Labed v Minister for Immigration & Multicultural Affairs

As a threshold matter, there was a want of jurisdiction. Mr Labed submitted that there was no written direction given as to the constitution of the Tribunal in accordance with s 421(2) of the Act, as required by s 421(1); and that this was a defect of the kind referred to in s 476(1)(b), alternatively, in ss 476(1)(a) or (c). In support of that ground, Mr Labed relied on an affidavit sworn by Melissa Jane Walker on 17 December 1999 (and an accompanying exhibit). In opposition, the respondent relied on the affidavit sworn on 20 December 1999 by Kerry Boland, a senior member of the Tribunal. 2. There was, so Mr Labed submitted, a failure to have regard to "all of the information in the application" as required by s 54(1) of the Act. That is, according to Mr Labed, the Tribunal did not have regard, as it was required to do, to a number of documents, including a faxed copy of the call-up notice dated 15 August 1993; the letter dated 13 April 1999 from the Islamic Algerian Australian Association Inc; and three reports (in the French language) from Algeria-Watch (all mentioned above). This, it was said, was a defect of the kind referred to in s 476(1)(a), alternatively, s 476(1)(e) of the Act. 3. There was also, so Mr Labed submitted, a failure on the Tribunal's part to give him particulars of "relevant information" as required by s 57(2)(a). That information was said to be contained in the documents in the Tribunal's reasons (and referred to above), and in the Inspector's Report dated 4 April 1999 to the effect that Mr Labed had admitted that he had at one point lied to the Inspector about his brother, Tarek. Mr Labed further contended that there was a breach of s 57 by reason of the fact that the Tribunal did not inform him that it was rejecting his account of having obtained deferment of his military service obligations, permission to leave Algeria, and a new passport in 1997. He added that there was a further s 57 breach by reason of the fact that the Tribunal did not inform him that it was about to conclude that he was eligible for an exemption from Algerian military service by reason of his age. Again, reliance was placed on s 476(1)(a), alternatively, s 476(1)(e). 4. The Tribunal did not, so Mr Labed submitted, refer to the evidence or other material to support certain findings as it was required to do under s 430(1)(d). Those unsupported findings included, so it was said, that the applicant's account was implausible; that he could not have left Algeria lawfully without completing military service; that he had either done his military service or obtained an exemption; that, in any event, he was eligible for an exemption on account of his age; or that he was of no concern to the Algerian authorities. Reliance was placed on s 476(1)(a) and (e). 5. In written submissions, Mr Labed claimed that the failure to accord substantial justice was, for the reasons referred to in sub-pars 1 to 4 above, so egregious as to constitute a reviewable error of law under s 476(1)(e). This ground was not, however, seriously pressed at the hearing. 6. There was also, so Mr Labed submitted, actual bias on the Tribunal's part, within the meaning of s 476(1)(f) of the Act. Actual bias was to be inferred, so it was said, from the fact that the Tribunal relied on documents, including the Immigration Inspector's Report mentioned above, that were not shown to him, as well as from the "[h]ostile questioning of the applicant from an apparent standpoint of incredulity". 7. There were, so Mr Labed submitted, other errors of law reviewable under s 476(1)(e). In essence, the submission was that the Tribunal failed to ask itself questions central to the resolution of his refugee status, as, for example, concerning the likely consequences of his being returned to Algeria. In this connection, the Tribunal relied, so Mr Labed said, on adverse findings as to credibility without ever addressing whether he actually had a well-founded fear of persecution. 8. Finally, there was, so it was said, no evidence or other material to justify the decision that Mr Labed does not have a well-founded fear of persecution. a failure to comply with s 430(1)? 19 As we have seen, Mr Labed alleged a breach by the Tribunal of its obligations under s 430(1) of the Act. For the reasons I am to give, I accept that there was default of this kind on the Tribunal's part. 20 Sub-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 any other material on which the findings of fact were based. Notwithstanding the conflict between the decisions of the Full Court in Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 ("Yusuf") (in the reasons for judgment of Heerey, Merkel and Goldberg JJ delivered on 2 December 1999) and in Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 ("Xu") (in the reasons for judgment of Whitlam and Gyles JJ delivered on 17 December 1999), I consider that, at present, the preponderance of authority favours the view that a violation of s 430(1) is judicially reviewable under s 476(1)(a) of the Act. In Yusuf, the Full Court held unanimously, at par 17, that the obligations imposed by s 430(1) are to be characterised as procedures and, at pars 23-24, that these procedures are "in connection with the making of the decision" for the purposes of s 476(1)(a). The Full Court stated in Yusef, at par 20, that: Whilst it is open to the [Tribunal], as a tribunal of fact, to reject evidence or material which was material to the issue of whether a fear, held for a Convention reason, was well founded, if it does so it must set out its own findings in respect of the material questions of fact in that regard … . (Citations omitted) As the Full Court in Yusuf noted, there are now numerous Full Court decisions in which that proposition has been accepted: see, e.g., Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 ("Muralidharan") at 413-416; Perampalam v Minister for Immigration and Multicultural Affairs [1999] FCA 165 at par 22; Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 ("Sellamuthu"), pars 22 and 51; and Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 ("Thevendram") at pars 33-34. Although the reasons for judgment of Whitlam and Gyles JJ in Xu express the contrary view, they stand against the tide of judicial opinion in this Court. I can do none other than follow the Full Court in Yusef. 21 As we have seen, the Tribunal purported to find that Mr Labed "was able to depart Algeria because he had already fulfilled his commitments to the military or because he was officially exempted from military service." The Tribunal also considered the possibility that Mr Labed had neither completed his service nor obtained an exemption. In either of those events, according to the Tribunal, Mr Labed was now eligible for an exemption by reason of his age. In view of this, the decision is, perhaps, best read as containing a three-part finding: that is, either Mr Labed completed his service or he obtained an exemption or he is now able to obtain an exemption. 22 The basis for the Tribunal's finding that Mr Labed had completed his military service (or had an exemption from it) was its assessment that it was improbable that he would otherwise have been able to depart Algeria legally. "It is not plausible", so the Tribunal stated, "that he would have been able to depart Algeria on his own passport at a time when he was due to report for military service, especially after having demonstrated any tendency to evasion of military service". Further, the Tribunal found it "implausible" that Mr Labed was able to obtain a valid passport in 1997 in the manner that he described. The only plausible explanation for these two events, so the Tribunal apparently reasoned, is that he had in fact completed his military service or obtained an exemption. 23 In preparing a written statement in connection with the making of the decision as s 430(1) required, the Tribunal failed, however, to set out its findings on a number of critical matters. The case for Mr Labed was that he had received a call-up notice in August 1993 that required him to present himself for military service in September 1993. The Tribunal apparently accepted that "his first actual call-up notice was sent some time after he abandoned his tertiary studies". It also related that the applicant claimed that the first call-up notice was in August 1993. The Tribunal did not, however, make any finding as to whether or not it accepted Mr Labed's claim, i.e., as to when the call-up notice was received by him. As will be seen, this and two other dates were critical to the outcome of the review being conducted by the Tribunal. 24 The second critical matter that was not dealt with by the Tribunal was Mr Labed's date of departure from Algeria. He claimed to have left in December 1994. At one point the Tribunal referred, in its s 430(1) statement, to a Reuters news report of 7 January 1994 and observed that this report was released "a year before the applicant departed Algeria." This observation would seem to indicate the Tribunal's general acceptance of Mr Labed's account at this point. Later on in the statement, the Tribunal said: If the applicant had not completed his military training or had been granted an exemption, he does not in any event now remain liable for military service. He is now aged almost 30 years and after departing Algeria legally has lived outside that country for four and a half years. If Mr Labed had been outside Algeria for four and a half years at the time of the Tribunal's decision in late May 1998, then he would necessarily have departed Algeria in December 1994 at the latest. It is unclear, however, whether the Tribunal was accepting that departure date unconditionally, or whether it was merely accepting that date as the date of departure for the purposes of a finding that Mr Labed was no longer liable for military service. 25 The final critical date is the date when Mr Labed completed his military service (or perhaps obtained an exemption from it: see below). The former was also not the subject of any finding by the Tribunal, although the Tribunal apparently accepted that the minimum term of military service in Algeria is eighteen months. If this were so, then Mr Labed could not have begun his service in September 1993 and completed it in time to depart Algeria in December 1994. Logically, the three facts - call-up in August 1993 (with service commencing in September 1993), eighteen months' service, and departure in December 1994 - are irreconcilable. In order to avoid ascribing a plainly illogical thought-process to the Tribunal (a course that is to be avoided if possible) one can only assume that the Tribunal rejected one of these three facts. The problem is that the Tribunal failed to indicate in its s 430(1) statement which of these facts it did not accept and to refer, so far as it was required to do, to the evidence upon which such a negative finding was based. 26 In these circumstances, was there failure to set out findings on any material question of fact or to refer to the evidence on which such a finding was based? As Sackville J said in Muralidharan at 414: [I]t is not necessary that the reasons deal with all matters raised in the proceedings; it is enough that the findings and reasons deal with the substantial issues on which the case turns. In the context of s 430(1), material questions of fact have been described as "questions which are central to the case raised on the material and the evidence": Thevendram, par 3; Waugh v Minister for Immigration and Multicultural Affairs [1999] FCA 1464 per Hill J; Hanna v Minister for Immigration and Multicultural Affairs [1999] FCA 1772, par 30 per Branson J; and Yusef, par35. Mr Labed's claims that he first received a call-up notice in August 1993 which required him to present himself in September 1993, but that he departed Algeria in December 1994 without having performed the military service required of him are central to his case. This claim is a crucial part of the account that he gives to support his case that he is a person to whom Australia owes protection obligations under the Convention. This is not simply an instance of the Tribunal failing to set out a determination ancillary to a central fact, or failing to refer to evidence that would support an opposite outcome to that accepted as correct by the Tribunal. Rather, the Tribunal has failed to set out a crucial finding, in the absence of which its conclusion that Mr Labed had completed his service does not make sense. At the same time, the Tribunal also failed to refer to the evidence or any other material upon which it based such a finding. 27 In Yusef the Full Court said, at par 21: If the [Tribunal]'s obligation to set out findings on any material questions of fact is, like other obligations under s 430(1), subject to judicial review, the [Tribunal] itself cannot have the exclusive power to decide what is or is not material in a given case. If the statement of reasons contains no finding of fact on an issue it is no answer to say that if the [Tribunal] did not mention the issue it is therefore not material. Provisions of Division 4 of Part 7 of the Act contain references to "the issues arising in relation to the decision under review": s 423(1)(a) (applicant may give Registrar written arguments relating to such issues); s 425(1)([Tribunal] must invite applicant to give evidence and present arguments relating to such issues). These provisions suggest that in any given case it can be objectively determined what are the issues. It is these issues which the [Tribunal] has to make findings on any material questions of fact, in the sense of "deal(ing) with the substantial issues on which the case turns" (Muralidharan, at 414). It follows from this, so it seems to me, that the Tribunal has failed to fulfil its duty under s 430(1)(c) (and s 430(1)(d)) to set out a finding on a material question of fact (and to refer to the evidence or any other material on which it based that finding). Mr Labed has made out his case under s 476(1)(a) of the Act. 28 As Finn J said in Yilmaz v Minister for Immigration and Multicultural Affairs [1999] FCA 1025, it must, of course, be borne in mind that this Court can properly engage only in judicial review, not merits review [and] in matters such as the present it is appropriate to emphasise that the Tribunal does not commit a reviewable error "merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning": Minister for Immigration and Multicultural Affairs v Rajalingam [1999 ] FCA 719 at para 146. Further, the Court must not examine the reasons given by the Tribunal for its decision over-zealously, with a view to finding error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. Unreasonableness and illogicality are not within the scope of judicial review of Tribunal decisions: cf Rajalingam [1999] FCA 719 at par 146. The Court may, however, intervene when the Tribunal has failed to observe the procedures that the Act requires to be observed in connection with the making of a contested decision. In the present state of the authorities, those procedures include the matters set out in s 430(1)(c) and (d) of the Act. In this case, the failure to set out a finding or findings upon crucial facts constituted a breach of the Tribunal's obligation under s 430(1)(c) (and the failure to refer to the evidence etc, a breach of s 430(1)(d)). 29 Whilst it is true that at the hearing Mr Labed did not expressly submit that, given the dates involved, he could not have completed his military service, that fact was obvious enough and plainly formed part of his case. His case was, as we have seen, that he feared persecution (on a Convention ground) if he returned to Algeria because he had not performed military service there and, on account of his objection to it, had fled the country. 30 The respondent submitted at the hearing in this Court that the decision should be interpreted as accepting the August 1993 call-up notice date and as containing an implied finding that Mr Labed departed Algeria well after December 1994. This would enable the Tribunal's apparent acceptance of the call-up notice date to be reconciled with its finding that Mr Labed had in fact completed his military service. There are, however, two problems with this approach. First, it seems difficult to maintain that the decision contains any such implied finding as to a later departure date. In its written reasons, the Tribunal twice apparently accepts the December 1994 departure date, although, as we have seen, it does not do so unambiguously. Secondly, even if one were to accept that, by implication, the Tribunal must have accepted a later departure date, it did not, as it was required to do, set out that finding or refer to the evidence etc on which it was based. Save for one matter mentioned below, it is difficult to avoid the conclusion that the Tribunal has breached its obligations under s 430(1)(c) or (d). 31 A generous reading of the Tribunal's s 430(1) statement may provide a way to avoid the conclusion that there has been a breach of s 430(1)(c) or (d): if Mr Labed obtained an exemption from service, it may not matter that, on the dates apparently accepted by the Tribunal (though ambiguously), he could not have completed his service. Mr Labed claimed (and the Tribunal accepted) that he was able to obtain an exemption so long as he was a student. The Tribunal accepted that he was issued a call-up notice after terminating his studies. The Tribunal failed, however, to refer to any evidence or other material upon which it might have based the finding that he obtained a further exemption at a subsequent date. That failure would also constitute a breach of s 430(1)(d) of the Act. 32 There was, as we have seen, a third possibility advanced by the Tribunal, namely, that Mr Labed was, in any case, eligible for an exemption from military service by reason of his age. The evidence to which the Tribunal referred was an advice from DFAT of 8 February 1999 to the effect that, according to an Algerian Embassy official in the Washington: Those individuals who have never completed their military service (he mentioned those in particular who are living outside of Algeria) are able to be released from this duty once they are more than 27 years old. The military office at the Algerian Embassy in Washington DC processes requests for those in this situation and finds that authorities in Algeria are cooperative … . The limited conclusion that Mr Labed, who is now 30 years of age, could obtain an exemption is perhaps scantily evidenced but that is not a ground of review. It does, however, show that the Tribunal failed to turn its mind to the actual claim being made by Mr Labed. His case was, as we have seen, that he feared persecution (on a Convention ground) if he returned to Algeria because he had evaded his military service obligations by fleeing the country in December 1974. The Tribunal did not apparently turn its mind to the question whether, if returned to Algeria, Mr Labed would be subject to persecution for having evaded conscription. Nor did it turn its mind to whether the apprehended persecution would be upon a Convention ground. A finding that it was open to Algerians of 27 years or more who were outside Algeria to obtain an exemption from service did not address Mr Labed's claim that he would be executed as a deserter (or draft evader) if he were returned to Algeria. Because the Tribunal did not apply itself to the real claim being made by Mr Labed, being one which, as Wilcox and Madgwick JJ said in Sellamuthu at par 21, might bear on whether the applicant met the Convention requirements of a refugee, the [Tribunal] did not consider the "real question which it was its duty to consider" and this was a constructive failure by the Tribunal to exercise its jurisdiction: Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 at 577, per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, implicitly endorsing the legal analysis (though not the factual conclusions) of Beaumont J at first instance (1996) 64 FCR 151 at 165. See also Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 480 and 483. A decision based on the [Tribunal's] constructive failure to exercise its jurisdiction is one "not authorised by the Act" within the meaning of s 476(1)(c). It also involves an "error of law, being an error involving an incorrect interpretation of the applicable law to the facts as found" within s 476(1)(e) … . See also Hill J at par 50. That is, as their Honours observed, an error of this kind amounts to reviewable error either under s 476(1)(c) or (e). It may also constitute a failure to set out a finding on whether Mr Labed had a well-founded fear of persecution arising from his avoidance or evasion of Algerian conscription laws and, in consequence, a breach of s 430(1)(c), reviewable under s 476(1)(a). 33 As we have seen, Mr Labed advanced other grounds for review. In view of the conclusion set out above, it is unnecessary to consider any of those other grounds. 34 The powers conferred on the Court by s 481 of the Act involve an exercise of discretion: see Yusef, par 40. In this case, I consider it appropriate to set aside the decision of the Tribunal made on 28 May 1999, affirming the delegate's decision not to grant Mr Labed a protection visa, and to refer the matter to which the decision relates to the Tribunal for further consideration. I also consider it appropriate, in the circumstances of the case, to direct that the matter be re-heard by a differently constituted Tribunal. 35 The Court wishes to express its appreciation to Mr Monotti, who appeared pro bono for Mr Labed. The Court has been greatly assisted by his submissions. This is yet another example of the Court being indebted to members of the profession who undertake the responsibilities of counsel and the preparation of cases without fee in order to serve the interests of justice. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

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