SGLB v Minister for Immigration & Multicultural & Indigenous Affairs

PROCEDURAL BACKGROUND 1 On or about 8 June 2000, the appellant arrived in Australia by boat and without a visa. He was and is a "non-citizen" as defined in the Migration Act 1958 (Cth) ('the Act"). He was taken into detention and very soon thereafter he was interviewed by a Departmental officer. On 27 September 2000, he applied for a protection visa. In order to obtain such a visa it was necessary that the Minister be satisfied that "Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol": s 36(2)(a) of the Act. In general terms such an obligation would arise if the appellant was a "refugee" as defined in Article 1A(2) of the Refugees Convention. 2 The appellant's application was initially considered by a delegate of the Minister. On 8 December 2000, the delegate refused the application. The appellant sought a review of that decision by the Refugee Review Tribunal. On such a review the Tribunal may exercise all of the powers and discretions of the delegate: see s 415(1) of the Act. On 26 April 2000, the Tribunal affirmed the decision not to grant a protection visa. 3 Although the detail is not altogether clear on the material before me, it would appear that the appellant then instituted proceedings in this Court to review the decision of the Tribunal. It would seem that the parties before the Court were agreed that the hearing before the Tribunal had miscarried on the basis that the appellant had been provided with a Farsi interpreter whereas he required the assistance of an Arabic interpreter. By consent the determination of the Tribunal was set aside and the matter was remitted to it. I note that, notwithstanding the apparent reasons given by this Court for overturning the first decision of the Tribunal, the appellant subsequently sought and was provided with a Farsi interpreter. 4 The Tribunal again considered the claim for a protection visa. Its hearing was delayed in part by requests for adjournments made by the appellant on the basis of his severe depression and psychological problems. When the hearing did proceed the appellant gave oral evidence before the Tribunal, but in the course of that evidence he became "highly agitated" and it was necessary to conclude his evidence in writing. In the result the Tribunal gave its decision on 13 August 2002. It again affirmed the decision not to grant a protection visa. 5 The appellant again sought review in this Court. The review was instituted by an application filed on 29 November 2002. The application is not particularly helpful in identifying what jurisdiction this Court has to review the decision of the Tribunal. The appellant was represented at the time and the application was filed by a firm of solicitors. It is possible, of course, that they were acting on a pro-bono basis, but I am not certain that that excuses the filing of an application which does not reveal a clear basis for jurisdiction. The application does mention "a contravention of a jurisdictional factor" and does seek an order requiring the Tribunal to reconsider the appellant's case "according to law". Taking a particularly generous view of it, this may suggest that the appellant is seeking a writ of mandamus against an officer of the Commonwealth. On that basis this Court has jurisdiction to hear the matter pursuant to s 39 of the Judiciary Act 1903 (Cth). If it were thought that this approach is too generous then the difficulty could be resolved by giving the appellant leave to amend the application by inserting immediately after the words "Amended Application for Review" the words "Judiciary Act 1903 section 39B" and by deleting paragraph 3 of the "Orders Sought" and inserting in lieu the words, "Mandamus to the Refugee Review Tribunal directing it to reconsider the application for a protection visa". I grant the appellant leave to make such an amendment. 6 The powers of this Court on any review are limited in a number of ways. This includes the limitations within s 39B of the Judiciary Act 1903 (Cth) (including whatever limitations are contained within s 75(v) of the Commonwealth Constitution). It also includes the provisions of s 474 of the Act as understood in the light of the recent High Court decisions in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 ("S134") and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ("S157"). Section 474 provides: "474 Decisions under Act are final (1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. (2) In this section: "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). (3) A reference in this section to a decision includes a reference to the following: (a) granting, making, suspending, cancelling, revoking or refusing to make an order or determination; (b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa); (c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument; …" The decision of the Tribunal in this case was a "privative clause decision". It follows that this Court did not have jurisdiction in relation to decisions of the Tribunal: "which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act" (S157 at [76]). In determining whether or not a particular error is a "jurisdictional error" or not it is necessary to have regard to the whole of the Act, including s 474. (See S157 at [77]-[78]). Errors that may be characterised as "jurisdictional errors" include errors of law: "which causes it [an administrative tribunal] 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." (Craig v South Australia (1995) 184 CLR 163 at 179). In particular, a failure of an administrative tribunal to afford procedural fairness in accordance with the relevant statutory scheme is a jurisdictional error (see S157 and Re Refugee Review Tribunal; Ex parte AALA (2000) 204 CLR 82). So too is the making of findings and the drawing of inferences in the absence of evidence: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357. What is clear is that this Court does not have jurisdiction to engage in "merit" review. 7 When the application for review first came before this Court on 13 September 2002, it was transferred to the Federal Magistrates Court pursuant to s 32AB of the Federal Court of Australia Act 1976 (Cth). The Federal Magistrate's jurisdiction was also limited to the correction of "jurisdictional errors". The Magistrate delivered his decision on 20 December 2002, dismissing the application on the basis that there was no error of law by the Tribunal in reaching its decision. 8 Pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth) the applicant has appealed the decision of the Federal Magistrate to the Full Court of this Court. Under s 25(1A) of that Act the Chief Justice has advised that he considers it appropriate that the appellate jurisdiction of this Court be exercised by a single Judge. The result of the foregoing is that the appellant comes before me after being in detention for more than two years and nine months. He is now unrepresented, although he has sought an adjournment from me so that he can obtain representation. His appeal grounds are unhelpful, suggesting generally that his case has not been "considered deeply". This is not a ground of appeal. In any event it is untrue as the above history shows. Whatever else may be said, the appellant's case has received very extensive consideration over many years. Given that the appellant is unrepresented, I propose to treat his appeal grounds as being a general ground that the learned Federal Magistrate erred in not finding that the decision of the Tribunal given on 13 August 2002, involved a jurisdictional error.