NAIF v Minister for Immigration & Multicultural & Indigenous Affairs

The case at first instance 7 The appellant sought judicial review by an application to this Court made on 14 May 2002. The matter was remitted to the Federal Magistrates Court. The application was framed in terms of the three provisos identified by Dixon J in Hickman's case (1945) 70 CLR 598. Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, the appellant was given time to make further written submissions, and did so. Ultimately the case proceeded on the basis that the appellant claimed the Tribunal had identified a wrong issue, asked itself a wrong question, ignored relevant material, relied on irrelevant material, made an erroneous finding or reached a mistaken conclusion, and denied the appellant natural justice. 8 The appellant's main submission concerned the conduct of the hearing. He pointed to many matters relating to the quality of interpretation and the manner of the presiding member. Barnes FM analysed these contentions by reference to a transcript of the Tribunal hearing, which was in evidence, and by listening to the tapes of the hearing. Her Honour concluded that the difficulties of interpretation had not been sufficient to deny the appellant procedural fairness or the hearing mandated by s 425 of the Act, and that the conduct of the presiding member was not such as to establish actual bias or give rise to a reasonable apprehension of bias. 9 The appellant also advanced several other grounds which Barnes FM analysed. Her Honour concluded that these contentions were, in substance, no more than attacks on the merits of the Tribunal's decision or the weight it gave to particular evidence.

The Appeal 10 Originally the appellant was unrepresented. Mr Levingston, solicitor, saw the appellant's son's difficulties in assisting the appellant and came to their aid. Subsequently the amended Notice of Appeal attacked only one aspect of the judgment of Barnes FM, namely the manner in which her Honour dealt with the finding by the Tribunal that the arrest warrant submitted by the appellant was fraudulent. It is alleged that, contrary to her Honour's reasoning, that finding: · was unreasonable (ground A); · took into account irrelevant considerations (ground B); and · was a key finding leading to the decision of the Tribunal (ground C). 11 The respondent contends that: · this finding by the Tribunal did not involve any error of a legal kind; and · even if it did involve some error, this affected only one of four independent bases for the Tribunal's decision and therefore did not go to its jurisdiction.

Consideration 12 The appellant's evidence before the Tribunal was that the arrest warrant had been issued by the Central Bureau of Investigation on a charge of sedition, implicating him with the Tamil Tigers. 13 The Tribunal referred to four matters which led it to the factual conclusion that the arrest warrant was 'not an authentic document': (a) The appellant had only provided the warrant to the Tribunal (with an unofficial translation) a few days before the hearing, after a number of requests by the Tribunal, even though he had had the document at least for some months and must have understood its importance. (b) The 'official' translation of the document included a notice that it was the 'office copy' and 'should not be removed from the Book for any reason'. The appellant's unofficial translation had not included that notice. The Tribunal did not accept that this was a mere omission on his part; rather, the Tribunal thought that he was trying to hide this aspect of the document (which the Tribunal considered was inconsistent with it being genuine, presumably because it was unlikely that the 'office copy' would have been provided to him). (c) If the warrant was genuine, the police had had 10 weeks to arrest the appellant before he left India. Given the seriousness of the charge and the fact that he was well known, it was implausible that they had not done so.

(d) Independent evidence (and to some extent the appellant's own evidence) suggested that it was very easy to obtain false documents in India. 14 As to the first three of these matters, the appellant submits, respectively, that: · a document 'does not become inauthentic through the passage of time'; · any inadequacies in translation bear only upon the quality of the translation, and not upon the authenticity of the document translated; and · 'the timing of the provision of a document prior to a Tribunal hearing has no logical bearing upon whether the document is 'genuine'. 15 As counsel for the respondent points out, concepts of Wednesbury unreasonableness may relate only to the exercise of administrative discretion, so that they are not apt for Application to the formation of a state of 'satisfaction' about factual matters which s 65 of the Act requires: MIMA v Eshetu (1999) 197 CLR 611, 650 [126] - [127]; Re MIMA Ex parte S20/2002 (2003) 198 ALR 59 [67] - [73]. Nevertheless, 'it is a jurisdictional error of law for someone to exercise public power in the absence of a jurisdictional fact; S20/2002 supra [60] and, generally, [53] - [60]. A decision-maker whose power to act is conditioned on being satisfied of something must have been able to attain that satisfaction reasonably: MIMA v Jia Legeng (2001) 205 CLR 507, 532 [73] but that is quite different from a mere attack on the merits of a decision, which is impermissible: ibid. If 'the criteria of which the [decision-maker] is required to be satisfied turn upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question': Eshetu 654 [137] per Gummow J. As counsel for the respondent points out: 'None of this is contradicted by the reasoning of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002. McHugh and Gummow JJ denied the relevance of a strict dichotomy between errors of "fact" and "law", and appeared to accept that there may be circumstances in which a decision made on an inadequate factual foundation may be seen as involving jurisdictional error. However, those are circumstances in which "the inadequacy of material ... is a circumstance which may support the inference that the tribunal is applying a wrong test or is not in reality satisfied of the relevant matters". The position which their Honours appeared to approve was one which "contrasts insufficiency of evidence to support a conclusion of fact by an administrative decision-maker and the absence of any foundation in fact for the fulfillment of the conditions upon which, in law, the existence of a power depends". Their Honours cautioned against the introduction into s.75(v) jurisprudence of broader views of the scope of review for factual error. Accordingly, even if it were accepted that the Tribunal's conclusion in relation to the arrest warrant lacked a logical foundation, it would not follow that the Tribunal had fallen into jurisdictional error.' In any case, the Tribunal's first reason for rejecting the genuineness of the warrant, namely the appellant's delay in producing it, was clearly available as a reason for doubting its genuineness. The weight to be given to that consideration was one for the Tribunal. It did not lack all logic for the Tribunal to have given it a good deal of weight. The same may be said of the third and fourth matters relied on by the Tribunal to support its view that the warrant was not genuine. 16 The second reason, that the initial translation did not refer to the document's being an 'office copy', must be understood, beneficially to the Tribunal, as a conclusion that (1) the omitted material made it less likely that the untranslated document was genuine (or the appellant might have thought so), and (2) for that reason, the appellant had suppressed that material. If (1) were an available view, the Tribunal might draw (2) as an inference, even if others would not. I must say, however, that I am quite unable to see a logical basis, that is to say, any way in which any rational person might hold (1) as a view: ex hypothesi the original of the warrant had not been served on the appellant and there was no evidence that the authorities might not have kept a copy endorsed as such, a copy of which in turn, the appellant's agents might have obtained. 17 Had that been the only reason for the Tribunal's rejection of the genuineness of the warrant, or had it been a reason of such a character that there would necessarily be doubt as to whether without that reason the other reasons for rejection would still stand, the appellant might, in my view, have succeeded. But the other three reasons given by the Tribunal for the rejection of the warrant stand either unchallenged or unsustainably challenged. Taking those three other reasons together, it seems inconceivable to me that the Tribunal would have come to any different conclusion, had the translation episode not occurred. The case therefore falls far short of being one in relation to a fact upon which the Tribunal's state of satisfaction about the appellant's refugee status depended. That is to say, there was no operative jurisdictional error. 18 Further, as indicated in [5] above, the Tribunal relied on alternative grounds, having nothing to do with the appellant's personal credibility, for rejecting his claim to be a refugee. The first of these appears legally unavailable. The other two were questioned in submissions by the appellant. The existence of the first is enough in itself to found the conclusion that any error by the Tribunal in dealing with the arrest warrant cannot have affected its ultimate decision. For that reason also, there was no operative jurisdictional error. 19 The appellant sought to gain comfort from the decision of Moore and Lee JJ in WAIJ v MIMIA (2004) 80 ALD 568. Their Honours held that by reason of the great importance of Refugee Review Tribunal decisions, the Tribunal was obliged to act judicially in the sense of observing 'the "practical requirements of fairness" appropriate to the exercise of judicial power'. These requirements include that 'the Tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily', so that 'the Tribunal only obtains power to make a determination under the Act where the determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds'. 20 In my opinion, their Honours cannot have been meaning to say anything at odds with the High Court authorities referred to above. Thus understood, their Honours' formulation does not require further consideration of the matter. Although WAIJ dealt with the rejection by the Tribunal of documents, the facts are plainly distinguishable from the present case.

Disposition 21 It follows that the appeal must be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Solicitor for the Applicant: Christopher Levingston & Associates

Solicitor for the Respondent: Blake Dawson Waldron