Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

the court 1 On 21 May 2003 the Court made orders dismissing the appeal with costs. These are the reasons for those orders. 2 The appeal was from the orders made by a Judge of this Court dismissing an application for judicial review under s 39B of the Judiciary Act 1903 (Cth) of a decision of the Refugee Review Tribunal (the "Tribunal") made on 20 March 2002 in which the Tribunal affirmed a decision of the delegate of the respondent Minister not to grant a protection visa. 3 The applicant is a citizen of Bangladesh who arrived in Australia on 22 May 2000. Shortly thereafter he applied for a protection (class XA) visa. The application was refused by a delegate, and upon review by the Tribunal. 4 The claim by the appellant that he was entitled to a protection visa, rested, relevantly, on the satisfaction of the Tribunal that the appellant was a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as modified by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (the "Convention"), and in particular Article 1A(2) thereof. 5 The claim of the appellant that he was entitled to a protection visa rested on a claim that he had a well founded fear of being persecuted for reasons of religion that arose, he said, because of his being an Ahmadi Muslim. The appellant was born into a Sunni Muslim family in 1961. He claimed that in 1986 he joined the Ahmadiyya Jamat and took part regularly thereafter in various religious activities organised by the Ahmadiyya Muslim Jamat of Bangladesh. The Ahmadiyya, the country information revealed, was a movement which accepted the fundamentals of Islam, but which held that the movement's founder, Hazrat Mirza Ghulam Ahmad, was the Promised Messiah whose coming had been predicted by the prophet Mohammed. 6 Because of these beliefs, amongst others, orthodox Islam officials view the Ahmadis to be heretical and outside true Islam. 7 The appellant claimed that not only was he a follower, but also that he was a priest of the religious group. He claimed to have been attacked at a mosque where he had given a talk in December 1988, that he had been attacked at a bus station in 1992 and that he had been attacked by fanatics, injured and hospitalised in 1999 in circumstances where the police had knowingly taken no action. He further claimed that his house had been attacked in June 1999 and his wife threatened while he was not there. 8 As the primary judge found, if the appellant's claims had been accepted, factually, it would have been open to the Tribunal to be satisfied that the appellant had a well founded fear of persecution on religious grounds. 9 The Tribunal, however, did not accept the appellant's claims. Having set out the relevant legal structure of the claim for protection, having discursively set out the claims and evidence, and having referred to the country information, the Tribunal made findings which expressed a comprehensive disbelief of the appellant. The Tribunal accepted that the appellant was a citizen of Bangladesh, but apart from that the Tribunal did not accept any of his claims or any of his evidence as being true. The Tribunal also indicated why it did not believe the appellant. Those reasons need not be set out; it is sufficient to say that they were apparently rational. 10 The primary judge referred to these matters and concluded that these findings of fact based on credit were conclusive and displayed no error of a kind that could found relief under s 39B of the Judiciary Act. 11 The notice of appeal contains four paragraphs in which various legal errors are asserted. The errors are asserted at a level of generality which would indicate that there has been some legal assistance of a general kind, but each ground fails to relate the particular asserted complaint to the decision of the primary judge in question. The four grounds were as follows: 1. The Single judge of the Federal Court in his Honors Judgement delivered on the 08 October 2002 failed to find error of law, procedural fairness, Jurisdictional error and relief under Section 39 B of the Judiciary Act 1903. 2. His honour failed to find that tribunal was acted in bad faith. The RRT decision was affected by procedural fairness. 3. The Refugee Review Tribunal has not attended any evidence in relation to the applicant's claims and thus its decision is influenced by sufficient doubts. The applicant provided a suitable vehicle and most of the grounds relied upon facts and documents, which the Tribunal did not consider. Thus the applicant rely on the following grounds: (a) The Refugee Review Tribunal did not follow the proper procedure as required by the Migration Act 1958. Thus, the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed (Moin, Lee's case). The RRT decision was affected by an 'Error of law' and 'Jurisdiction error'. (b) There was no evidence or other material to justify the making of the decision. 4. The applicant is a genuine refugee under the UN Convention and sub-class 866 of the Migration Act 1958, but the authority has not considered applicant's claims and he has been refused to remain in Australia permanently. The RRT has failed to investigate the applicant's claims, specifically the grounds of persecution, in Bangladesh. Therefore, the tribunal's decision was affected by procedural fairness, error of law and judicial error. 12 Subject to what follows, no basis has been made out by the appellant in argument before us as to any ground which might found a conclusion that there was error either in the primary judge's or the Tribunal's decision. 13 By letter sent to the respondent's legal advisers on the day prior to the hearing the Court indicated that it would expect counsel for the respondent to address an issue identified in the letter. The issue arose from the way the Tribunal had dealt with an anonymous letter sent from Bangladesh. The reasons of the Tribunal indicated that during the course of the hearing it advised the appellant that it had certain information available to it that was potentially adverse to the appellant. It then conducted an interview with the appellant to discuss this. The letter was referred to by the Tribunal as a "dob-in" letter from a person in Bangladesh who stated that the appellant's claims were not true and that the appellant was in Bangladesh at the time that the letter was apparently written, having falsely told the Department that he was travelling to India to see a sick relative. 14 The letter sent on behalf of the Court to the solicitor on the record for the respondent was in the following terms: The members of the Court have asked me to raise with you a question which might arise out of pages 84 and 85 of the Appeal Book. The Tribunal appears to have advised the applicant (the current appellant) that certain information was available to the Tribunal which was potentially adverse to him and thereafter to have conducted an interview to discuss those matters. The Court would like counsel to be in a position to deal with the question as to whether s 424A and in particular par 424A(2)(a) has or have been complied with and, if not, the effect thereof, and any associated questions of procedural fairness. 15 When the appeal was called on for hearing these matters were raised by the Court with Mr Beech-Jones, counsel for the respondent Minister. His first point in answer to the matters raised in the above letter was that they involved fresh points which could have been met by evidence in the hearing before the primary judge. After discussion between Mr Beech-Jones and the Court, it was plain that this proposition had validity insofar as the issue of natural justice or compliance with subs 424A(1) of the Migration Act 1958 (Cth) (the Act) was concerned. That is, the extent to which the Tribunal fairly explained the existence of the letter and its possible importance to the decision was not an issue before the primary judge, and if it had been, evidence could have been called about these matters. 16 The Court raised with the appellant the question of the so-called "dob-in" letter and whether he wished to say anything about it. He did not respond with any submission to the effect that he had been treated unfairly in regard to it or that he had been denied any opportunity to be heard about it. The application before the primary judge did not contain a complaint about this aspect of the Tribunal's handling of the matter. The notice of appeal mentions "procedural fairness", but as referred to earlier, descends to no particularity, and certainly does not raise this complaint. 17 We accept the submission on behalf of the respondent that if an issue of natural justice or compliance with subs 424A(1) had been raised before the primary judge it could have led to evidence being called. In those circumstances upon well-known principles (Coulton v Holcombe (1986) 162 CLR 1, 7-8 and see generally Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [34] to [39]) it would be wrong to allow such an issue to be ventilated now. 18 That does not deal, however, with what is conceded by the respondent to be a failure of the Tribunal to comply with subs 424A(2). By that subsection the Tribunal was obliged to provide the particulars and information called for by subs 424A(1) and the invitation to respond to those matters by one of the methods referred to in s 441A. All the methods referred to in s 441A involve the sending or giving of a document. Thus, s 424A (and in particular subs 424A(2)) contemplates the person being told of the matters in subs 424A(1) in writing. 19 That did not happen here. That is not to say, however, that fairness was not exhibited by the Tribunal to the appellant. From the Tribunal's reasons there is every reason to think that fairness was shown to the appellant, that he was given a fair opportunity to be heard and that he was effectively told of all the matters contemplated by subs 424A(1). As we have said, to permit an enquiry to the contrary of these matters, now, would be wrong. 20 What of the admitted failure to comply with subs 424A(2)? 21 The first submission of Mr Beech-Jones was that it should not be allowed to be raised. No prejudice of the kind discussed in cases such as Coulton v Holcombe, supra was asserted. No prejudice of the kind discussed in Branir v Owston, supra at [38] was asserted. Nevertheless, it was submitted that the Court should not permit the point to be raised, in this case at the instance of the Court itself, for the first time. The submission is not without force. The appeal process is for the correction of error. Nevertheless, the appeal to this Court is an appeal by way of rehearing: cf Fox v Percy [2003] HCA 22. Further, in an area where, as here, one party suffers from a lack of legal representation, a lack of familiarity with the legal process and a lack of familiarity with the English language, if the appeal Court upon reading the papers perceives a legal issue which on no view could cause prejudice of the kind earlier discussed, it is in conformity with the notion of the matter being an appeal by way of rehearing for the matter to be raised. This is especially so when the law is, as in this area, in a state of some movement with recent legislative changes and recent High Court authority. The issue is one which might well have been properly raised with the Court at first instance by counsel for the Minister: cf P & C Cantarella v Egg Marketing Board [1973] 2 NSWLR 366, 383-4 esp 383 F. That is not said by way of any criticism whatsoever of counsel who appeared below. The issue could not fairly be described as an obvious one. To allow the question of an admitted failure to comply with subs 424A(2) to be considered is not to diminish the important proposition that the first instance hearing is not to be treated as a mere preliminary to an appeal or otherwise to undermine the importance of raising all relevant matters at first instance insofar as they are appreciated as possible issues. 22 The second submission of Mr Beech-Jones was based on the approach of Emmett J in Paul v Minister for Immigration and Multicultural Affairs [2001] 113 FCR 396. That was a case decided under Part 8 of the Act before the amendments in October 2001. Failure to observe procedures was alleged for the purposes of par 476(1)(a). The procedures said not to have been observed were those contained in subs 424A(1) and (2). Emmett J found there to have been no failure to comply with subs 424A(1); that is, his Honour found no substantive failure to comply with the surrogate for natural justice. (His Honour was in dissent on this issue; but that does not matter for what follows.) His Honour did find a breach of subs 424A(2); but nevertheless refused to set aside the relevant decision, as a matter of discretion, there being no unfairness or prejudice to the party in question. Whilst the analysis of whether a relevant procedure was not observed for the purposes of the "old" par 476(1)(a) did not require an analysis of whether the failure amounted to a jurisdictional error or not, his Honour's preparedness to exercise a discretion contained in the then s 481 carried with it, implicitly, a conclusion that the failure was a non-jurisdictional error. We are assisted by the approach taken by Emmett J in that case to conclude that any failure to comply with subs 424A(2) here was not one of substance, but as to the purely procedural question of the method or vehicle of conveying the important substantive information referred in subs 424A(1). This is so, despite the apparently mandatory language of subs 424A(2). The Tribunal undertook its task of review. It did so fairly. As was said by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 388-89, the fact that an act is done in breach of a condition regulating the exercise of a statutory power does not necessarily lead to the conclusion of the invalidity of the exercise of the power. Whether it does so or not depends on ascertaining from the statute whether such an intention exists. As their Honours said in Project Blue Sky, supra at 389: An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. 23 Thus, the relevant enquiry here is whether Parliament intended that breach of the condition as to the manner of delivery of the relevant substantive information should necessarily spell the invalidity of the Tribunal's decision, even in circumstances where there has been satisfaction of the important substantive requirement of subs 424A(1) to give the appellant the information there contemplated, and implicitly an opportunity to deal with it. The "mandatory" language (the word "must" is used in subs 424A(2)) is relevant to, but not decisive of, this enquiry. In our view, it cannot be concluded that invalidity of the Tribunal's decision is the necessary consequence of any failure to comply with subs 424A(2), irrespective of the absence of any unfairness, whether of a substantive or procedural kind. Thus, we do not think that the failure to convey the relevant information by the correct method or vehicle can be seen as jurisdictional. This is so, it seems to us, even without considering the application of s 474 of the Act. (Quite different considerations might attend the analysis had there been a breach of subs 424A(1).) 24 This conclusion is reinforced by Plaintiff S157 v The Commonwealth (2003) 77 ALJR 454. Mr Beech-Jones referred to [76] to [78] in the reasons for judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in that case which were in the following terms: [76] Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression "decision[s] … made under this Act" must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all". See Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598 at 606 [51] per Gaudron and Gummow JJ; at 608 [63] per McHugh J; at 624-625 [152] per Hayne J. Thus, if there has been jurisdictional error because, for example, of a failure to discharge "imperative duties" see R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248 per Dixon J. See also Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 632 per Gaudron and Gummow JJ or to observe "inviolable limitations or restraints", R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 at 419 per Mason ACJ and Brennan J. See also R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248 per Dixon J; Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 632 per Gaudron and Gummow JJ, the decision in question cannot properly be described in the terms used in s 474(2) as "a decision … made under this Act" and is, thus, not a "privative clause decision" as defined in s 474(2) and (3) of the Act. See Darling Casino Ltd v NSW Casino Control Authority(1997) 191 CLR 602 at 632 per Gaudron and Gummow JJ. [77] To say that a decision that involves jurisdictional error is not "a decision … made under [the] Act" is not to deny that it may be necessary to engage in the reconciliation process earlier discussed to ascertain whether the failure to observe some procedural or other requirement of the Act constitutes an error which has resulted in a failure to exercise jurisdiction or in the decision-maker exceeding its jurisdiction. [emphasis added] [78] The effect of s 474 is to require an examination of limitations and restraints found in the Act. There will follow the necessity, if s 474 is constitutionally valid and if proceedings are brought by the plaintiff in accordance with the draft order nisi, to determine, in those proceedings, whether, as a result of the reconciliation process, the decision of the Tribunal does or does not involve jurisdictional error and, accordingly, whether it is or is not a "privative clause decision" as defined in s 474(2) of the Act. 25 It is not necessary for us to examine the extent of application of the decision in S157. It is sufficient for us to say that here, in particular in the light of the presence of s 474 in the Act (but even in the absence of s 474) the failure to observe the procedural requirements of subs 424A(2) in circumstances where there was no unfairness or failure to accord procedural fairness did not amount to a failure to exercise jurisdiction or an exceeding of jurisdiction. 26 Mr Beech-Jones also submitted that when one looked at the structure of the Tribunal's reasons the question of the "dob-in" letter was not central to the rejection of the appellant's credit and his evidence. We agree. 27 In conclusion, to meet the point raised by the Court about the apparent failure to comply with subs 424(A)(2) of the Act it is sufficient to say that such failure was not jurisdictional, with or without any reconciliation process involving s 474. In these circumstances there is no basis to make an order in the nature of mandamus or prohibition: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; and S157, supra at [82]. To the extent that the remedy for injunctive relief in subs 39B(1), and any relief (including declaratory or injunctive relief) based on the jurisdiction conferred by par 39B(1A)(c) of the Judiciary Act or s 75(iii) of the Constitution together with s 32 of the Federal Court of Australia Act 1976 (Cth) can be seen as capable of being given in circumstances exhibiting non-jurisdictional error, we see no basis for any such relief here. This is so, apart from any other reason, both because of the effect of s 474 (the three Hickman provisos having been met) and as a matter of independent discretion, given the absence of any apparent prejudice to the appellant by the (non-jurisdictional) breach in question. 28 The appeal was for these reasons dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Carr, Kiefel & Allsop.