supplementary submissions concerning yusuf
42 In written submissions dated 23 August 2001, concerning the application of Yusuf in this case, the applicant relied on the proposition, advanced in the joint judgment of McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) and in a separate judgment by Gaudron J, that s 476(1)(b), (c) and (e) permit an applicant for review under Part 8 of the Act to invoke the common law concept of jurisdictional error.
43 The concept of jurisdictional error covers a number of kinds of error, including asking the wrong question or ignoring relevant material. This aspect of the law was explained by the High Court in Craig v State of South Australia (1995) 184 CLR 163 at 179 in the following terms:
At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. … If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
44 After noting that the limitation in s 476(3) of the Act applies to only one ground of review in s 476(1), the joint judgment in Yusuf stated at [83]-[84]:
[T]here is no reason to give either para (b) or para (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs. In particular, it is important to recognise that, if the tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it 'exceeds its authority or powers'. If that is so, the person who purported to make the decision 'did not have jurisdiction' to make the decision he or she made, and the decision 'was not authorised' by the Act.
Moreover, in such a case, the decision may well, within the meaning of para (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. … No doubt it must be recognised that the ground stated in para (e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That qualification emphasises that factual error by the tribunal will not found review. Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which para (e) deals. That having been said, the addition of the qualification to para (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language. If the tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out.
I refer also to [4] of the concurring judgment of Gleeson CJ, and to [38]-[44] of the judgment of Gaudron J.
45 As noted at the start of these reasons, at the hearing, the applicant abandoned any reliance on "want of jurisdiction" and "want of authority" grounds. In his supplementary submissions, however, he sought to renew his reliance upon the ground of want of jurisdiction. The applicant submitted that:
A principal finding of the [Tribunal] was that the claims by the Applicant that the Sri Lankan authorities had been searching [for] him were not credible. A principal basis for this finding was the finding by the [Tribunal] that the letter to the Applicant from his mother dated November 1996 advising that the security forces had come to the family home in October 1996 was postmarked 19 May 1998, eight days after the letter advising of the [Tribunal] hearing … .
In making this finding, which was critical of the credibility of the Applicant, the [Tribunal] does not refer to the letter from the Applicant dated 3 June 1998 … informing the [Tribunal] that the letter from his mother was delayed due to a postal strike. The fact, or otherwise, of a postal strike in Sri Lanka would be a matter which could be readily verified. The failure of the [Tribunal] to consider this information meant that its findings as to the credibility of the information supplied by the mother are based on a failure to take into account a relevant matter. For this reason the entire decision, based on credibility, is also based on a failure to take into account a relevant matter.
The Minister answered this submission in supplementary contentions dated 30 August 2001.
46 The Tribunal did not, in its reasons, refer to the postmark on the 2 November 1996 letter. Rather, it referred to the fact that two letters from the applicant's mother, which were dated 29 March 1998 and 16 April 1998 respectively, were both postmarked 19 May 1998, both having been received, according to the applicant, on 2 June 1998. The finding to which the applicant referred is contained in the passage set out at [24] of these reasons. In that passage, the Tribunal referred to the fact that the letter from the applicant's mother informing him of the visit by security forces to his family's house in March 1998 was "postmarked 19 May 1998, eight days after the date of the letter inviting him to a hearing of the Tribunal". In the same passage, the Tribunal also referred to the facsimile dated 7 June 1998 regarding another visit by the security forces to the house (which the Tribunal noted as "the day before the Tribunal hearing of [the applicant's] case"). This was the context in which the Tribunal rejected the applicant's claim that the security forces had visited his mother's home and taken documents belonging to him on two occasions in 1998. The Tribunal rejected the claim upon the basis that it found it "very surprising and convenient for [the applicant's] case that the authorities would search his home and take a number of documents belonging to him on two occasions nearly two years after he had left the country and shortly before the hearing of his case by the Tribunal".
47 The Tribunal's rejection of the applicant's claim about the security forces' visits in 1998 did not turn on the fact that the 29 March 1998 letter (or any other letter) was postmarked 19 May 1998. It turned on the fact that there was a delay of two years from the applicant's departure from Sri Lanka in 1996 and what were said to be further visits by the security forces in 1998, as well as on the fact that the alleged visits, in March and June 1998, occurred "shortly before" the Tribunal hearing in June 1998. The latter point was made out by the applicant's own claim that the visits occurred in March and June 1998, as well as by the 7 June 1998 facsimile, irrespective of whether regard was also had to the fact that the 29 March 1998 letter bore a postmark date of 19 May 1998.
48 It is true that the Tribunal specifically remarked upon the 19 May 1998 postmark date and the fact that this was eight days after the date of the letter inviting the applicant to a Tribunal hearing. As already noted, in the same vein, the Tribunal also referred to the fact that the 7 June 1998 facsimile arrived the day before the Tribunal hearing. The applicant did not, however, contest the accuracy of these observations, and, for the reasons stated, they were not critical findings upon which any determination of the Tribunal depended. Moreover, as the earlier discussion at [32]-[34] shows, the Tribunal rejected the applicant's claim that the authorities suspected him of involvement with the LTTE on a number of bases. Its rejection of his claim that the security forces visited his family's house and took documents belonging to him on two occasions in 1998 was only one of them.
49 Furthermore, I reject the claim that because the Tribunal failed to mention the applicant's letter dated 3 June 1998, then the Tribunal failed to have regard to the letter and its reference to the postal strike. The letter stated that the applicant received his mother's letters of 29 March and 16 April 1998 on 2 June 1998, and that their late receipt was "[d]ue to a postal strike in Colombo". In its reasons, the Tribunal specifically referred to the claim (which was made in 3 June 1998 letter) that he did not receive either of his mother's letters until 2 June 1998. In this circumstance, one simply cannot infer that the Tribunal did not have regard to the 3 June 1998 letter and its contents.
50 In this case, even if the Tribunal did not take into account the applicant's claim that the letters had been delayed due to the postal strike, the Tribunal was not bound to take that matter into account. As already noted, the postal strike claim did not bear upon the issue of the two-year delay. Nor did it materially impinge upon the Tribunal's rejection of the applicant's claim that the authorities suspected him of involvement with the LTTE. There may be numerous matters that a decision-maker may take into account (and that are not in law irrelevant) although the decision-maker would not be bound at law to take them into account. As Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40:
What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard … . By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act. (Citations omitted.)
In Yusuf, the majority reiterated this approach at [73], observing:
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 (Abebe v Commonwealth (1999) 197 CLR 510 at 579 [195] per Gummow and Hayne JJ).
51 Moreover, the relevant consideration ground, as it is understood at common law, does not permit inquiry into the merits of the administrative decision under review. As Mason J added in Peko-Wallsend at 40-41:
The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned … . (Citations omitted.)
It is not for this Court to second-guess the Tribunal's evaluation of the evidentiary material before it, or its findings of fact.
52 Furthermore, to the extent that the applicant's case asserts that the Tribunal was under a duty to inquire into the fact of the postal strike in Sri Lanka, that submission must fail. Whilst s 427(1)(d) of the Act confers power on the Tribunal to cause inquiry to be made, it does not impose on the Tribunal any duty to do so: see Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at [86]; P v Minister for Immigration and Multicultural Affairs [2001] FCA 989 at [21] - [22]; Hernandez v Minister for Immigration and Multicultural Affairs [2001] FCA 725 at [16]; Masood v Minister for Immigration and Multicultural Affairs [2001] FCA 405 at [17].
53 In his supplementary submissions, the applicant also contended that the Tribunal had failed to ask whether he had a well-founded fear of harm or serious harm that amounted to a fear of persecution. This, so the applicant submitted, amounted to a failure to ask the right question. The Tribunal's decision was, therefore, beyond jurisdiction for the purposes of s 476(1)(b) of the Act.
54 At [35] to [39] above, I considered a like submission that the Tribunal made an error of law of a kind referred to in s 476(1)(e) in considering the question whether the applicant had a well-founded fear of persecution by reason of being a young Tamil male. The considerations which lead me to reject that submission lead me to reject this supplementary submission too. Further, the Tribunal specifically asked itself the right question when it referred to "serious harm amounting to persecution" and "serious problems amounting to persecution" in the passages set out in [26] to [28] above.
conclusion
55 The challenge made to the Tribunal's decision in this case focused on the manner or style in which the Tribunal wrote its reasons, rather than on the substance of those reasons. Such an approach will not ordinarily support a finding of reviewable error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2 and 291.
56 For the reasons stated, I find that the matters that have been remitted to this Court do not disclose a ground for the relief sought. There will be an order that the applicant pay the respondent's costs in the Federal Court, including reserved costs.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.