was there any reviewable error?
Jurisdictional error
34 The applicant contended that his primary submission was supported by the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. In a joint judgment, McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) held that pars 476(1)(b), (c) and (e) permitted an applicant for review under Part 8 of the Act to invoke the common law concept of jurisdictional error.
35 At common law, the term "jurisdictional error" covers a number of kinds of error, including ignoring relevant material. In Craig v State of South Australia (1995) 184 CLR 163 at 179, the High Court said:
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.
A failure to take account of a relevant consideration will only constitute a reviewable error, however, if the consideration was one that a decision-maker was bound to take into account.
36 After noting that the limitation in s 476(3) of the Act applied to only s 476(1)(d), 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 as it found. If that is so, the ground in s 476(1)(e) is made out.
37 In a separate concurring judgment, the Chief Justice said at [4]:
As McHugh, Gummow and Hayne JJ point out, a failure by the tribunal to deal, in its reasons for decision, with some assertion of fact made by a visa applicant may, or may not, have consequences for judicial review of the tribunal's decision, either in the Federal Court or in this court, quite apart from whatever consequences it may have under s 476(1)(a).
38 Although Gaudron J differed from the majority on the outcome of Ms Yusuf's application, her Honour's analysis of the relationship of the relevant statutory provisions and the common law concept of "jurisdictional error" was similar to that of the joint judgment. See 180 ALR 1 at [38]-[44].
39 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. The position is best explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39. His Honour said 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).
40 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).
41 It is unnecessary in this case to explore further the nature of the relevant consideration ground. The applicant has not shown that the Tribunal failed to take into account the matters to which it referred.
(1) Report dated 18 January 1999 from Dr Mahalingam
42 As already indicated, the Tribunal specifically referred to Dr Mahalingam's report when it discussed the applicant's claims and evidence. It also considered the evidence constituted by the report in its "Findings and Reasons". The applicant's submission that Dr Mahalingam's report was not taken into account must be rejected. Questions of weight and cogency of evidence are matters for the Tribunal.
(2) Letter dated 24 January 1997 from the RACS to the Department with its attachments (namely, the applicant's 24 January 1997 statutory declaration and his Form 866 protection visa application)
43 Under the heading "Claims and Evidence", the Tribunal summarised the matters contained in the applicant's 24 January 1997 statutory declaration and in his Form 866 application. Much of its "Findings and Reasons" concerned the matters contained in this summary. The applicant's submission that the letter and, more importantly, its attachments were not taken into account must fail. The applicant submitted that the Tribunal cannot have had regard to this material, when it stated that it "would expect" the applicant "to pick up some Khana with which he could communicate …". I reject that submission. It was open to the Tribunal to take this view. Evidentiary matters of this kind, relating to cogency and weight, are matters for the Tribunal. The applicant also submitted that the Tribunal failed to take account of his knowledge of Ogoni customs. This was, however, specifically considered by the Tribunal. As already noted, for the reasons given by the Tribunal, the Tribunal chose to give this consideration "little weight". This assessment was open to it, and was entirely a matter for it.
(3) Letter dated 7 August 1997 from the RACS to the Department
44 The applicant's submission that the Tribunal failed to take account of the submissions outlined in the RACS letter of 7 August 1997 must also fail. As already noted, the Tribunal observed that the applicant had set out his claims in written submissions. In its "Findings and Reasons", the Tribunal considered and made findings about the plausibility of the applicant's account of his journey from Nigeria to Australia. This was, for the most part, the subject of the RACS letter of 7 August 1997. It may be inferred that the Tribunal took account of the letter when it turned to the applicant's claims about his journey. Plainly enough, the Tribunal was neither obliged to accept the applicant's account, nor his explanation as to why he declined to provide further evidentiary support for it. The Tribunal was not, moreover, obliged to address specifically every submission made by the applicant in support of his case: cf Nagarajah v Minister for Immigration & Multicultural Affairs [2000] FCA 1003 at [10]. There is nothing in the Tribunal's reasons, taken as a whole, that would support the proposition that the Tribunal failed to consider this letter.
(4) Article in "The Australian" newspaper, "Nigeria Backs Civilian Rule", appearing on 4 July 1997
45 There is nothing in the Tribunal's reasons to show that the Tribunal failed to consider this 1997 article. It is to be borne in mind that the Tribunal is not bound to refer to every item of material relied on by the applicant: see Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423; Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 at 481 (overruled on a different point). The applicant also referred to the article in connection with his submission that there was an error of law disclosed in the Tribunal's discussion of relocation. I shall deal with this below.
(5) Letter dated 7 April 1998 from the RACS to the Department
46 I have already referred to the contents of this letter, which was in the nature of a submission to the respondent's delegate, and to the Tribunal's reference to submissions such as these in its reasons for decision. In its reasons, the Tribunal directly addressed what the author of the letter called "the central issue", namely, "what persecution the applicant would face in Nigeria as an Ogoni involved in anti-government protests in 1994 and detained from May 1996 until November 1996". The Tribunal expressly turned its mind to the conditions in Nigeria, especially in connection with Ogonis in Ogoniland, in the 1990s and after, including the foreseeable future. Whilst it referred expressly to some sources of country information and not to others that were before it, one cannot infer from this that some material before it was not considered. On the contrary, the Tribunal, in its reasons, indicated that it took account of all information before it. It is only on this basis that it could say, as it did, that it found no reports of "low profile" Ogonis being held for extended periods. In any event, as already noted, since the Tribunal was not obliged to refer specifically to each item of evidence and every submission, one cannot infer that an item of evidence or a submission was not considered simply because it was not expressly mentioned by the Tribunal.
(6) Letter dated 1 September 1998 from the RILC to the Department
47 I have already described the contents of this letter, which was also in the nature of submissions. The applicant relied on the fact that there was so much material in the letter that the Tribunal's failure to refer to it was indicative of the fact that the Tribunal had not taken it into account. I reject that submission and I refer to my earlier observations in connection with the letter of 7 April 1998.
(7) Letter dated 12 March 1999 from the RILC to the Tribunal
48 I have described this letter earlier. The Tribunal specifically noted its receipt of this post-hearing submission on 15 March 1999, and some of the matters addressed in it. It returned to a number of these matters in its "Findings and Reasons". There is nothing in the Tribunal's decision or reasons to justify the conclusion that the 12 March 1999 letter was not taken into account.
(8) DFAT answers to MOSOP questions
49 There is nothing in the Tribunal's decision to warrant the view that the Tribunal failed to consider this matter in so far as it was required to do.
(9) Report by Roslyn Leary
50 This report concerned Mr Nick Dike. At the hearing, the applicant made no submission on this matter. No basis for the submission made in his written contentions has been made out.
(10) The applicant's statutory declaration of 11 January 1999
51 The Tribunal specifically referred to the 11 January 1999 statutory declaration in its reasons for decision, and described it in some detail. It turned to consider the matters raised in that declaration under its "Findings and Reasons". The applicant's submission that the Tribunal did not take the statutory declaration into account is not made out.
(11) Letter dated 11 January 1999 from the RILC to the Tribunal
52 This letter sought access to certain documents or information in the possession of the Tribunal. The Tribunal replied to the letter by letter dated 13 January 1999, and subsequently considered the related issue of procedural fairness at some length in its reasons for decision. The applicant's claim that the Tribunal did not consider the 11 January 1999 letter is not made out.
(12) The testimony of Mr Nick Dike
53 The Tribunal compared and contrasted the evidence of Mr Nick Dike with the evidence of Mr Promise Dike at a number of points in its reasons for decision. There is no warrant for holding that the evidence of Mr Nick Dike was not taken into account in relation to Mr Promise Dike in so far as the Tribunal was required to do.
54 Further, the applicant has not shown that the Tribunal made any reviewable error of this jurisdictional kind because of its approach to any country information or any matter referred to in connection with its s 430 submissions.
55 For the above reasons, the applicant, Mr Promise Dike, has not shown that the Tribunal failed to take into account the matters mentioned. He has not made out any claim of jurisdictional error of the kind referred to in Yusuf. Even if the applicant had established some failure to have regard to one or other of the matters mentioned, it would not, of course, follow that jurisdictional error was shown. This would depend on whether the matter was one that the Tribunal was bound to take into account in the sense referred to by Mason J in Peko-Wallsend. See also Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 at 236-237.
Sections 414 and 415 of the Act
56 The applicant also relied on the asserted failure to take account of these matters in submitting that the Tribunal failed to review the decision as required by s 414(1) of the Act. This submission fails because, first, the applicant has not established that there was any want of consideration on the Tribunal's part and, secondly, because he has not established any failure to "review" the decision in the sense referred to in Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 at [78]. (I make this comment upon the assumption that the approach taken in Anthonypillai is consistent with Yusuf and offers an additional test for reviewable error.) See also Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546 at [24].
57 The applicant also relied on the asserted failure to take account of the matters already mentioned to support a submission that the Tribunal had breached its duties under s 415(1) in that it did not exercise the powers and discretions supposedly conferred by s 54. (As the applicant's counsel noted, the decision under review in this proceeding was made before the commencement of s 424A of the Act.) The submission that the Tribunal was in breach of its duties under s 415(1) because it failed to exercise powers and discretions conferred by s 54 fails. The nature of the obligation imposed by s 54(1) of the Act on the Minister (and his delegate) was considered by Sackville J in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389 at [52]-[57]. This submission fails because, first, the applicant has not established that the Tribunal did not have regard to the pertinent information. Secondly, the obligation imposed by s 54(1) is one imposed on the Minister (and his delegate) and not the Tribunal: see the authorities referred to below in connection with s 57 of the Act.
58 I also reject the submission that the Tribunal was in breach of its duties under s 415(1) because it failed to exercise the powers and discretions supposedly conferred by s 57. In written contentions, counsel for the applicant submitted that the breach of s 415(1) arose because of the Tribunal's failure to give particulars of relevant information in compliance with s 57(2)(a) of the Act. The applicant listed some twenty-five separate items as constituting "relevant information" for the purposes of this provision.
59 The applicant did not address any argument to the Court in support of his proposition that all or any of these twenty-five items constituted "relevant information" as defined in s 57(1) of the Act. Some of the twenty-five items clearly did not fall within this description. Leaving this issue to one side, however, I accept, as the respondent submitted, that s 57 does not impose an obligation on the Tribunal. Section 57 only applies to information that is given by the Minister or his delegate at the primary decision-making stage: see Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315 at 327; Pasini v Boland (1999) 92 FCR 438 at 448; and Thanh Phat Ma v Billings (1996) 71 FCR 431 at 444 per Drummond J.
Relocation submission
60 There were two further submissions made by the applicant's counsel at the hearing. The first concerned the relocation issue. It is, I think, plain enough that the Tribunal addressed the correct questions. The Tribunal considered whether it was reasonable to relocate, taking into account all the circumstances, and, having relocated, whether the applicant would be likely to suffer persecution for a Convention reason. This is reflected in its findings that, even if the applicant were at risk of persecution, he "would be able to relocate and it would be reasonable for him to do so". It is implicit in this finding that the Tribunal found that the applicant would not be likely to suffer persecution for a Convention reason if he were to relocate within Nigeria.
61 I reject the applicant's submission that the Tribunal acted on only the DFAT cable (to which it referred) without taking into account the applicant's particular position and the submissions made by the applicant's advisers on the issue. The Tribunal expressly referred to the applicant's personal circumstances, including his relationship with the police, education, linguistic knowledge, that he had lived outside Ogoniland when young, and the whereabouts of family members. Further, it expressly referred to the post-hearing submission made by his advisers. The Tribunal treated these matters, as well as the DFAT cable, as material to its findings about relocation. I reject the applicant's submission that these matters were incapable of supporting its findings, or that it may be inferred that the Tribunal failed to have regard to other relevant information (as the applicant submitted it was bound to do) simply because it did not specifically refer to that information.
62 In any event, the operative reason for the Tribunal's decision was that it was not satisfied that the applicant had any well-founded fear of persecution for a Convention reason. Strictly, the Tribunal's finding concerning relocation was unnecessary. Therefore, any error in this aspect of its decision would not vitiate the decision: see, e.g., Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 340-341 per Mason CJ and 387 per Toohey and Gaudron JJ.
No evidence
63 Finally, the applicant's counsel submitted at the hearing that there was no evidence or other material to justify the making of the decision since the decision was based on the existence of particular facts which did not exist. The relevant facts that were said not to exist related to the Tribunal's conclusions on credibility. In support of this submission, the applicant's counsel relied on the decision in Minister for Immigration & Multicultural Affairs v Rajamanikkam (2000) 179 ALR 495 where the Full Court said at 502:
Often, the tribunal rejects a visa applicant's claims because the applicant is found not to be a credible witness. There is no reason in principle why a finding of fact upon which that conclusion as to credibility is made should not constitute a particular fact as that expression is used in s 476(4)(b). Whether or not such a finding does so qualify will depend on the circumstances of a particular case. Similarly, there is no reason in principle why, if it is shown that that fact did not exist, the ground of review available under s 476(1)(g) and (4)(b) should not be made out. For example, if the tribunal rejected a visa applicant's evidence because it attributed to that applicant the claim that event A happened, when there was other evidence showing that event A did not happen, the tribunal might reject that applicant's evidence as not credible. If that applicant, by examination of the transcript upon which the tribunal relied, can show that he or she did not say that event A happened, the ground of review might well be made out. The particular fact which was shown not to exist in that example is that the applicant claimed that event A happened.
The Full Court noted, however, at 502:
[T]he conclusion of the tribunal that a visa applicant is not a credible witness may be based upon the impression of the tribunal having had the benefit of seeing and hearing the evidence of the visa applicant. In such a case, it is difficult to conceive of circumstances in which the ground of review in s 476(1)(g) could be made, simply because it would not be possible to prove (except in the most exceptional circumstances) that the tribunal did not form the impressions which it asserted.
64 As the Full Court pointed out in Rajamanikkam at 505, no submission was made in Rajamanikkam that "the overall approach of the tribunal to assessing the respondent's credit itself attracted a ground of review under s 476(1) of the Act". Neither Rajamanikkam nor Ismail v Minister for Immigration & Multicultural Affairs (1999) 59 ALD 773 (also relied on by the applicant) indicate that it is not open to a Tribunal to draw inferences concerning credibility from inconsistencies in the applicant's evidence.
65 The Tribunal did not accept the applicant's evidence on a number of crucial matters. His counsel did not, however, identify any finding concerning the applicant's credibility that depended on a fact that, according to him, did not exist in the sense explained in Rajamanikkam. The applicant's counsel submitted that the Tribunal did not give any reason for rejecting the applicant's evidence that also showed that the Tribunal had approached its task correctly. In substance, the applicant challenged the Tribunal's rejection of his evidence by contending it had no proper basis to do so. This, so it seems to me, amounted to a contention that invites the Court to review the merits of the Tribunal's decision rather than the process by which it arrived at its decision: cf Abebe v Commonwealth (1999) 197 CLR 510 at 579.
66 As McHugh J observed in Ex parte Durairajasingham (2000) 168 ALR 407 at 423, "a finding on credibility … is the function of the primary decision-maker par excellence". His Honour added:
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. In any event, the reason for the disbelief is apparent in this case from the use of the word 'implausible'. The disbelief arose from the tribunal's view that it was inherently unlikely that the events had occurred as alleged.
67 These observations apply to the Tribunal's reasons in this case. The applicant has not identified any fact for which there was no evidence and which did not exist, and on which the decision was based: see Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 221. The ground of review is not made out: see also Pun Choi v Minister for Immigration and Multicultural Affairs [2001] FCA 555 at [24]-[25] per Gyles J.
Further submissions
68 For the reasons given in Nick Dike v Minister for Immigration and Multicultural Affairs [2001] FCA 1030, I reject the applicant's counsel's submission that there was reviewable error in Mr Promise Dike's case as a consequence of the Tribunal's failure to put to him that he and his brother had "got together … and conspired to concoct a story", or as a consequence of failing to put other adverse material to him.
69 In written submission, the applicant by his counsel, made a number of submissions that were not addressed at the hearing. They were:
(1) There was a failure to accord substantial justice or to act according to the merits of the case.
(2) There was a failure to comply with s 430(1) of the Act.
(3) There was a failure to form an opinion as to what was likely to occur if the applicant was returned to Nigeria.
(4) There was a failure to take into account the chance that the applicant was persecuted and there was a burden of proof erroneously imposed upon the applicant.
(5) There was an error in that the Tribunal did not consider "the facts asserted by the applicant which it rejected in accordance with law, as it did not, and could not, conclude that it had no real doubt as to the correctness of its rejection of those facts".
(6) There was an error in that the Tribunal "did not consider the essential questions as to whether the applicant was a refugee, which it was required to do".
(7) There was an error in that the Tribunal "failed to take into account the chance that the applicant was persecuted".
70 These submissions find little support in the authorities: see, e.g., Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Yusuf; Minister for Immigration and Multicultural Affairs v Rajalingam (1993) 93 FCR 220; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559; and Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347. In so far as the authorities provided for any relevant reviewable error, no such error is made out.
71 For the reasons given, there is no reviewable error shown. I would dismiss the application with costs.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.