consideration
19 I consider that the Tribunal was obliged to accord the applicant procedural fairness in the course of its hearing: see Re Refugee Review Tribunal: Ex parte Aala (2000) 176 ALR 219; Muin v Refugee Review Tribunal [2002] HCA 30, (2002) 190 ALR 601. However, despite his claims to have requested, and to not have been granted, a hearing before the Tribunal, I am not persuaded that the applicant was denied procedural fairness. He was represented at the hearing by solicitors. A hearing was conducted on 25 October 2001. His solicitors made a detailed written submission to the Tribunal on 4 September 2001, as well as attending at the hearing. No doubt those solicitors considered whether, at the hearing, the applicant should give evidence to the Tribunal. The fact that he did not do so, and the fact that he apparently expected to have the opportunity to do so, does not in the circumstances indicate that the Tribunal failed to accord him procedural fairness.
20 I am also not persuaded that the Tribunal erred in law in making the findings of fact which it did. I have carefully considered the transcript of the applicant's examination by the delegate which took place on 3 March 2001. It provided a proper foundation for the specific findings of fact which the delegate made, and which the Tribunal adopted, as to the nature of the applicant's work with KHAD. Contrary to the applicant's specific assertions, it records the applicant as having asserted that his responsibilities with KHAD were important and that his department was like "the heart of the organisation" as it was a "very very important department". He confirmed during that examination that he had joined KHAD in 1980 during his last year of school, and that for two years KHAD had been a civilian state information service, but it converted to a military information service in 1982. He confirmed that he was a member of PDPA and was sponsored by three permanent members of PDPA before he was eligible to be appointed to KHAD. He confirmed that after a short time he had been transferred to the L35 Department of KHAD, and was promoted to supervisor of that department, and that he held that office until 1992. He confirmed that he had been sent to Uzbekistan by the then Soviet KGB for training, and that at that time he attended seminars where he received training in recruitment techniques, photographic and filing training and the use of hand grenades and general military training. He confirmed that ultimately his rank was the highest rank that was achievable in that office, namely the equivalent of an army major.
21 As noted, the applicant further said in that interview that the L35 Department of KHAD was like "the heart" of the organisation, and that he operated three divisions: Statistics Operative, Statistics Agentura, and Archives. He described in detail to the delegate the activities of those divisions. The Statistics Operative division opened and managed files regarding particular active opposition individuals, groups, organisations and political parties involved in anti-government activities. That included searching and collecting information about those entities, recording that information on files, and providing that information as requested to other officers of KHAD or to other government departments. The Statistics Agentura division dealt with the opening and management of files of KHAD secret agents. He confirmed that, as a result of handling the files of persons arrested by KHAD, he would be aware of the arrest and, in respect of persons under 65 years of age, he would from time to time learn of those who had died in detention as a result of ill-treatment and torture. Both the delegate and the Tribunal acknowledged that the applicant, in his evidence, claimed that he did not see photographs of tortured people, but that he did see files reporting deaths of persons in custody. The findings were made, despite their awareness of his evidence on that topic, on the basis of the other evidence he gave in that interview.
22 There is no dispute that the independent country information confirmed the use of torture and ill-treatment by KHAD officers to punish or to extract information. The Tribunal's description of that information was unchallenged. Nor was there any argument that the practices by KHAD, which the Tribunal accepted on the basis of independent evidence, did constitute a "crime against humanity" within the meaning of Art 1F.
23 Both the delegate, and the Tribunal by adoption, considered whether the applicant was complicit in those crimes. The Tribunal's reasons for concluding that he was complicit in KHAD's crimes against humanity are based upon the role and status he enjoyed in the L35 Department of KHAD in the period of time he was employed there. It concluded, as a matter of inference, that the applicant would necessarily have attained knowledge of the likely consequences of the activities of other officers of KHAD, and he had acknowledged that he was aware that people died in KHAD custody as a result of torture or ill treatment. It concluded that the applicant was aware of the purpose and consequences of the L35 Department collecting and passing on information to other officers of KHAD and other government departments. The applicant acknowledged that he did nothing to distance himself from those acts, although he claimed he had little power to do so. During his period of 12 years or so working for KHAD he sought and was granted promotions routinely. It was therefore open to the Tribunal to conclude, notwithstanding the applicant's assertion to the contrary, that the applicant was involved in the process that he knew could end in human rights abuses, and "shared the purpose and knowingly and voluntarily participated in the chain of these activities".
24 Although there are other matters to which the applicant has pointed which might indicate that the Tribunal might have reached a different conclusion about his status in KHAD, about the nature of his job in KHAD, and about whether he did participate or have knowledge of the consequences and purpose of collecting and passing on information within KHAD, including because of the relatively peaceful situation in Bamyan Province, or because of his level of juniority in KHAD, those are matters of fact upon which the Tribunal made findings by adopting those of the delegate. It is not shown to have erred in any legal way by making those findings of fact.
25 In my view, the applicant's complaints about the Tribunal's findings of fact amount to an attack upon the merits of those findings of fact and an attempt to have the Court substitute for the findings of fact made by the Tribunal other findings which the Court is asked to make on its review of the material before the Tribunal. That is not a course which the Court is permitted to undertake. The appeal from the Tribunal under s 44 of the Administrative Appeals Tribunal Act is confined to errors of law. It is not an error of law to find a fact or facts where there is evidence upon which the fact or facts may have been found, simply because a different mind might not have found the same fact or facts on the same evidence: see generally Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356. That is, however, in essence what the applicant's contentions amount to because I am satisfied that there was material before the Tribunal upon which it could, without legal error, have reached the findings which it expressed for the reasons given.
26 Consequently, in my judgment, the applicant has not established any error of law or any jurisdictional error on the part of the Tribunal either in the way that is explained in Craig v The State of South Australia (1995) 184 CLR 163 (Craig) or in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 (Yusuf).
27 In addition, in my opinion, the effect of s 474(1) of the Act is to extend the jurisdiction of the Tribunal so that the type of jurisdictional error which was discussed in Craig and Yusuf is no longer jurisdictional error on the part of the Tribunal. The Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 (NAAV) (Black CJ, Beaumont and von Doussa JJ, Wilcox and French JJ dissenting) decided that, once the Refugee Review Tribunal's jurisdiction is enlivened by a valid application under s 414 of the Act, the manner of exercise of its authority and powers falls within the expanded area of authority and powers brought about by s 474(1) of the Act. Its expanded jurisdiction means that failure to comply with the obligation to accord procedural fairness does not amount to jurisdictional error: per Beaumont J at [113]-[114], and per von Doussa J at [636] and [648]-[651]. For the same reasons, even where a Tribunal makes errors of law or wrong findings of fact this does not amount to jurisdictional error.
28 I consider that the decision in NAAV applies with equal force to the present application involving a decision of the Tribunal. The Tribunal's review of the decision of the delegate of the respondent was under s 500(1)(c) of the Act. Section 476(1) of the Act states that "despite any other law", the Court does not have any jurisdiction in relation to a "primary decision". The expression "primary decision" is defined in s 476(6) relevantly to mean a "privative clause decision" that has been reviewed under s 500. The term "privative clause decision" is defined in s 474(2) of the Act. Section 474(2) is in the following terms:
"privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)."
The Tribunal's decision is a decision of an administrative character made under the Act, and is not a decision referred to in subs (4) or (5) of s 474. Consequently, in my view, the right of appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act, which would otherwise be available to the applicant from the Tribunal's decision, is not available. Section 475A of the Act, however, preserves or recognises the Court's continuing jurisdiction under s 39B of the Judiciary Act, and as that is in a real sense the only available basis upon which the present application could be maintained, I have treated the application as having been made on that basis.
29 The decision of the Tribunal, being a privative clause decision, is however within the extended jurisdictional web created by s 474(1) of the Act, as explained in NAAV. The complaints of the applicant, even if made out, would not amount to jurisdictional error so as to enliven the power under s 39B of the Judiciary Actto declare the Tribunal's decision invalid.
30 Accordingly I have reached the view that the application must be dismissed. I so order. In this matter I see no reason why the normal rule as to costs should not apply. I order that the applicant pay to the respondent costs of the application.