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MIGRATION – Jurisdictional error – English ‘variable standard’ of unreasonableness – fresh evidence

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

STKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 251 (8 September 2004)
Last Updated: 8 September 2004

FEDERAL COURT OF AUSTRALIA


STKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 251


MIGRATION – Jurisdictional error – English ‘variable standard’ of unreasonableness – fresh evidence


Migration Act 1958 (Cth)
Evidence Act 1995 (Cth)
Federal Court Act 1976 (Cth) s 27


SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 502 referred to
SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 303 referred to
Waterford v The Commonwealth (1987) 163 CLR 54 referred to
R v Home Security; Ex parte Rahman [1998] QB 136 referred to
Abebe v The Commonwealth (1999) 197 CLR 510 referred to
Prasad v Minister for Immigration and Ethnic Affairs (1984) 6 FCR 155 referred to
Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 referred to
R v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330 referred to
NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 applied









STKB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 111 of 2004


RYAN, JACOBSON & LANDER JJ
8 SEPTEMBER 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 111 of 2004


On appeal from a single judge of the Federal Court of Australia


BETWEEN: STKB
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: RYAN, JACOBSON AND LANDER JJ
DATE OF ORDER: 8 SEPTEMBER 2004
WHERE MADE: ADELAIDE




THE COURT ORDERS THAT:


1. The appeal be dismissed.
2. The appellant pay the respondent’s costs in the proceedings.










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

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 111 of 2004


On appeal from a single judge of the Federal Court of Australia


BETWEEN: STKB
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: RYAN, JACOBSON AND LANDER JJ
DATE: 8 SEPTEMBER 2004
PLACE: ADELAIDE


REASONS FOR JUDGMENT

Introduction

1 This is an appeal from a judgment of a judge of the Court (Selway J) dismissing an application for a writ of certiorari to quash a decision of the Refugee Review Tribunal ("the RRT") given on 25 August 2003. The RRT affirmed a decision of the Minister made on 2 June 2003 refusing to grant the appellant a protection visa.

2 The proceedings have a long and detailed background. The primary judge did not consider that it was necessary to repeat it. He observed that the evidence and the issues before the RRT were broadly the same as those which had been considered in an earlier application. In the earlier application the appellant sought judicial review of a decision of the RRT to affirm the cancellation of a temporary protection visa. The application was dismissed; see SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 502 ("SHJB"). His Honour’s decision was affirmed by a Full Court; see SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 303 (Carr, Finn and Sundberg JJ).

3 Special leave to appeal to the High Court from the decision of the Full Court was refused on 11 August 2004. Special leave was refused upon the ground that the proposed appeal would not enjoy sufficient prospects of success.

4 In the present proceedings, two jurisdictional errors were alleged before the primary judge. The first was that the decision of the RRT was irrational or unreasonable. The appellant relied before the primary judge upon English authority to support his submission that, in a claim involving human rights, the test of unreasonableness is subject to a variable standard. The second was that the RRT did not have before it "new" or "fresh" evidence which was said to be central to the appellant’s claim. This ground was also supported by English authority.

5 Both of the grounds were rejected by his Honour because the English authorities relied upon by the appellant were contrary to the position established by case law in Australia including High Court authority. Indeed, the variable standard of unreasonableness was rejected by the Full Court in SHJB and it was one of the grounds of the unsuccessful application for special leave. Notwithstanding this, the appellant pursues both of the grounds on which he failed before the primary judge.


The factual background and the RRT’s findings

6 The primary judge did not refer to the evidence in any detail. He observed at [5] that the appellant claimed that he was from Afghanistan but, as in SHJB, the RRT was faced with a dispute as to the appellant’s nationality. There was a large amount of material, some of it obtained by newspaper journalists, alleging that the appellant was a citizen of Pakistan.

7 The RRT had before it the whole of the file relating to the cancellation of the temporary visa. The RRT referred to the material at some length. It is unnecessary to refer to all of the material. It included competing linguistic analyses tending to establish that the appellant was either a Pakistani or an Afghan national, letters apparently provided by the appellant from two people who purported to confirm that he was from Afghanistan and documents obtained by the Australian High Commission from the Pakistan National Database Registration Authority.

8 The appellant gave oral evidence before the RRT. He was unrepresented at the hearing. The contents of the newspaper articles were put to him. He said the stories were fabricated and unreliable.

9 The documents obtained from the Pakistan National Database Registration Authority were also put to the appellant. The presiding member noted that the details in the documents "fitted perfectly" with the information obtained by journalists indicating that the appellant was from Quetta in Pakistan where he had conducted a plumbing business.

10 Having considered all of the evidence, the RRT put to one side certain evidence on which it placed no weight. It gave reasons why it did so. The evidence on which the RRT placed no weight included all of the competing linguistic analyses and the letters purporting to corroborate the appellant’s claim.

11 The RRT accepted a submission by the appellant that it was difficult to make anyone understand the remote areas of Afghanistan where he said he lived. But it was for that reason that the RRT placed great weight on newspaper articles concerning enquiries by reporters who actually went to the area and attempted to identify the village in which the appellant claimed to have lived.

12 The RRT also gave great weight to the article published by a reporter who went to Quetta and had no difficulty in finding people who identified the appellant as a resident of that city.

13 The RRT noted that it was not bound by the rules of evidence and that it was appropriate to give due weight to the accounts given by reporters of their enquiries.

14 The RRT summed up its findings about the enquiries in Quetta as follows:-

"Once again there is nothing in the evidence before me which would suggest a motive from the reporter to have fabricated his account of his inquiries in Quetta. I find it impossible to accept that a number of people, including a person claiming to be the Applicant’s brother, mistakenly identified the Applicant. Moreover, as I put to the Applicant in the course of the hearing before me, I consider it significant that the results of the reporter’s inquiries in Quetta are consistent with the documents which the Department obtained from the Pakistan National Database Registration Authority."


15 The RRT also said:-

"Unless one posits some gigantic conspiracy, the reporter’s inquiries reflect the fact that, as indicated in the documents, a person called [the appellant’s name] did grow up in the Hajiabad area of Quetta, that he has a younger brother called [the brother’s name] and that he was a shopkeeper. This is the same person identified as the Applicant by a number of residents of Quetta, including a person claiming to be the Applicant’s brother [the brother’s name]."


Unreasonableness

16 The appellant’s counsel conceded that he could not, and did not, seek merits review. Nevertheless, he referred to some aspects of the RRT’s process of reasoning to make good the proposition that the decision was unreasonable according to the variable standard accepted by English authority.

17 The short answer to the appellant’s submission is that the proposition for which he contends was rejected by the Full Court in SHJB for reasons which cannot be said to be plainly wrong. Indeed, the Full Court rejected the proposition as a matter of principle. Its decision did not depend upon a consideration of the facts or upon any distinction between jurisdictional and non-jurisdictional facts depending upon a state of satisfaction of the decision-maker.

18 The Full Court’s rejection of the variable standard is dealt with at [24] – [29]. Of particular importance is the statement at [29] that it is not open to the Court at this level to import and superimpose on the Wednesbury standard the English overlay of "relative reasonable satisfaction" which varies according to the degree of interference with human rights.

19 It follows from the refusal of special leave in SHJB that the decision of the Full Court is not plainly wrong and we are bound to follow it. It also follows that the English variable standard of unreasonableness in human rights cases is not part of Australian law.

20 The factual matters to which the appellant pointed have no bearing on whether or not the variable standard should be adopted. Indeed, they show that the principle upon which the appellant relies involves an exercise in merits review which has been held to be impermissible.

21 The appellant addressed two principal factual findings. The first was the failure to give weight to the appellant’s linguistic expert report. That was a report of Mr Jan Mohammad which the appellant submitted ought to have been accepted in preference to the report obtained by the Department from the Swedish firm known as Eqvator.

22 It was submitted by the appellant that Mr Mohammad’s report ought to have been accepted by the decision-maker because it was carefully and cogently presented and the methodology was well reasoned. The Eqvator report was said to lack these features. Neither expert was cross-examined. We do not see how this submission can be anything but a plea for merits review. Moreover, it is difficult to see precisely when, and in what circumstances, the variable standard would require intervention because all unsuccessful applications for refugee status involve an interference with human rights.

23 The second factual matter which the appellant raised was that no weight was given to the letters from the witnesses Mr Ali Yawar Rezaee and Mr Ali Kamali. The RRT gave no weight to their evidence because the letters did not go far enough in corroborating the appellant’s claim.

24 The appellant’s counsel submitted that, because of the variable standard of unreasonableness and the extent to which interference with human rights was involved, the RRT should have contacted the witnesses and asked whether they could give additional evidence.

25 This submission is directly contrary to Australian authority. It is well established that a decision-maker has no duty to make his or her own enquiries in order to make out the applicant’s case; see Abebe v The Commonwealth (1999) 197 CLR 510 at [187] (Gummow and Hayne JJ). There is a limited exception to the rule namely "where it is obvious that material is readily available which is centrally relevant to the decision"; see Prasad v Minister for Immigration and Ethnic Affairs (1984-85) 6 FCR 155 at 170 (Wilcox J); see also Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 558-559 (Black CJ, Von Doussa, Sundberg and Mansfield JJ).

26 We do not consider that the letters from the witnesses enlivened the exception to the general rule. Moreover, as with the first evidentiary issue, we do not see where one can draw the dividing line beyond which investigation is required. The appellant offered no rule of general application and no precise statement of the circumstances in which the duty to investigate would arise. The submission must be rejected as unworkable and contrary to Australian law.

27 The appellant relied on the decision of the Court of Appeal in England in R v Home Secretary; Ex parte Rahman [1998] QB 136 ("Rahman"). He submitted that this was an example of the course adopted in human rights cases in the United Kingdom.

28 In Rahman there was a dispute as to the origins of the applicant and the British Government instituted its own enquiries in villages in Bangladesh. An issue arose as to whether the judge hearing an application for judicial review had correctly admitted into evidence affidavits deposing to the enquiries. The Court of Appeal held that the affidavits had been rightly admitted.

29 Rahman is not authority for the proposition that there is a duty on the decision-maker to make enquiries in an applicant’s claimed country of origin. The case has no application to the present proceedings.


The "Fresh Evidence" ground

30 The primary judge stated at [13] that the second ground of alleged jurisdictional error was that the RRT did not have before it some documentary material which was sought to be placed before the Court. The material consists of signed documents from various people, apparently in Afghanistan. Some of the documents purport to be official. They state that the appellant is who he claims to be and that he is from Afghanistan. The documents have been put before us to support the submission that his Honour was in error in refusing to admit them.

31 His Honour was of the view that the English authority R v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330 (Ex parte ‘A’) does not reflect the law in Australia; see at [19].

32 He stated at [20] that the law in Australia is, as stated by Brennan J in Waterford v The Commonwealth (1987) 163 CLR 54 at 77-78, namely that an appellant cannot supplement the record of the proceeding before the decision-maker merely to demonstrate an error of fact.

33 His Honour observed at [21] – [22] that there are some qualifications to this general principle. However, he did not consider that the present case fell within the exceptions.

34 The central plank upon which the appellant sought to make good the submission that the primary judge was in error was the interference with the appellant’s human rights. Accordingly, the rejection of the first ground of appeal must carry with it the dismissal of this ground.

35 The applicable law was stated recently by a Full Court (Beaumont, Lindgren and Tamberlin JJ) in NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 at [54] as follows:-


"In our opinion, certiorari does not lie where no more appears than that ‘fresh evidence is discovered which could not have been found with due diligence before the trial, where it is apparently credible and would have an important influence on the result’ (West Sussex at 36 per Lord Denning MR). It follows that the fresh evidence here (the existence of the Summons and of the Notice), is irrelevant to any ground on which certiorari could properly have been granted by his Honour in respect of the decision of the RRT, and that if the appellant had sought to lead that evidence before his Honour, his Honour would have been bound to reject it."


36 This would be sufficient to dispose of the second ground of appeal. However, there are two further reasons why it must fail.

37 First, the appellant argued that, by analogy to the principles which govern the reception of fresh evidence under s 27 of the Federal Court of Australia Act 1976 (Cth), the evidence ought to have been admitted because it could not have been obtained by him and it would have produced an opposite result in the RRT.

38 However, it is plain from an examination of the documents that, even if this principle applies, the documents cannot satisfy the test. This is because they do no more than re-engage on the issue of fact which the RRT found adversely to the appellant.

39 Second, the appellant submitted that the fresh evidence was illustrative of the evidence which the RRT would have obtained if it had made its own enquiries in Afghanistan. The failure to do so was said to constitute jurisdictional error.

40 We have said above that there was no duty on the RRT to make its own enquiries of the two witnesses referred to by the appellant. Nor could there have been any such duty to make enquiries in remote villages in Afghanistan. No clear principle was put forward by the appellant identifying the circumstances in which the alleged duty was enlivened.


Orders

41 It follows that the appeal must be dismissed with costs.


I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan, Jacobson & Lander JJ.



Associate:

Date: 8 September 2004



Counsel for the Appellant: Dr Churches



Solicitor for the Appellant: Boylan & Co



Counsel for the Respondent: Ms Maharaj



Solicitor for the Respondent: Australian Government Solicitor



Date of Hearing: 20 August 2004



Date of Judgment: 8 September 2004
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