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IMMIGRATION - Refugee claim - Challenge to decision of Refugee Review Tribunal refusing protection visa application - Critical issue for determination by the Tribunal was whether the applicant was a national of Afghanistan - Alleged failure of Tribunal to set out findings on all material questions of fact or to refer to evidence or other material on which its findings were based - Whether this failure gave rise to a permissible ground of review - Failure of Tribunal to consider a report by a linguistic expert as to the applicant's country of origin.

Minister for Immigration & Multicultural Affairs v SBAA [2002] FCAFC 195 (2

Minister for Immigration & Multicultural Affairs v SBAA [2002] FCAFC 195 (21 June 2002)
Last Updated: 21 June 2002


FEDERAL COURT OF AUSTRALIA
Minister for Immigration & Multicultural Affairs v SBAA

[2002] FCAFC 195


IMMIGRATION - Refugee claim - Challenge to decision of Refugee Review Tribunal refusing protection visa application - Critical issue for determination by the Tribunal was whether the applicant was a national of Afghanistan - Alleged failure of Tribunal to set out findings on all material questions of fact or to refer to evidence or other material on which its findings were based - Whether this failure gave rise to a permissible ground of review - Failure of Tribunal to consider a report by a linguistic expert as to the applicant's country of origin.

Migration Act 1958 ss 430, 476

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 180 ALR 1 applied

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v SBAA

S217 OF 2001

WILCOX, BRANSON and MARSHALL JJ

21 JUNE 2002

SYDNEY (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA



SOUTH AUSTRALIA DISTRICT REGISTRY
S217 OF 2001





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

APPELLANT


AND:
SBAA

RESPONDENT


JUDGE:
WILCOX, BRANSON and MARSHALL JJ


DATE OF ORDER:
21 JUNE 2002


WHERE MADE:
SYDNEY (HEARD IN ADELAIDE)




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant, Minister for Immigration and Multicultural Affairs, pay any costs incurred by the respondent.

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
S217 OF 2001





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

APPELLANT


AND:
SBAA

RESPONDENT




JUDGE:
WILCOX, BRANSON and MARSHALL JJ


DATE:
21 JUNE 2002


PLACE:
SYDNEY (HEARD IN ADELAIDE)





REASONS FOR JUDGMENT
WILCOX AND MARSHALL JJ:

1 This is an appeal by the Minister for Immigration and Multicultural Affairs against a decision of a judge of the Court (O'Loughlin J) granting judicial review of a decision of the Refugee Review Tribunal. Both the decision of the Tribunal and the respondent's application for judicial review were made before 2 October 2001. Consequently, the review provisions relevant to this case are those in force before that day.

Background

2 The respondent, who has been assigned the pseudonym "SBAA", claimed to be a national of Afghanistan, a Shi'a Muslim and, ethnically, a Hazara. He said his mother tongue was Dari, a language spoken in central Afghanistan, but also in parts of Pakistan and Iran.

3 Although SBAA is the respondent to this appeal, it will facilitate reference to the Tribunal's reasons for decision if we refer to him, throughout, as "the applicant". He was, of course, the applicant before the Tribunal and also before O'Loughlin J.

The Tribunal's decision

4 It appears that, shortly after his application for a protection visa, the Department of Immigration and Multicultural Affairs arranged a linguistic analysis of the applicant's speech. Apparently on the basis of the linguist's report, the Tribunal found he "speaks Dari with a Hazaraji accent and it is clearly his mother tongue". The Tribunal said it also "accepts that the applicant is a Shi'a Muslim as are most Hazaras".

5 The Tribunal further found, on the basis of "country information", that "the Taliban have massacred several thousand Hazaras". The Tribunal said a "wide range of UN sources and international and Afghan NGOs have all taken the view that Hazaras are a vulnerable group". Accordingly, the Tribunal accepted the submission of the applicant's adviser "that Hazaras in Afghanistan are particular targets of discriminatory action by the Taliban ranging from `disappearances', arrests and detention, and other intimidatory treatment. Indeed, it could be argued that the Hazara have been the victims of `ethnic cleansing' by the Taliban&quo;
t;.

6 Notwithstanding these findings, the Tribunal rejected the applicant's claim for a protection visa. The Tribunal was not satisfied the applicant is an Afghan national. Therefore it was not satisfied he had a well-founded fear of persecution by the Taliban. In its reasons for decision, the Tribunal said:

"... there are a number of aspects of the applicant's evidence that lead the Tribunal to the conclusion that the applicant is not being truthful. On the basis of the applicant's own evidence, the Tribunal cannot be satisfied that the applicant is who he says he is. He has not provided credible information fully and frankly that enables the Tribunal to make findings about who the applicant is. Nor is the Tribunal satisfied as to his general credibility. On the evidence made available by the applicant the Tribunal cannot be satisfied that the applicant was born in Afghanistan or that he is a national of Afghanistan."
7 It appears from the Tribunal's reasons that, during the course of the hearing, the Tribunal member put questions to the applicant that were designed to test his knowledge of Afghanistan. He was asked what was a Taskira. He replied that it was a "small notebook ... it was an ID notebook". He said his father had one; he did not. He said his father was supposed to get one for him but "there was fighting and there was no means of getting one". The Tribunal member asked what was on the front cover. The applicant said "there was a picture of a liberation bird and a number underneath that". The Tribunal member asked other questions about the form of a Taskira and received answers. At no point, in her reasons for decision, did the Tribunal member indicate which, in her view, of these answers was incorrect, or what was the correct answer.

8 The Tribunal member asked the applicant questions about the district from which he claimed to come. He gave answers. The process was described this way in the Tribunal's reasons:

"The Tribunal asked the applicant the names of the main town in Jaghuri? Sang-e Mashar.
The Tribunal asked the applicant how many houses there are in this town? The applicant stated that there are shops in the bazaar and there are many small villages around. The applicant stated that he was not familiar with the houses. The applicant stated that he used to go to the bazaar.

The Tribunal asked the applicant how many shops there are in the bazaar? The applicant stated that he could not say how many there are about 600-800.

The Tribunal asked the applicant what is the name of the large mountain near the bazaar. The applicant named a number of mountains - including Koh Oliad, Nala, Qadar, Mandak, Chalmandak. The Tribunal stated that there is one particular mountain near the Bazaar and asked the applicant to name that mountain. The applicant stated that he is illiterate and it is not his job to know these mountains. The Tribunal pointed out to the applicant that he has lived all his life in the area and has visited the bazaar frequently and that he many [sic] be illiterate but he is not stupid. The applicant stated that he could not say which mountain is close.

The Tribunal asked the applicant the name of the main river in Jaghuri? The applicant stated that it is called Sang-e Mashar River."

9 Once again, at no point did the Tribunal member indicate which of the applicant's answers was wrong, or what was the correct answer. The Tribunal dealt with the questions and answers in this broad way:

"The applicant was asked a number and range of questions about Afghanistan, and the area from which he claims to originate. The applicant could not accurately describe the national identity document, the Tazkira [sic], nor could he correctly identify specific geographical landmarks from the area in which he claimed to have lived all his life [for example the name of the river running through the area]. The applicant was vague in his answers to the Tribunal when asked general questions about Afghanistan."
10 The Tribunal member closely questioned the applicant about details of his claims. In her reasons for decision, she identified some alleged inconsistencies. In his initial interview by a Departmental officer, he was recorded as saying that he "had never worked", whereas he told the Tribunal member that, before the Taliban came, he "used to travel to Sang-e Mashar to buy goods". There was apparently also a discrepancy in the applicant's statements about the number of times the Taliban came to his house. There were other more minor matters.

11 The Tribunal concluded its statement of findings in this way:

"The Tribunal must determine whether it can be satisfied that the applicant is a national of Afghanistan.
In the light of:

. The applicant's lack of knowledge about Afghanistan generally

. The applicant's lack of knowledge about his area in particular,

. The numerous and conspicuous inconsistencies in the applicant's claims and evidence

. The raising of new claims [to the Tribunal] to rationalize inconsistencies;

The Tribunal cannot be satisfied that the applicant is a national of Afghanistan.

The only personal details before the Tribunal are provided by the applicant, asserting that he was born in Afghanistan. However because the applicant is not credible the Tribunal is not satisfied that these personal details are true. There is insufficient credible material before the Tribunal to determine where the applicant is from or of which other country he is a national.

The Tribunal invited the applicant to respond in writing to the adverse information and issues raised above. Both the applicant and his adviser responded in writing. The Tribunal has given careful consideration to these responses, but cannot be satisfied that that [sic] they have clarified the significant and numerous contradictions and implausibilities in any meaningful way.

Considering the inconsistencies in the applicant's claims and evidence, and the applicant's untruthfulness on essential elements of his claim, the Tribunal finds that the applicant has deliberately fabricated his claims. In light of the Tribunal's finding that the applicant has fabricated his claims and evidence, and there is no other material before the Tribunal on which it can be satisfied that he has a well founded fear of persecution for reasons of a Convention ground, it cannot be satisfied that he is a refugee within the meaning of the Convention." (Original emphasis)

12 The Tribunal then set out its formal conclusion:

"Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa."

The proceeding before O'Loughlin J

13 The applicant applied to this Court for review of the Tribunal's decision, pursuant to Part 8 of the Migration Act 1958. The application filed on behalf of the applicant was in handwriting. It was apparently prepared without legal assistance. It failed to identify any ground of review falling within s 476 of the Migration Act, as it then stood. The application was supported by an affidavit sworn by the applicant that challenged the factual findings and logic of the Tribunal, but also failed to identify an available ground of review.

14 The application came before O'Loughlin J on 5 November 2001. The applicant appeared in person, apparently by video-link to the Woomera Detention Centre.

15 His Honour gave judgment seven days later. He upheld the application for judicial review and remitted the matter to the Tribunal, differently constituted, "to review the application for a protection visa according to law".

16 In his reasons for judgment, O'Loughlin J summarised the facts. In the course of doing so, he referred to the linguistic report referred to in para 4 above. His Honour reproduced an extract from the report that the Tribunal had quoted in its reasons for decision. The relevant passage in the Tribunal's reasons was as follows:

"On 23 May 2001 a language analysis was made on the applicant. In this report it is stated that:
`The person speaks Dari was a Hazaragi dialect. This dialect is spoken in central parts of Afghanistan, in Baluchistan in Pakistan and in southeastern parts of Iran. Hazagari is obviously his mother tongue and he uses typical local words ... He seems to have a good religious and cultural knowledge but he does not know anything about the geographical location of Afghanistan, not even of the area he was living in ...'

The applicant was invited to comment on this information. The applicant responded on 8 June 2001 stating that:

`I have never travelled outside Afghanistan and have always lived in Kondah, Jaghuri district. I have a good knowledge of my area. I have not travelled outside my village but I have a good knowledge on my area and the surrounding areas. I dispute the allegation that I know nothing about the geographical location of Afghanistan, not even the area I was living in and can answer any questions asked'."

17 O'Loughlin J commented:

"It is difficult to know what weight should have been attached to that report. Its author was not identified nor were the qualifications of the author. Presumably he or she had expertise in the Dari language and the Hazaragi dialect but what expertise did the author possess with respect to the geography of Pakistan? [sic: Afghanistan] None is apparent from the tribunal's reasons yet the asserted inability of the applicant in this report to discuss with clarity certain matters of geography were held against him by the Tribunal."
18 O'Loughlin J emphasised the importance of "the impression that the Tribunal forms when an applicant gives his or her evidence". He noted the Tribunal member had "referred to and acknowledged the many authorities in this Court which have counselled against taking too hard a line because of the inconsistencies in the stances that applicants for refugee status tell to the interviewing authorities". His Honour went on (at paras 12-17):

"Yet, even so, I feel that the Tribunal has fallen into error. The inconsistencies, with one exception that dealt with the number of times that the Taliban visited the applicant's village, were peripheral matters. The principal matters that were to be considered by the Tribunal included the identification of the applicant's nationality and there was no inconsistency there. Next, the Tribunal had to consider whether, because of one of the five convention reasons, there was a real chance of persecution. There was no inconsistency there. By implication, the Tribunal accepted that if he were an Afghani, his Hazara Shi'a background could justify a finding in his favour.
The areas of inconsistency could in many cases just as easily have been called areas of misunderstanding - particularly having regard to the environment in which the applicant was questioned and the need for translators and interpreters. For example, on one occasion he said that he used to travel to Sang-e-Mashur to buy goods, having elsewhere said that he had never worked. Bearing in mind that his father was a trader in the Bazaar and that he accompanied his father to the Bazaar, this subject should have been further explored before concluding that there was an inconsistency or a contradiction.

As the Tribunal pointed out, it relied on the totality of the inconsistencies in concluding that the applicant had `fabricated his claim for refugee status'. It added that it could not be satisfied `that the applicant has ever been pursued by the Taliban or that his brother was killed by the Taliban'.

However, in my opinion these conclusions were influenced impermissibly by relying upon an assertion in a `language analysis report' that the applicant had an inadequate geographical knowledge and by placing undue emphasis on those inconsistencies that were of peripheral importance only.

A more important subject of inconsistency is the attendance on the applicant by members of the Taliban. The Tribunal in its reasons said:

`In his entry interview the applicant stated that the Taliban came to his home on two occasions. In his statement to the Department the applicant claimed that they came on one occasion while at his Tribunal hearing the applicant claimed that they came to the village - including his house - at lease [sic] once a week and sometimes more often.'

Having regard to the fact that the attitude of the Taliban is the basic cause for the applicant's asserted fear of persecution, one would normally expect a pattern of consistency to emerge from the applicant's interviews when discussing the activities of the Taliban so far as they might affect him. But, at the same time, it must be remembered that the applicant was a stranger in a strange land, striving to convince the authorities that he should be permitted to stay here, perhaps embellishing his story or changing it in the hope that it may persuade the authorities to favour him."

19 O'Loughlin J noted the limited review power of the Court. He accepted a submission that "even if the decision contained unreasonable or illogical conclusions, this would not, of itself, be enough to demonstrate an error of law in the Tribunal's decision-making process reviewable under s 476 of the Act". However he noted para [82] of the decision of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 180 ALR 1 viz:

"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."
20 O'Loughlin J concluded at para 23:

"I have come to the conclusion that the Tribunal may have concentrated too much on inconsistencies in what I have called peripheral issues, and, in doing so, has identified wrong issues."
21 His Honour then made the orders mentioned above.

The arguments on appeal

22 The Minister's notice of appeal cited only one ground:

"The Learned Judge made an error of law in holding that the Refugee Review Tribunal (`RRT') had fallen into jurisdictional error (paragraphs 12 to 17 and 23 of the reasons for judgment)."
23 Particulars were supplied:

" 2.1 The RRT's approach to and the reasons for the weight it attributed to and the use it made of the language analysis report (`the report') was a matter for it. The RRT's findings regarding the report was open to it on the evidence before it (paragraph 10 of the Judgment). There is no error of principle in the RRT's approach to this issue.

2.2 As to what weight the RRT placed on matters before it, `peripheral' or otherwise was a matter for it (paragraphs 12 to 17 and 23 of the Judgment).

The Learned Judge's findings in respect of the above two issues is wrong in principle, and trespasses into a merits review of the RRT decision."

24 At the hearing of the appeal, Ms Sashi Maharaj of counsel appeared on behalf of the Minister. Mr N W Morcombe QC and Mr J S Roder appeared (apparently on a pro bono basis) on behalf of the applicant. Ms Maharaj developed the matters stated in her client's notice of appeal by contending that O'Loughlin J's concerns about the Tribunal's decision, properly scrutinised, related to "the weight or the use to which the Tribunal put the language analysis report" and "the Tribunal's characterisation of certain evidence as inconsistencies going to the issue of credit, when his Honour would have forgiven them as areas of understandable misunderstanding". However, Ms Maharaj argued, neither of these areas constituted an error of law within the meaning of s 476 of the Act; each "falls squarely within the classic area of merits review, an area forbidden to the Court sitting on judicial review". She referred to the remarks of Brennan J in Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36:

"The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall C.J. in Marbury v Madison (1803) 5 US 87 at p 111:
`It is, emphatically, the province and duty of the judicial department to say what the law is.'

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

25 Ms Maharaj contended the findings made by the Tribunal were open to it on the evidence; weight was for the Tribunal to determine. She added that, even if any of the Tribunal's findings of fact was wrong, this would not constitute an error of law under s 476. She cited the words of Kenny J in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; 93 FCR 220 at para 186 and statements in later cases.

26 Ms Maharaj concluded:

"It is respectfully submitted that a proper application of the correct legal principles on the issue of the function of a court sitting in judicial review as opposed to an exercise in merits review in the context of s 476, leads to the conclusion that the learned judge at first instance erred in law."
27 Counsel for the applicant did not dispute Ms Maharaj's propositions of law. However, they supported the conclusions of O'Loughlin J. They suggested his Honour was justified in considering that the Tribunal's failings extended beyond factual errors; the Tribunal made a jurisdictional error by identifying the wrong issue and failed to refer to the evidence on which it based its findings concerning the nationality of the applicant. They pointed out that the Tribunal failed to make findings of fact concerning the applicant's answers to the questions put to him about the Taskira and Afghanistan geography. The Tribunal apparently considered those answers inaccurate, but it did not specify the inaccuracies.

28 Counsel pointed out that s 430(1) of the Act requires the Tribunal, where it makes a decision on a review, to prepare a written statement that, amongst other things:

"(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based."

29 Counsel submitted the Tribunal did not do this, in relation to the questions about the Taskira and Afghanistan geography. They argued this gave rise to a ground of review under s 476(1)(a) of the Act: "procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed".

30 Counsel for the applicant said the Tribunal erred because it "treated credibility as the be-all and end-all of the matters at issue". They pointed out the applicant was accepted by the Tribunal as a person of Hazara ethnicity and Shi'a religion. The Tribunal also accepted that Afghanis who possessed these characteristics were at significant risk of persecution if returned to their country of nationality. The dominant issue, therefore, was whether the applicant was an Afghani (as he claimed) or a national of some other country; on the basis that he spoke Dari with a Hazaragi dialect, presumably Pakistan or Iran. Counsel submitted that the task of the Tribunal was to concentrate on this issue, not to be distracted by concerns about credibility on minor matters such as whether regularly going to the bazaar constituted "work" and the number of times the Taliban had visited the applicant's house.

31 Counsel drew attention to something not mentioned anywhere in the Tribunal's reasons for decision. The language analysis report, upon parts of which the Tribunal placed reliance, commenced with the following statement, under the heading "Expert opinion":

"The speech on the tape is Dari. The person speaking has obviously his language background in Afghanistan."
32 Following that statement, and under the heading "Explanation", the Tribunal made the comment about the applicant speaking Dari with a Hazaragi dialect, and gave information about where else this dialect is spoken. After citing some examples, the report concluded:

"He seems to have good religious and cultural knowledge but he does not know anything about the geographical location of Afghanistan, not even of the area he was living in.
There are no linguistic features on this recording which indicate that the person speaking has his language background in any other country than Afghanistan.

The analyst who has performed this analysis originates from Afghanistan."

33 The first paragraph of the extract set out in the preceding paragraph was quoted by the Tribunal in its reasons for decision: see para 16 above. However, the second paragraph was not.

34 Counsel drew attention to the statement in the Tribunal's reasons for decision (quoted at para 11 above): "The only personal details before the Tribunal are provided by the applicant, asserting that he was born in Afghanistan". Counsel argued this statement was incorrect: the Tribunal had uncontradicted evidence from its own selected linguistic expert that:

(i) the applicant "has obviously his language background in Afghanistan"; and

(ii) there are "no linguistic features on this recording which indicate that the person speaking has his language background in any other country than Afghanistan."

35 Counsel argued these conclusions virtually compelled a finding in the applicant's favour on the critical issue, regardless of any inconsistencies in the details of his various accounts or doubts about his credibility. They said the fact that the Tribunal did not even refer to this evidence shows it failed to ask itself the correct question in addressing the issues it had to determine.

Conclusions

36 This Court must always be alive to the difference between judicial review and merits review. That difference was explained by Brennan J in Quin. His explanation was adopted by McHugh, Gummow and Hayne JJ, in relation to the Migration Act, in Yusuf at para 73. As Ms Maharaj submitted, it is not open to the Court to set aside the Tribunal's decision simply because it has concerns about the Tribunal's factual findings; it would not be sufficient even if the Court were positively satisfied they were wrong.

37 Counsel for the applicant criticised the failure of the Tribunal to comply with the requirements of s 430(1)(c), in relation to the questions about the Taskira and the geography of Afghanistan. The Tribunal must have regarded the applicant's knowledge of these facts as a significant matter, otherwise it would not have put the questions. But it failed to set out its findings about them. It did not say to what extent the answers were incorrect. Neither did it refer to the evidence or other material by virtue of which it had concluded the applicant was wrong. As it seems to us, it is arguable that s 430(1)(c) and (d) required these matters to be disclosed.

38 In Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 456; 98 FCR 469 a Full Court of this Court (Black CJ, Sundberg, Katz and Hely JJ; Kiefel J dissenting) held that a failure to comply with a requirement of s 430 falls within s 476(1)(a). That decision was overruled by the High Court in Yusuf. A failure by the Tribunal to comply with s 430, does not, in itself, constitute a ground of review under the old s 476.

39 However, members of the High Court pointed out, in Yusuf, that a failure by the Tribunal to comply with s 430 may have other consequences. At para 5, Gleeson CJ said:

"The Tribunal is required, in setting out its reasons for decision, to set out `the findings on any material questions of fact'. If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material."
40 Gaudron J (at para 51) held that the failure of the Tribunal to make findings with respect to one aspect of Ms Yusuf's claims "has the consequences that the Tribunal lacked jurisdiction to affirm the earlier decision of the Minister's delegate and, also, that its decision was not authorised by the Act".

41 McHugh, Gummow and Hayne JJ said (at para 75):

"If the Tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error. The error in such a case will most likely be either an error of law (being an erroneous understanding of what constitutes a well-founded fear of persecution) or a failure to take account of relevant considerations (whether acts of persecution have occurred in the past). It is not accurate, however, to say that the Tribunal is, therefore, under a duty to make all material findings of fact, if, as seems probable, that formulation of the duty is intended to extend the ambit of judicial review beyond accepted and well-established limits. If it is not intended to have that effect, it is not useful to formulate the duty in that way. Rather, the relevant inquiry remains whether the Tribunal has made an error of law, has failed to take account of relevant considerations, or has taken account of irrelevant considerations."

42 In applying these observations to the present case, two questions arise. First, what flows from the fact that the Tribunal failed to set out its findings on the correctness of the applicant's answers to its questions about the Taskira and Afghanistan geography, other than the broad statement quoted at para 9 above? At a stretch, that statement might be taken as setting out "findings" that some or all of the applicant's answers were wrong. But it certainly cannot be regarded as referring to the evidence or other material on which any such finding was based.

43 We do not find it necessary to resolve this first question. The appeal may be resolved on the basis of the second question, the answer to which is clear.

44 The second question concerns the Tribunal's failure to consider the significance of the linguist's opinion that the applicant "has obviously his language background in Afghanistan". The applicant's language background was of pivotal importance to the only real issue the Tribunal had to determine: his nationality of origin. The Tribunal had before it a report about that matter obtained by the Department from an independent person with apparent expert qualifications. The genuineness of the report was not in doubt. The Tribunal member was aware of the report, and relied on it in some respects, yet she failed to have regard to what was probably its major finding: the linguist's opinion about the applicant's linguistic background. Consistently with what was said in Yusuf, it must be concluded that the Tribunal "did not consider the matter to be material" (Gleeson CJ). Yet it plainly was. In thinking otherwise, the Tribunal erred in law. Having regard to the significance of the linguist's opinion, the Tribunal's failure to deal with it constituted a failure to exercise its jurisdiction: see Gaudron J in Yusuf at 15 and McHugh, Gummow and Hayne JJ at paras 78 and 82.

45 We differ from O'Loughlin J to the extent that we would not attribute to the Tribunal any reliance upon the linguist's assertion that the applicant had an inadequate geographical knowledge. Although this portion of the report is quoted by the Tribunal in its reasons for decision, it is not mentioned in that part of the reasons that is headed "Findings and Reasons". The Tribunal may not have relied upon the linguist's view about these matters. However, we share his Honour's opinion that the Tribunal failed to address the issues it had to consider. The Tribunal failed to exercise its jurisdiction. As Yusuf makes clear, that failure is judicially reviewable under s 476(1)(b) of the Act.

46 The appeal should be dismissed with costs.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox and Marshall.




Associate:

Dated: 21 June 2002

IN THE FEDERAL COURT OF AUSTRALIA



SOUTH AUSTRALIA REGISTRY
S217 OF 2001





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

APPELLANT


AND:
SBAA

RESPONDENT




JUDGES:
WILCOX, BRANSON and MARSHALL JJ


DATE:
21 JUNE 2002


PLACE:
SYDNEY (HEARD IN ADELAIDE)





REASONS FOR JUDGMENT
BRANSON J

47 I have had the advantage of reading in draft the reasons for judgment of Wilcox and Marshall JJ. Their Honours have set out the background to the appeal and there is no need for me to do so also.

48 I have formed the view, with regret, that the appeal in this matter ought to succeed. My regret stems not only from my disagreement with Wilcox and Marshall JJ but more importantly from the following matters.

49 As Wilcox and Marshall JJ have pointed out, the Tribunal accepted that the respondent is a Shi'a Muslim and ethnically a Hazara. The Tribunal also accepted, at a time when the Taliban controlled virtually all of Afghanistan, that Hazaras in Afghanistan are particular targets of discriminatory action by the Taliban, that it could be argued that they are victims of "ethnic cleansing" by the Taliban and that the Australian Department of Foreign Affairs and Trade had advised that it would be unsafe for Hazaras to return to Afghanistan for fear of persecution. In those circumstances the critical issue before the Tribunal was whether it was satisfied that the respondent was, as he had consistently asserted, a national of Afghanistan.

50 On the issue of the respondent's nationality the Tribunal stated:

"The only personal details before the Tribunal are provided by the applicant, asserting that he was born in Afghanistan. However, because the applicant is not credible the Tribunal is not satisfied that these personal details are true. There is insufficient credible material before the Tribunal to determine where the applicant is from or of which country he is a national."
51 In considering whether it was satisfied that the respondent was a national of Afghanistan, the Tribunal, remarkably, in my view, failed to refer to the fact that a language analyst, upon whose report the Tribunal otherwise relied, had reported concerning a tape of the respondent speaking that:

"The person speaking has obviously his language background in Afghanistan"; and
"There are no linguistic features on this recording which indicate that the person speaking has his language background in any other country than Afghanistan."

52 It is not possible to know whether the Tribunal overlooked the above aspects of the linguist's report, for some reason rejected their validity or simply found them outweighed by inferences which it drew from its conclusion that the applicant had given incredible evidence. In the circumstances one is left with a sense of disquiet with respect to the integrity of the process whereby the Tribunal determined that it was not satisfied that the respondent was a national of Afghanistan.

53 However, as Wilcox and Marshall JJ have pointed out, this Court must be alive to the difference between judicial review and merits review. It was for the Tribunal to determine the merits of the respondent's claim to be entitled to a protection visa. Provided that the Tribunal's decision was not affected by illegality of a kind which gives rise to a ground of review in the Court, this Court may not intervene to cure what it may see as administrative injustice or error (Attorney-General (NSW) v Quin (1990) 170 CLR 1 per Brennan J at 35-36, cited in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 180 ALR 1 ("Yusuf") per McHugh, Gummow and Hayne JJ at [73]).

54 In my view, the respondent's case cannot be advanced by reference to s 430(1) of the Migration Act 1958 (Cth) ("the Act"). Section 430(1) provides:

"Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and

(b) sets out the reasons for the decision; and

(c) sets out the findings on any material questions of fact; and

(d) refers to the evidence or other material on which the findings of fact were based."

The written reasons for decision of the Tribunal plainly comply with pars (a) and (b) of s 430(1). Whether the written reasons comply with par (c) depends upon the meaning to be attributed to the phrase "findings on any material questions of fact".

55 The "findings" within the meaning of s 430(1)(c) are findings actually made by the Tribunal (Yusuf per Gleeson CJ at [10], Gaudron J at [33], McHugh, Gummow and Hayne JJ at [68] and Callinan J at [217]). As to the materiality of questions of fact, as Gleeson CJ pointed out in Yusuf at [9]:

"... the level of generality, or particularity, at which facts are to be classified for the purpose of determining their materiality is a problem. The distinction between facts in issue, particulars, and evidence, which may be difficult even in adversarial litigation conducted with or without formal pleadings, is even more difficult when applied to proceedings before the Tribunal."
56 In Yusuf McHugh, Gummow and Hayne JJ, with whose reasons for judgment Gleeson CJ agreed, at [73]-[74] said, in respect of a contention that the Act, and s 430 in particular, imposed a duty on the Tribunal to make findings of fact, that:

"It is, of course, essential to begin by considering the statutory scheme as a whole. To that extent the submission is right. On analysis, however, the asserted duty to make findings may be simply another way of expressing the well-known duty to take account of all relevant considerations. The considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider ....
This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts."

57 The Tribunal asked the respondent questions concerning the Taskira and the geography of Afghanistan to test the credibility of his assertion that he had been born in Afghanistan and lived his life in that country. Ultimately the Tribunal proceeded on the basis that it was not satisfied that the respondent was a national of Afghanistan.

58 The finding of the Tribunal as to the respondent's nationality was plainly a finding on a material question of fact. It was crucial to the ultimate issue that the Act required the Tribunal to determine, namely whether it was satisfied that the respondent was a person to whom Australia owes protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). Having regard to the claims advanced by the respondent, the answer to the question of whether Australia owes protection obligations to the respondent under the Convention depended upon the Tribunal's finding as to his nationality.

59 It may be, although I am far from sure that it is, that the Tribunal's finding that the respondent was not credible was a finding on a material question of fact. However, the Tribunal's findings as to the accuracy of the respondent's answers to its questions concerning the Taskira and the geography of Afghanistan were not, in my view, findings on material questions of fact within the meaning of s 430(1)(c) of the Act. The Tribunal was under no legal obligation to ascertain the extent to which the respondent was familiar, if at all, with the Taskira and the geography of Afghanistan. It sought to ascertain the extent of his familiarity with these things, not because his familiarity with them was of itself significant but because a demonstrated familiarity, or alternatively a demonstrated absence of familiarity, would assist it in its determination of the weight, if any, that it was willing to give to the respondent's claim to be an Afghani.

60 The Tribunal's findings as to the accuracy of the respondent's answers to its questions concerning the Taskira and the geography of Afghanistan were, in my view, too far down the line of analysis adopted by the Tribunal to be findings on material questions of fact within the meaning of s 430(1)(c). So much is, as it seems to me, made clear by the decision of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 168 ALR 407 where at [67] his Honour stated:

"... the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were `utterly implausible'. However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence."
61 Turning to s 430(1)(d) of the Act, it is now clear that this paragraph does not require the Tribunal to set out the evidence or other material upon which it did not place weight in making its findings or to give reasons for not placing weight on that evidence or material (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham per McHugh at [67]; Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at [24] (FC)).

62 For the above reason it is not necessary for consideration to be given to the present status of the decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845; 98 FCR 469 ("Singh") (Black CJ, Sundberg, Katz and Hely JJ, Kiefel J dissenting) which held that a failure to prepare a written statement as required by s 430(1) of the Act is a failure to observe a procedure required by the Act to be observed in connection with the making of a decision. The decision of the Full Court in Singh was not subject to appeal to the High Court. While Yusuf clouds with doubt the decision of the Full Court in Singh, the decision of the majority of the High Court in Yusuf turned on the proper construction of s 430(1)(c), not on the ambit of the ground of review identified in s 476(1)(a) of the Act. Yusuf did not overrule Singh so far as Singh held that a failure to comply with a requirement of s 430(1) constitutes a failure to observe a procedure required by the Act to be observed in connection with the making of the decision within the meaning of s 476(1)(a) of the Act (see Ragunathan v Minister for Immigration and Multicultural Affairs [2001] FCA 1142).

63 Did the apparent failure of the Tribunal to give consideration to the significance of the linguist's opinion that the respondent's language background was in Afghanistan nonetheless amount to a failure by the Tribunal to exercise its jurisdiction?

64 In Yusuf Gaudron J at [42]-[44] observed:

"Although the notion of constructive failure to exercise jurisdiction developed in relation to the grant of prerogative relief and, later, the grant of relief under s 75(v) of the Constitution, it is one that has some bearing on statutory schemes for judicial review of administrative decisions of the kind set out in Pt 8 of the Act. For example, it may be that the failure of the Tribunal to take a particular matter into account indicates that, in the circumstances, the Tribunal has misunderstood its duty or applied itself to the wrong question and has, on that account, failed to conduct a review as required by s 414 of the Act.
The power of the Tribunal to affirm, vary or set aside a decision of the Minister or his or her delegate is a power which can only be exercised when it has conducted a review of the decision in question. So much follows from the direction in s 414(1) that, if a valid application is made, the Tribunal "must review the decision". So, too, it is to be discerned from s 430 which speaks of a `decision on a review'. A decision made other than on review is not a decision authorised by the Act. So, too, a decision made other than on a review of the kind required by the Act is not a decision that is authorised by the Act.

It follows from what has been written above that the failure of the Tribunal to make findings with respect to a particular matter may, at the same time, reveal failure to exercise jurisdiction, whether actual or constructive, and, also, failure to conduct a review as required by the Act. And the latter constitutes reviewable error for the purposes of ss 476(1)(b) and (c) of the Act."

65 In Yusuf McHugh, Gummow and Hayne JJ, with whose reasons for judgment the Chief Justice agreed, after rejecting arguments based on s 476(1)(a), at [78] said:

"That is not to say that the Federal Court has no jurisdiction to deal with cases in which it is alleged that the Tribunal failed to make some relevant finding of fact. For the reasons stated earlier, a complaint of that kind will often amount to a complaint of error of law or of failure to take account of relevant considerations. It is necessary, therefore, to consider some further aspects of s 476, especially s 476(1)(b), (c) and (e) and s 476(3)(d) and (e). ..."
66 At [81] their Honours rejected the submission made by the Minister that the use of overarching concepts, such as "jurisdictional error" were inconsistent with a statutory scheme such as that contained in Part 8 of the Act. At [82] their Honours stated:

"It is necessary, however, to understand what is meant by `jurisdictional error' under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia if an administrative tribunal (like the Tribunal):
`falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.'

`Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law."

67 Assuming for present purposes that the Tribunal did ignore the linguist's opinion that the respondent's language background was in Afghanistan, this would, in my view, amount to the Tribunal's having ignored relevant material. However, it is not in every case that an administrative tribunal ignores relevant material that it makes a jurisdictional error. It is necessary that the Tribunal's failure to have regard to the relevant material should affect its exercise or purported exercise of power in the sense of causing it to exceed its authority or power. Its authority or power is limited to making decisions in accordance with law (see Yusuf at [82]).

68 In this case the Tribunal rightly identified the issue for its determination as being, relevantly, whether it was satisfied that the respondent was a national of Afghanistan. Its approach to this issue does not suggest that it misunderstood in any way the concept of nationality or that it mistook the relevant country. As Kenny J pointed out in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; 93 FCR 220 at [146], the Tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. Similarly, in my view, the Tribunal does not commit an error of law merely because it disregards or fails to treat as probative, material which objectively appears probative. With respect to Wilcox and Marshall JJ who have taken a contrary view, I do not think that the apparently probative nature of the linguistic opinion is sufficient to render the Tribunal's failure to deal with it a failure to exercise its jurisdiction. Rather, it seems to me, the error, if any of the Tribunal, was an error within the Tribunals' jurisdiction. The approach adopted by their Honours and by the learned primary judge, is an approach which, with respect, seems to me to intrude into the forbidden area of seeking to cure perceived administrative injustice or error.

69 Further, in my view, an error going only to the identification or evaluation of evidence touching on an issue rightly identified by the Tribunal will not mean that the decision of the Tribunal was not authorised by the Act or the regulations (s 476(1)(c)). Nor will such an error mean that the decision of the Tribunal involved an error of law, being an error involving an incorrect interpretation of the applicable law (s 476(1)(e)). The error, if any, was an error in the process of making a finding of fact.

70 In my view the appeal should be allowed, the decision of the primary judge set aside and in lieu thereof it should be ordered that the application for review by the Court of the decision of the Tribunal dismissed.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson




Associate:

Dated: 21 June 2002

Counsel for the Appellant:
S Maharaj






Solicitor for the Appellant:
Spark Helmore






Counsel for the Respondent:
N W Morcombe QC and JS Roder






Solicitor for the Respondent:
Refugee Advocacy Service of South Australia Inc






Date of Hearing:
29 May 2002






Date of Judgment:
21 June 2002


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