SGFB v Minister for Immigration & Multicultural & Indigenous Affairs

PROCEEDINGS BEFORE MANSFIELD J 9 Following the rejection of his review on 19 July 2001, the appellant instituted review proceedings in this Court. At the relevant time, a decision of the Tribunal could only be so reviewed on one or more of the grounds set out in subs 476(1) of the Act, (as it was immediately before the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)). At the relevant time, the grounds were limited by subs 476(1) to any one or more of the following grounds: "(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; (b) that the person who purported to make the decision did not have jurisdiction to make the decision; (c) that the decision was not authorised by this Act or the regulations; (d) that the decision was an improper exercise of the power conferred by this Act or the regulations; (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; (f) that the decision was induced or affected by fraud or by actual bias; (g) that there was no evidence or other material to justify the making of the decision." Subsection 476(4) relevantly provided that: "(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." It is noted that par 476(1)(g) and subs 476(4) use the language of par 5(1)(h) and subs 5(3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). 10 The application by the appellant stated that he was aggrieved by the decision because: "1 There was no difference at all between the RRT hearing and any of my previous interviews with DIMA. 2 I was sworn by the Holy Koran to tell the truth and I did. It is the ultimate insult for them not to believe my Koran sworn statements." The application gave the grounds of the application as being: "1 DIMA has advised me that the only avenue of appeal from RRT decisions lies with the Federal Court of Australia. 2. Considering my lack of understanding of the Australian legal system, I would appreciate if the Court could examine my decision from the RRT for possible errors of law." 11 The review was heard at first instance by Mansfield J who dismissed the application. Although it is not obvious that the application complies with the requirements of subs 476(1) of the Act, after hearing the submissions of counsel for the appellant, Mansfield J identified that three general grounds of review were being advanced: · the first was that there was no evidence or other material to justify the making of the decision that the appellant was from Pakistan (see pars 476(1)(g) and 476(4)(b) of the Act). This ground is discussed further below. · the second ground was that the use of the linguistic analysis was wrong in law (see pars 476(1)(c), (d) and (e) of the Act). Mansfield J found no error in the use by the Tribunal of the report of the analyst. · The third ground was that the Tribunal made an error law in the process by which it came to take an adverse view of the reliability of the appellant's evidence, and that such an error was a jurisdictional error (see pars 476(1)(b), (d) and (e)). It was contended that, by concentrating on minor inconsistencies in the appellant's evidence, the Tribunal identified the wrong issue. Mansfield J found no relevant error by the Tribunal. After a detailed consideration of the Tribunal's reasons, his Honour concluded: "I do not think that in any respect the Tribunal is shown to have been unfair in understanding what the applicant said from time to time, or in seeking his comments upon discrepancies in what he had said from time to time. In addition, in the light of the observations above, I am not persuaded that the Tribunal fell into reviewable error by having used those discrepancies [in the evidence of the appellant] to form a view about the reliability of the applicant's claims as to his background, and in conjunction with the language analysis report, not to have been satisfied that the applicant is as he claimed from Afghanistan." Before the hearing in this Court at first instance, the appellant filed 5 affidavits: 1 one from the appellant, sworn on 28 June 2001, which is critical of the linguistic analyst relied upon by the Tribunal, of the Tribunal itself and of the interpreter used in his interview; 2 one from Mohammed Rajab, affirmed on 30 November 2001, declaring that he is a Hazara from Afghanistan and that he met the appellant in Afghanistan on one occasion some 6 years previously; 3 one from Ali Khan Rezaee, affirmed on 6 December 2001, declaring that he is a Hazara from Afghanistan and that he recognised the appellant whom he saw often in Afghanistan although he did not know him; 4 one from Alison Lowrie, a solicitor who had assisted the appellant, sworn on 9 December 2001, swearing that the appellant first informed her on 28 October 2001 that Mohammed Rajab knew the appellant in Afghanistan; 5 one from Melissa McAdam, another solicitor who had assisted the appellant, affirmed on 11 December 2001, declaring that she had not asked and the appellant had not informed her that there was anyone in Australia who had known him in Afghanistan. The appellant sought to have these affidavits admitted as "fresh evidence" in relation to the first ground of his appeal (i.e. that there was no evidence or other material to support the decision). Mansfield J declined to admit them holding that they were of no relevance. This issue is discussed further below.

THIS APPEAL 12 The appellant has appealed from the decision of Mansfield J. Again the grounds of appeal are not helpful, but it would appear from the appellant's written submissions that there are three grounds of appeal: (1) the Court below erred in failing to admit the further affidavit material; (2) the Court below should have found that the further affidavit material established, or was capable of establishing, that a fact as found by the Tribunal, namely that the appellant neither lived nor worked in Afghanistan, did not exist; (3) the Court below should have held that the Tribunal asked itself the wrong questions and identified the wrong issues and thereby committed a jurisdictional error.

13 It is convenient to look at the first two grounds together. 14 The case was argued before Mansfield J and before this Court on the basis that the affidavit material sought to be read before Mansfield J was "fresh evidence" admissible under s 27 of the Federal Court of Australia Act 1976 (Cth) which provides: "In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken: (a) on affidavit; or (b) by video link, audio link or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or (c) by oral examination before the Court or a Judge; or (d) otherwise in accordance with section 46." 15 This misunderstands the position. Mansfield J was exercising original jurisdiction (subs 19(2) of the Federal Court of Australia Act). The Court has the power to receive further evidence in relation to such jurisdiction, providing that the evidence is relevant. With the leave of the Court, this can include affidavit evidence (see O 54B r 7 of the Federal Court Rules). 16 The question is one of relevance. Mansfield J rejected the evidence on the basis that it was not relevant. His Honour gave a number of reasons for this. It is sufficient to mention one. His Honour found that the evidence was not relevant because it would not and did not establish that there was no evidence or other material before the Tribunal to support its finding. According to Mansfield J: "The proposed further evidence, in addition, would not demonstrate in any event that there was no evidence upon which the Tribunal could have reached the conclusion which it did. If accepted as reliable evidence, it would clearly bear directly and heavily upon the conclusion as to the applicant's nationality. The Tribunal may have wished to have the two witnesses available for questioning, to assess the reliability of their affidavits. It may have formed an adverse view as to the reliability of what each of them said. Neither professed to have had long exposure to the applicant. One said he had seen the applicant only once, some years before when he was only about 15 years of age. The other had never had contact with the applicant, but said he had seen him from time to time in the local bazaar. But, more importantly, the other evidence upon which the Tribunal did reach its conclusion (subject to considering the further grounds of review) remains unimpeached. The linguistic analysis report provides some evidence upon which the conclusion of the Tribunal about the applicant's nationality could have been reached. The proposed further evidence therefore would not establish that there was no evidence upon which it could have reached that conclusion. The Tribunal's observations about why it regarded the applicant as an unreliable witness also are capable of leading it to the conclusion it reached, and would retain that character notwithstanding the proposed further evidence. There was thus material upon which the conclusion of the Tribunal might have been based, notwithstanding the proposed new evidence; …" In reaching this conclusion, Mansfield J has read the requirements of par 471(1)(g) as being requirements that must be met in order for an appellant to succeed on this review, in addition to meeting the requirements of par 471(4)(b). 17 The High Court has recently considered the meaning and effect of par 476(1)(g) of the Act in Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 190 ALR 402 ("Rajamanikkam"). It is not altogether clear what ratio can be gleaned from that case as it affects this case. However, the individual Justices of the Court did consider the interrelationship of pars 471(1)(g) and 471(4)(b). 18 Gleeson CJ (at [34] and [41]) placed emphasis on par 471(1)(g)). So, His Honour explained, compliance with subs 471(4), whilst necessary, was not sufficient. Ultimately, it was necessary to establish the ground of appeal under subs 471(1). Callinan J took the same approach (at [151]): "Subsection (4) was obviously not intended to expand the basis for review for which subs (1)(g) provided. This is clear from the opening words of the provision which employ the negative expression, 'the ground ... is not to be taken to have been made out unless ….' (emphasis in original). A different interpretation might have been available had the subsection been expressed in the affirmative to suggest that one, but perhaps not the only basis for the application of s 476(1)(g) would be, the making of a decision based on a non-existent fact. Subsection (4) stated: The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: … (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.'" On the other hand, Gaudron and McHugh JJ, in a joint judgment at [54], could see: "… no reason why the 'no evidence' ground should not be approached …. on the basis that it is a discrete ground of review, the precise content of which is identified by the succeeding paragraphs of subsection (4)." Clearly enough, they placed the emphasis upon par 471(4)(b) as identifying the entire content of par 471(1)(g). It would also seem clear that Gaudron and McHugh JJ accepted that their interpretation of the meaning of the relevant provisions would result in merit review, at least within the parameters of a "critical fact" (at [47]-[58]). If the approach of Gaudron and McHugh JJ represented the view of the Court, then it would seem clear that Mansfield J was in error in holding that the evidence should not be admitted on the balance of relevance. 19 The approach of Kirby J is more difficult to characterise. He said at [111] - [112]: "… [A]s I would read the interaction of s 476(1)(g) with s 476(4), the latter is not a qualification of the application of the 'primary' requirement for judicial review stated, as such, in s 476(1)(g), so much as a statement of the content of that application, that is, an exposition of the particular circumstances in which, for these statutory purposes, a 'no evidence' ground is taken to apply. Viewed in this light - which appears to be the way Mason CJ treated the ADJR Act equivalent ground in Bond - the statutory 'no evidence' ground of judicial review is both wider and more specific than was the case with 'no evidence' grounds for judicial review at common law. This does not read s 476(1)(g) out of the Act. It simply gives that paragraph particular content. So much is made clear by the words of s 476(4) themselves. The ground specified in para (g) of s 476(1) is not to be taken to have been made out unless the requirements of paras (a) or (b) of s 476(4) are satisfied. So far as operative effect is concerned, therefore, s 476(1)(g) has none unless one of the two points in s 476(4) is satisfied. … there is nothing offensive to the provision of relief by way of judicial review in interpreting s 476(4)(b) of the Act to cover a decision based on a 'particular fact' so long as that fact is not some inconsequential or minor fact or item of evidence on the way to reaching the 'decision' in question." (references omitted) Paragraph [119] of the decision is of like effect. As Mr Tilmouth QC argued and Ms Maharaj appeared to concede, this would seem to be consistent with the approach of Gaudron and McHugh JJ. 20 However, his Honour's comments need to be understood in the context of what his Honour had to say at [113]: "It does not involve an undue intrusion of the judiciary into the fact-finding processes of an administrative decision-maker to conclude that where, say, a critical fact is found to exist without any foundation in evidence or other material, the judge, supervising the administrative decision-making process for legal error, will set aside such a flawed decision and require it to be made again, freed from such an error. As Deane J indicated in Bond, where a reviewable decision made under a statute by a repository of statutory power is not supported by some probative material properly before the decision-maker, the 'decision', resting on such a foundation, will be invalid. In earlier times, at common law, this would have been explained by resort to the fiction that the parliament could not have 'intended' that a conclusion reached, resting on a mistaken view as to the existence of a critical fact, would be a 'decision' of the kind for which it had provided. The judge ordering review is confined to a proper and limited role. He or she does not substitute a decision on the facts or an opinion on the merits of the evidence for that made by the repository entrusted with such functions. All that is done is to set aside the flawed 'decision' and to require that a true 'decision' be reached without a disqualifying basis resting on the existence of a particular fact which the applicant for relief can show did not exist." (references omitted) Similarly, at [120]-[121] Kirby J commented: "The Full Court correctly stated that whether or not a finding as to the credibility of an applicant for a protection visa was a finding of a 'particular fact' would depend on the circumstances of the particular case.And that an applicant would still have to surmount the two hurdles established by the terms of s 476 of the Act as it stood at the relevant time: · The decision-maker must have 'based' the decision in the existence of the particular fact rendering it, as it is sometimes described, 'critical' in the circumstances; and · The applicant must be able to show that the fact did not exist, that is, that there was no evidence or other material concerning the fact before the decision-maker 'to justify the making of the decision'. … In using the wording 'particular fact', it is suggested that something more 'particular' and 'factual' than the decision on the ultimate fact in issue was contemplated by the terms of s 476(4) . Yet it still had to be a 'particular fact' upon which the decision-maker 'based the decision' and the consideration that that fact did not exist had to be such as to deprive the 'decision' of the tribunal of evidence or other material justifying its making." (references omitted) It would seem from this that Kirby J would interpret the relevant "fact" to be a fact which is "critical" and for which there is no "foundation in evidence or other material". Although this bears a similarity to the position of Gaudron and McHugh JJ, it is, nevertheless, fundamentally different to it. Indeed, the result would seem to be there is a majority comprising Gleeson CJ, Kirby and Callinan JJ that evidence cannot be called to prove that a fact did not exist for the purposes of subs 471(4) unless there was "no foundation in evidence or other material" before the Tribunal for that fact. This seems consistent with the clear view of each of those Justices that the relevant provisions do not provide for "merit review". 21 On our understanding of the majority position of the High Court in Rajamanikkam, it confirms the approach taken by Mansfield J. It confirms that this Court cannot interfere with a decision of the Tribunal unless it can be shown either that there was no evidence before the Tribunal to support that decision or, at least, that any further evidence as may be received has the necessary consequence that there is no remaining evidence to support the Tribunal decision. 22 In this case, the fact that there was evidence before the Tribunal upon which it could base its decision necessarily meant that the affidavit evidence sought to be read in this Court was not relevant to any issue before this Court. Mansfield J was correct to reject it.

JURISDICTIONAL ERROR 23 For the reasons given by Mansfield J, we agree that there was no jurisdictional error by the Tribunal. 24 For these reasons, the appeal should be dismissed COSTS 25 When this matter first came before a differently constituted Full Court, the written submissions of the Minister did not deal with the High Court decision in Rajamanikkam, although counsel for the Minister was prepared to address that matter. The Court adjourned the matter. Given the potential impact of the High Court's decision, the Court also referred the litigant to the Registrar under O 80 of the Federal Court Rules in order for pro bono counsel to be appointed. Mr Tilmouth QC, appearing with Mr Heuzenroeder for the appellant, put submissions to us in relation to the High Court's decision in Rajamanikkam. We have been assisted by those submissions, and by those put by Ms Maharaj who appeared for the Minister. 26 Mr Tilmouth sought an order for costs against the respondent. The respondent has ultimately been successful in this appeal and there is no basis for an order for costs in favour of the appellant. On the other hand, the submissions for the respondent have not been wholly accepted and there may be some fault on the part of the respondent in relation to the first hearing before the Full Court when the matter was adjourned. 27 In all the circumstances, the appropriate order is that each party bear its own costs of this appeal. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Appellant: Mr S Tilmouth QC with Mr H Heuzenroeder