Application for Judicial Review
8 On 27 March 2003, the applicant issued proceedings in this Court. The applicant is now unrepresented. The documents filed by the applicant do not assist in identifying either the jurisdiction of this Court or the grounds on which the proceedings are brought. However, Ms Maharaj, who appeared for the respondent, informed me that the respondent accepts that the proceedings are instituted pursuant to s 39B of the Judiciary Act 1903 (Cth) and that the applicant is seeking certiorari, mandamus and prohibition against the respondent.
9 The jurisdiction of the Court under s 39B of the Judiciary Act 1903 (Cth) is subject to the limitations in the Migration Act 1958 (Cth). In particular, it is subject to s 474 of the Migration Act 1958 (Cth). In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 ('S134') and Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 ('S157') the High Court 'read down' the otherwise broad terms of s 474. In light of those decisions,the jurisdiction of this Court in relation to judicial review of the decisions of the Tribunal is limited to 'jurisdictional errors' (S157 at [76]). In determining whether or not a particular error is a 'jurisdictional error', it is necessary to have regard to the whole of the Act, including s 474 (see S157 at [77]-[78]).
10 The issue before me is whether there is any jurisdictional error in the reasoning or decision of the Tribunal.
11 In reaching its decision in this case the Tribunal properly noted that it was required to be positively satisfied that there was non-compliance with the obligation to answer the questions correctly. The Tribunal then analysed the material before it. It relied upon the following material:
(a) Information from official sources in Pakistan revealing that a family with the same name as the applicant and with various other details very similar to those of the applicant and his family, were Pakistani citizens from Quetta, Pakistan;
(b) Information from Dr Watt, a 'forensic anthropologist', who claimed an expertise in being able to identify persons through the comparison of facial features from photographs. He described this process as 'facial mapping'. Dr Watt claimed that that the applicant was the same person as the person in a photograph obtained from the official sources in Pakistan;
(c) Information from a 'reliable source' living in Australia who claimed to know the applicant and who said that the applicant was a plumber and electrician from Quetta, Pakistan;
(d) Information from various Australian newspapers which had investigated the claims made by the applicant. Those investigations included interviews made in Quetta, Pakistan with persons who claimed to know the applicant and who identified him as a Pakistani from Quetta. They also included interviews of persons from the village of Charkh in Afghanistan (the village that the applicant claimed to come from) who did not know of the applicant;
(e) Information from linguistic experts that the applicant was from Pakistan, not Afghanistan.
12 The Tribunal rejected some of the material put forward by the applicant. This consisted of the applicant's own statements and evidence before the Tribunal, letters from two Afghanis (Messrs Rezaee and Kamali) claiming that they knew the applicant in Afghanistan and a letter from the District Governor of the Wahdat Islamic Party in the District of Shareston in Afghanistan stating that the applicant and his family are from Afghanistan.
13 The Tribunal did not apply or adopt some other evidence and arguments put forward by the applicant. This included a detailed criticism of the use of linguistic evidence in this and similar cases. It also included a statement by Dr Kemp, a psychologist who has studied 'facial mapping'. Dr Kemp was critical of the methodology of 'facial mapping' both generally and in this particular case by Dr Watt. His criticisms do raise significant concerns, particularly in the absence of any opportunity for Dr Watt to respond to them. Nevertheless, the Tribunal (like the delegate) accepted Dr Watt's evidence on the basis that:
'Although the forensic value of Dr Watt's report was questioned by Dr Kemp who concluded there must be some uncertainty regarding the validity of the conclusions reached by Dr Watt, Dr Kemp did not find or conclude that the person in the photographs submitted was not the same man or that the conclusion reached by Dr Watt was wrong. …[It] is significant that although he referred to "some uncertainty" he did not contradict Dr Watt's conclusions that the person in the photographs was the same person, namely the applicant.'
Of course, as Dr Kemp's evidence was that the methodology of 'facial mapping' did not enable Dr Watt or anyone else to say with certainty that two photographs were of the same person it was hardly likely that he would himself engage in the very process of identification that he criticised in relation to Dr Watt.
14 The applicant appeared before me assisted by a translator. Essentially he put to me that the Tribunal was in error in concluding that the applicant was a Pakistani.
15 Ms Maharaj for the respondent submitted that even if there were errors in the reasoning of the Tribunal none of these constituted a 'jurisdictional error'. In particular, Ms Maharaj submitted to me that if there were any errors, they were errors of fact, or errors in factual reasoning and analysis, and these were errors that were within the jurisdiction of the Tribunal.
16 I have considered all of the matters put to me. The relevant principle is clear enough. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessment of that material was a matter for the Tribunal, not for this Court. The applicant has asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]:
'A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999) 197 CLR 611]…at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 (FC)…I agree with the remarks of Katz J in Zuway [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal.'
This needs to be qualified at least to the extent that where the factual conclusion is so unreasonable that no reasonable person acting within jurisdiction and according to law could have reached it then there may be jurisdictional error: see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 230; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [39]-[53], [100]-[103], [122]-[147], [183]-[194]. However, there is no such error in this case, whatever might be thought of the analysis by the Tribunal. Plainly there was material before it that justified its conclusion. Whatever might be said about the reasoning of the Tribunal there is no basis for doubting its conclusion. It certainly could not be said that the conclusion is so unreasonable that no reasonable person could reach it.
17 Having concluded that the applicant was not from Afghanistan, but instead was from Pakistan, the conclusion by the Tribunal that the temporary visa should be cancelled was almost inevitable. If the correct information had been given in the application as is required by s 101 of the Act it would seem clear that the applicant would never have been granted a visa in the first place.
18 In the absence of any jurisdictional error in the reasoning or decision of the Tribunal, the application for judicial review must be dismissed. I will hear the parties as to costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.