehearing under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). Accordingly, the Court must determine whether the Federal Circuit Court was correct to find that the decision of the Tribunal was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541.

3    By an amended notice of appeal dated 22 March 2022, the appellant raised a single ground of appeal as follows:

The primary judge erred in failing to find that the Tribunal’s decision was affected by jurisdictional error by reason of the Tribunal assessing the appellant’s risk of harm by reference to the Emigration Ordinance 1982 (Bangladesh), when that Ordinance had been repealed.

4    For the reasons that follow, the appeal is dismissed with costs.

Background – refusal of protection visa

5    The appellant is a citizen of Bangladesh. He arrived in Australia by boat in April 2013.

6    On 23 July 2013, the appellant applied for a protection visa. It is unnecessary, for the purposes of this appeal, to detail the claims made by the appellant in his application. It is sufficient to note that the appellant claimed to fear harm from the Awami League, the ruling political party in Bangladesh, as a result of being a Sunni Muslim and being involved with the Islamic political party, Hefajat-e-Islam.

7    On 3 July 2015, a delegate of the Minister refused the application.

8    On 9 July 2015, the appellant applied to the Tribunal for review of the delegate’s decision.

9    On 27 January 2017, the Tribunal delivered its statement of decision and reasons, affirming the delegate’s decision not to grant a protection visa.

10    Relevantly for the purpose of this appeal, the Tribunal assessed a matter not raised by the appellant but which the Tribunal considered arose from the materials before it: whether the appellant faces a risk of harm if returned to Bangladesh due to the manner and circumstances of his departure from Bangladesh (illegally by boat). In respect of that matter, the Tribunal stated as follows:

93    While not raised by the applicant as a concern, during the hearing the Tribunal noted the applicant had left Bangladesh by boat. The Tribunal noted that while the Department of Foreign Affairs and Trade (DFAT) Country Information Report on Bangladesh dated 5 July 2016 noted the Bangladesh Emigration Ordinance Act makes it an offence to depart from Bangladesh other than in accordance with the procedures laid down in that Act, the report also states that DFAT is not aware of any cases in which the authorities have enforced those provisions. The Tribunal also noted the report assessed that most returnees, including asylum seekers, are not subject to adverse attention regardless of whether they have returned voluntarily or involuntarily.

94    In response the applicant told the Tribunal he did not know what the situation would be like if he returns and he doesn’t think the government will do anything to him as the main government is OK, although he remains concerned about people who had an issue with the applicant due to his support of Hefajet-e-Islam.

95    On the evidence before it the Tribunal does not accept there is a real chance the applicant will suffer serious harm because he departed Bangladesh in breach of the Emigration Ordinance Act. The Tribunal does not accept there is a real chance the applicant will suffer serious harm because he is a failed asylum seeker if he returned to Bangladesh now or in the reasonably foreseeable future.

11    Before the primary judge, and on appeal, it was common ground that the Tribunal’s reasons were an accurate reflection of the DFAT Country Information Report – Bangladesh (5 July 2016) (2016 DFAT Report). A copy of the 2016 DFAT Report was in evidence before the primary judge. It relevantly stated as follows (emphasis added):

Treatment of Returnees

Exit and Entry Procedures

5.18    The Department of Immigration and Passports conducts immigration checks and maintains a list of convicted criminals and persons wanted by security forces and intelligence agencies. The department mostly uses the list to determine whether or not to issue passports but may also use it to prevent people from leaving the country. Authorities can refuse to issue passports to people who have been convicted of war crimes, moral turpitude or smuggling; where they are suspected of leaving to avoid criminal proceedings; where they are 'likely to engage in activities outside Bangladesh prejudicial to the sovereignty, integrity or security of Bangladesh'; or where doing so would be contrary to the public interest. Credible sources have told DFAT that airport authorities have stopped and questioned senior opposition party members.

5.19     Bangladeshis require a valid passport and visas (depending on the destination country) to depart from Bangladesh. Authorities require permission from both parents before allowing travel by a minor (children under the age of 12). Minors who have passports or whose names are listed on a guardian or parent's passport may travel with only one parent.

5.20     The Emigration Ordinance Act (1982) makes it an offence to depart from Bangladesh other than in accordance with the procedures laid down in the Act. DFAT is not aware of any cases in which authorities have enforced these provisions.

Treatment of Returnees

5.21     Bangladesh accepts both voluntary and involuntary returnees. IOM's Assisted Voluntary Returns and Repatriation (AVRR) program provides assistance to Bangladeshi returnees in cooperation with the returning country and the Government of Bangladesh. DFAT understands that recent returnees from the United Kingdom have not been subjected to any adverse attention by the authorities or others. Although Bangladesh agreed to accept a number of Rohingya returnees during the Andaman Sea crisis in May 2015, Bangladeshi authorities have generally insisted on verifying the identity and Bangladeshi citizenship of returnees (including Rohingyas) before authorising their return.

5.22     DFAT assesses that most returnees, including asylum seekers, are not subjected to adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia.

12    It was also common ground that para 5.20 of the 2016 DFAT Report was incorrect in so far as it referred to the Emigration Ordinance Act 1982 (1982 Ordinance). That law had been repealed on 27 October 2013 when the Overseas Employment and Migration Act 2013 (Bangladesh) (2013 Act) came into operation. Therefore, while the 1982 Ordinance applied at the time of the Applicant’s departure from Bangladesh (noting he arrived in Australia in April 2013), by the time of the Tribunal’s decision in January 2017, the 1982 Ordinance had been repealed by the 2013 Act.

Proceeding in the Federal Circuit Court

13    On 27 February 2017, the appellant lodged an application in the Federal Circuit Court seeking judicial review of the Tribunal’s decision under s 476 of the Act. Subject to various exceptions (which are not presently applicable), s 476 grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under para 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The primary judge concluded that the appellant had not demonstrated jurisdictional error in the Tribunal’s decision (J [79]).

14    The application to the Federal Circuit Court stated numerous grounds of review, none of which is relevant to this appeal. The appeal concerns paras [93] to [95] of the Tribunal’s reasons which arose for consideration by the primary judge in the following manner.

15    When the matter came on for final hearing on 10 August 2021, the appellant was not legally represented. He did, however, file written submissions that the primary judge observed appeared to have had input from a lawyer. In relation to paras [93] to [95] of the Tribunal’s reasons, the appellant submitted that the Tribunal erred because the 1982 Ordinance had been repealed by the 2013 Act. The hearing was adjourned by the primary judge to afford the appellant an opportunity to appoint pro bono legal representation.

16    On 9 November 2021, the Minister filed an affidavit of the Minister’s solicitor, Julian Pipolo, which adduced in evidence a copy of the 2016 DFAT Report and English translations of the 1982 Ordinance and the 2013 Act. The Minister also filed written submissions which stated that the foregoing materials had been filed for the assistance of the Court, but the Minister contended that the correctness of the 2016 DFAT Report was not relevant to the review. In the submissions, the Minister acknowledged that the reference to the 1982 Ordinance in the DFAT Report was erroneous as the Ordinance had been repealed at that time (and, correspondingly, at the time of the Tribunal’s decision).

17    On 29 November 2021, the appellant also filed further evidence and submissions addressing the Tribunal’s reference to the 1982 Ordinance.

18    The hearing resumed on 15 December 2021 and the primary judge dismissed the application on 25 January 2022.

19    In her reasons, the primary judge addressed and dismissed the grounds of review raised in the application. The primary judge then addressed the Tribunal’s findings at [93] to [95] regarding the 1982 Ordinance. The primary judge concluded that the Tribunal was not bound to consider whether the appellant faced a risk of harm because he departed Bangladesh by boat (J [64]-[65]). Further, the primary judge found that the Tribunal’s error in assuming that the 1982 Ordinance was still in force at the time of its decision was immaterial (J [68]). It is convenient to set out the primary judge’s reasons in this regard in full:

63    The applicant did not claim that he was at risk of harm because he had departed Bangladesh by boat. However, the Tribunal considered that this issue arose on the materials before it, which included the Department of Foreign Affairs and Trade report dated 5 July 2016 on Bangladesh. The DFAT report noted at paragraph 5.20 that the Emigration Ordinance 1982 (Bangladesh) made it an offence to depart Bangladesh other than in accordance with the procedures laid down in the Ordinance. The DFAT report did not say what those procedures were. However, the Tribunal proceeded on the assumption that departing Bangladesh by boat was an offence.

64     Apart from the DFAT report, which erroneously said that departing from Bangladesh other than in accordance with the repealed Emigration Ordinance 1982 (Bangladesh) was an offence, there was nothing in the materials before the Tribunal that raised any issue about the applicant’s return. If the Emigration Ordinance 1982 (Bangladesh) is taken out of the equation, as it must be, because it had been repealed, there was nothing before the Tribunal that raised the issue that the applicant was at risk of harm because he departed Bangladesh by boat.

65     It follows that the Tribunal was not bound to consider the question of whether the applicant faced a real risk of serious or significant harm because he departed Bangladesh by boat. The Tribunal’s consideration of that question was superfluous. Any errors of fact that it made in that consideration were also superfluous.

66     I note that the applicant himself told the Tribunal that he did not think the government would do anything to him if he returned because they were “OK”, and his only concern was with people who opposed HEI [Hefajat-e-Islam]. The Tribunal rejected all of the applicant’s claims about HEI. Therefore, on the material before the Tribunal (excluding the incorrect reliance on the Emigration Ordinance 1982 (Bangladesh), but including the applicant’s own evidence, and including the findings made by the Tribunal) there was no issue concerning any risk of harm to the applicant upon his return to Bangladesh.

67    Even if such an issue had arisen, the DFAT report noted, and the Tribunal accepted, that returnees to Bangladesh are not subject to adverse attention, with the possible exception of those who are high-profile political activists, including those who have been convicted of war crimes in absentia. That finding survives the realisation that the Emigration Ordinance 1982 (Bangladesh) has been repealed.

68     It follows that the Tribunal’s error in assuming that the Emigration Ordinance 1982 (Bangladesh) was still in force at the time of its decision is immaterial.

69    The position may have been different if there had been another Act in force in Bangladesh at the time of the Tribunal’s decision that meant that the applicant was at real risk of serious or significant harm upon return to Bangladesh. However, for that argument to succeed, there would have needed to be an obligation on the Tribunal to seek out information that actually ran counter to:

(a)    the applicant’s own concession that he was not at risk from the government; and

(b)     the Tribunal’s finding that (with very limited exceptions that did not include the applicant) returnees were not the subject of adverse attention.

70     Obviously, there was no such obligation.

Appellant’s submissions

20    The appellant submitted that the primary judge erred in finding that:

(a)    the Tribunal was not bound to consider whether the appellant faced a risk of harm because he departed Bangladesh by boat (J [64]-[65]); and

(b)    further, that even if the Tribunal had been bound to consider this matter, its error in relying on the 1982 Ordinance was immaterial (J [68]).

21    The appellant submitted that the following matters lead to this conclusion.

22    First, the appellant submitted that, having in fact decided that a claim arose on the material before it that the appellant may face harm on his return to Bangladesh due to the manner of his departure, the Tribunal was bound to consider this claim. The primary judge therefore erred in reasoning that, because the 1982 Ordinance must be “taken out of the equation” (because it had been repealed), the Tribunal was not bound to consider this aspect of the appellant’s claim (J [64]). The appellant argued that, on the face of the Tribunal’s reasons, the Tribunal in fact considered that the appellant may face harm if returned to Bangladesh due to the manner of his departure (illegally and by boat). Having decided that that unarticulated claim arose on the materials before it, the Tribunal was bound to exercise its jurisdiction lawfully (citing NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] per Allsop J; Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (Appellant S395/2002) at [39] per McHugh and Kirby JJ; Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [77]-[78]). The appellant submitted that this is not a case about whether the Tribunal was required to consider a claim not raised by the appellant (cf NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) at [58]-[61]). Rather, the appellant submitted that once the Tribunal embarked upon the exercise of the power in relation to this issue, it was required to do so in accordance with correct legal principles. The only question is whether the jurisdiction which the Tribunal purported to exercise was exercised lawfully.

23    Second, the appellant submitted that, in assessing that claim by reference to the 1982 Ordinance, the Tribunal failed to consider this aspect of the appellant’s claim for protection by reference to probative material as required under s 414 of the Act. The appellant submitted that it is well established that a factual error can give rise to a jurisdictional error if it amounts to a constructive failure to perform the statutory function conferred on the decision-maker, citing Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (MZYTS) at [34] per Kenny, Griffiths and Mortimer JJ; G v Minister for Immigration and Border Protection (2018) 266 FCR 511 (G v Minister) at [277]-[278] per Mortimer J; Chang v Neill (2019) 62 VR 174 (Chang) at [92] per Maxwell ACJ, Beach and Kyrou JJA. Accordingly, where the Tribunal fails to have regard to critical material in determining an applicant’s claim or, analogously, makes an error of fact which leads it to assess the claim by reference to material that is inaccurate and not probative, this may amount to a constructive failure to exercise its statutory review function, constituting a jurisdictional error.

24    The appellant submitted that, having determined that the materials before it raised a claim that the appellant may face a risk of harm on return to Bangladesh due to the circumstances and means of his departure and proceeding to determine that claim, the Tribunal was required to form the requisite state of satisfaction as to whether there was a real risk of such harm. Lawful formation of this state of satisfaction called for assessment of probative information as to the possible consequences for the appellant if returned, which in substance means an assessment of probative country information. The 1982 Ordinance was not probative information and nor was country information about enforcement practices under that law. It is apparent from the way the Tribunal dealt with the matter that the Tribunal considered that the relevant risk of harm to the appellant was to be assessed by reference to the likelihood of enforcement of the offence provision which rendered the appellant’s departure from Bangladesh, by boat and as an asylum seeker, illegal. The appellant submitted that evaluating the likelihood of enforcement against rates of enforcement of the 1982 Ordinance did not and could not address this element of the appellant’s claim. The Tribunal’s error was therefore a constructive failure to review the appellant’s claim as required under s 414 of the Act.

25    As to materiality, the appellant submitted that, once it is understood that the Tribunal’s error was a failure to review the appellant’s claim as required under s 414 of the Act, it followed that the Tribunal’s error was not an error made within jurisdiction and that it was material. The appellant submitted that the primary judge erred in concluding otherwise.

26    The appellant submitted that it was unnecessary on judicial review for the appellant to establish what the applicable law was in Bangladesh with respect to unlawful departures by asylum seekers in the period since the appellant’s departure or to speculate about the likelihood of enforcement by the Bangladeshi authorities of the applicable law (cf J [69]-[78]). An additional and separate threshold of materiality is not required to be met for every breach of a statutory condition (citing MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 at [33] per Kiefel CJ, Gageler, Keane and Gleeson JJ). Noncompliance with some statutory conditions will result in a decision exceeding its jurisdictional limits without any additional threshold needing to be met, because such errors necessarily incorporate an element of materiality (see, eg, Tsvetnenko v United States of America (2019) 269 FCR 225 at [96]). The appellant submitted that error that results in a decision-maker constructively failing to consider a claim is such an error. Even if materiality did fall to be separately considered, those matters are questions of fact properly to be left for the Tribunal on remittal in assessing the claim which arose on the materials. It is not appropriate for a supervising court assessing materiality to attempt to place itself in the mind of the Tribunal; to do so would bring the court impermissibly into the merits of the decision.

Consideration

27    As noted above, the primary judge concluded (at J [65]) that the Tribunal was not bound to consider the question of whether the appellant faced a real risk of serious or significant harm because he departed Bangladesh by boat, that the Tribunal’s consideration of that question was superfluous and that any errors of fact that it made in that consideration were also superfluous.

28    I respectfully disagree that these aspects of the Tribunal’s reasons are “superfluous”. Although the appellant did not advance a claim to fear harm by reason of having departed Bangladesh by boat, the Tribunal nevertheless considered whether the appellant faced that risk of harm. As McHugh and Kirby JJ observed in Appellant S395/2002 at [39] (emphasis added):

On a number of occasions this Court has said that proceedings before the Tribunal are inquisitorial in nature. The arguments and evidence of the applicants or the Minister cannot narrow the Tribunal’s jurisdiction to investigate the generality of a claim for a protection visa. Whatever the arguments or evidence of an applicant, the Tribunal is entitled, but not bound, to look at the issue generally. If the Tribunal elects to exercise its jurisdiction more widely than the applicant or the Minister has asked, however, it must do so in accordance with law.

29    Having exercised its jurisdiction in the way that it did, in part by reference to whether the appellant would face harm upon return because he departed Bangladesh by boat, the Tribunal was obliged to exercise its jurisdiction lawfully. It is therefore the case that the Tribunal’s consideration of that matter was within the exercise of its jurisdiction and any error in that consideration was capable of being jurisdictional in nature. The relevant question is, therefore, whether there was jurisdictional error in the Tribunal’s consideration of that issue.

30    It was common ground between the parties that an error concerning the content or application of foreign law is an error of fact (see Tahiri v Minister for Immigration and Citizenship [2012] HCA 61; 87 ALJR 225 at [21] per French CJ, Bell and Gageler JJ) and, accordingly, that the Tribunal’s incorrect reference to the 1982 Ordinance was an error of fact, not of law.

31    It is well established that mere factual error will not ordinarily ground judicial review “unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision”: NABE at [53] per Black CJ, French and Selway JJ, citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; see also Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 73 ALD 1 at [114], [116] per Kirby J; CRU18 v Minister for Home Affairs (2020) 277 FCR 493 (CRU18) at [29] per Wigney, Jackson and Snaden JJ. In Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10; 177 ALR 473, McHugh J observed at [35]:

Leaving aside questions of jurisdictional fact, an administrative tribunal will ordinarily not commit a jurisdictional error unless it has made an error of law. A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.

32    In CRU18, the Full Court observed (at [31]) that “[a] discretionary administrative decision that is materially premised upon an error of fact will rarely be beyond the jurisdictional authority of its maker simply because of that error”. Something more is required; the error must illustrate a failure on the part of the Tribunal to discharge its statutory function. As the Full Court in that case observed (at [31]), an error of fact might constitute jurisdictional error in circumstances where, for example, the error gave rise to consideration of irrelevant material, indicated a failure to take account of a mandatory consideration, or involved unreasonableness, irrationality or illogicality (in the senses contemplated in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] per Crennan and Bell JJ), or where it revealed an impermissible denial of procedural fairness.

33    In the present case, the appellant did not contend that the Tribunal’s findings were illogical or irrational. Rather, the appellant submitted that, in failing to consider a claim by reference to probative information pursuant to s 414 of the Act, there was a constructive failure on the part of the Tribunal to perform its statutory function. I do not accept that submission.

34    It is apparent from [93] of the Tribunal’s reasons that it did not seek out or rely on the 1982 Ordinance, but rather it relied on the 2016 DFAT Report. It is permissible for the Tribunal to rely on this type of report as a source of probative country information. A DFAT report of this kind is “intended to be a comprehensive source for decision-makers” (DIJ16 v Minister for Home Affairs [2019] FCA 1038 at [37] per Mortimer J). I reject the appellant’s submission that the 2016 DFAT Report was not probative information by reason of it containing an erroneous reference to the 1982 Ordinance. As the Full Court observed in NAHI v Minister for Immigration [2004] FCAFC 10 (NAHI) at [11]:

There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. … It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review.

35    In DAB16 v Minister for Home Affairs [2019] FCA 2114, Charlesworth J considered the decision-maker’s reliance on a DFAT report that the appellant submitted contained incorrect information. Her Honour observed (at [31]):

The question of whether there is presently a population of people of Hazara ethnicity residing in Lahore is a question of fact, and incontrovertibly so. The appellant cannot succeed in demonstrating jurisdictional error merely by demonstrating that the Authority relied on country information that misstated a fact. … [Counsel’s] submissions amounted to no more than an emphatic disagreement with the Authority’s factual conclusion.

36    In EGW17 v Minister for Immigration [2021] FCA 1177 at [39], Farrell J observed that the Full Court’s conclusion in NAHI at [11] remains good law, and that:

In the absence of demonstrated legal unreasonableness, both the choice and the assessment of the weight of country information is a matter for the [decision-maker]. The Court cannot substitute its own view of the country information even if it had a different view from that reached by the [decision-maker]. If the Court were to make its own assessment of the truth of “country information”, it would be engaging in merits review. The Court does not have power to do that in the context of judicial review applications of this kind.

37    The appellant submitted that the foregoing cases are of limited application in the present matter because they concerned facts of disputed accuracy, as opposed to the present case in which the inaccuracy of the material that was before the Tribunal is now agreed between the parties. I do not accept that submission. The above authorities are an application of the longstanding principle that jurisdictional error does not encompass mere factual error by the decision-maker.

38    It follows that the Tribunal considered the relevant issue (the risk of harm faced by the appellant upon return because he departed Bangladesh by boat) by reference to probative information, notwithstanding that the probative material contained a factual error. In those circumstances, there is no basis for the contention that there was a constructive failure by the Tribunal to perform its statutory function.

39    The appellant argued that a factual error that results in a decision-maker overlooking or failing to have regard to critical factual material can constitute a constructive failure to perform the statutory function conferred on the decision maker, relying upon the principles stated in MZYTS, G v Minister and Chang. I do not accept that the principles stated in those cases are engaged here.

40    The phrase “constructive failure to exercise jurisdiction” is a descriptive expression that covers a range of errors. It is well established that it can cover circumstances where a decision-maker fails to make a finding on “a substantial, clearly articulated argument relying upon established facts”: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ, Hayne J agreeing at [95]. Similarly, it can also cover circumstances where the Tribunal fails to have regard to relevant factual material or takes account of such material in a manner that misconstrues its nature or effect. As the Court observed in Chang on the basis of MZYTS and other authorities (at [92], emphasis added):

The authorities … establish that a factual error may constitute jurisdictional error if it amounts to a constructive failure to perform the statutory function conferred on the decision-maker. As the Full Court of the Federal Court emphasised in MZYTS, this is not a failure to take into account a relevant consideration in the Peko-Wallsend sense. Factual errors that may constitute jurisdictional error include a failure by the decision-maker to have regard to relevant factual material and the taking into account of such material in a manner that misconstrues its nature or effect (the latter may be described as a constructive failure to have regard to the material). Whether such a factual error amounts to a constructive failure to perform the statutory function conferred on the decision-maker will depend on the importance of the material to the exercise of the function and the seriousness of the error. Jurisdictional error will be committed if the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material — properly construed — is an essential feature of a valid exercise of the function.

41    In MZYTS, the nature of the error identified by the Court was a failure by the Tribunal to perform its statutory function in not considering the most recent country information available to it (contained in submissions received from the applicant) (at [45]). The Court found that this error constituted a failure on the part of the Tribunal to form, on the material before it, the requisite state of satisfaction under s 65 (in accordance with its task on review pursuant to s 414 of the Act) (at [31]-[32]). The Full Court articulated the nature of the error as follows (at [34]):

Critically to the determination of the issues raised in this appeal, lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.

42    Contrary to the appellant’s submission, I do not accept that the Tribunal’s reliance upon the 2016 DFAT Report, which contained an inaccurate reference to Bangladeshi law, is analogous to the Tribunal failing to have regard to relevant material placed before the Tribunal (as was the case in MZYTS). While a constructive failure to exercise jurisdiction describes a variety of errors, invariably it must involve a failure on the part of the decision-maker to perform the statutory function. Mere error of fact does not constitute such a failure.

43    In the present case, the Tribunal did not overlook or ignore more up-to-date country information before it concerning the 2013 Act, or otherwise fail to engage with the appellant’s claims. There is no suggestion that the Tribunal was actually or constructively aware that the 1982 Ordinance had been repealed and replaced by the 2013 Act. The appellant did not make a submission to that effect before the Tribunal. On the materials before it, the Tribunal had no reason to doubt the accuracy of the information contained in the 2016 DFAT Report. Rather, the Tribunal relied upon an authoritative source of country information with respect to the relevant issue (the risk of harm faced by the appellant upon return because he departed Bangladesh by boat), which was the only source of information before it.

44    The present case can be contrasted with the recent decision of Wheelahan J in ELN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 931, which concerned the Tribunal’s reasoning on the question whether the visa applicant was a citizen of Vietnam. In considering that question, the Tribunal sought to interpret and apply the Law on Vietnamese Nationality that was passed by the National Assembly of the Socialist Republic of Vietnam on 13 November 2008. Justice Wheelahan found (at [33], [42], [44]) that:

(a)    the Tribunal erred in its application of the Vietnamese Nationality Law;

(b)    that the error, being of the content and application of foreign law, was an error of fact;

(c)    nevertheless, the Tribunal’s finding on the visa applicant’s citizenship could be impugned if the error resulted in the decision being illogical, irrational or unreasonable in the legal sense required to establish jurisdictional error; and

(d)    the Tribunal’s finding was illogical, irrational or unreasonable.

45    In the present case, the Tribunal did not attempt to interpret and apply Bangladeshi law. Rather, the Tribunal placed reliance on conclusions stated in the 2016 DFAT Report. Relevantly, DFAT concluded (at [5.20]) that it was not aware of any cases in which Bangladeshi authorities had enforced the provisions of the 1982 Ordinance. Further, in respect of the treatment of returnees generally, DFAT concluded that (at [5.22]):

… most returnees, including asylum seekers, are not subjected to adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia.

46    On the basis of that information, the Tribunal found that there was not a real chance that the applicant would suffer serious harm because he departed Bangladesh by boat. The Tribunal further found that there was not a real chance that the applicant would suffer harm because he is a failed asylum seeker if returned to Bangladesh now or in the reasonably foreseeable future. The Tribunal’s conclusion was reached within jurisdiction, albeit in reliance on a factual error concerning the 1982 Ordinance.

Conclusion

47    In conclusion, the primary judge was correct to conclude that the Tribunal’s decision was not affected by jurisdictional error. It follows that the appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    12 September 2022