SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal from orders made by a Federal Magistrate in which the learned Federal Magistrate dismissed an application made by the appellant for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 21 July 1998. 2 The Chief Justice has given a direction that the matter be heard by one judge rather than three in the exercise of the appellate jurisdiction of this Court. 3 For the benefit of the appellant, it is appropriate to first identify the different roles and functions of the Court and the Federal Magistrates Court as compared to the role of the Tribunal. 4 The Tribunal in making its decision in 1998 to affirm the decision of a delegate of the Minister not to grant a protection visa was undertaking and executing the executive power of the Commonwealth pursuant to the Migration Act 1958 (Cth). The Tribunal standing in the shoes of the delegate of the Minister re-examined the factual material and dealt with the claims of the then applicant on the merits afresh. 5 The task of the Tribunal, as was the task of the Minister, was to assess and consider all the claims of the applicant including the issue as to whether the applicant was owed protection obligations by this country under the Refugee Convention as amended by the Protocol. It is important to understand, however, that s 65 of the Migration Act requires that the Tribunal grant a visa only if it is satisfied of certain things. 6 Relevantly here, that required, for the Tribunal to grant a protection visa, that it be satisfied that Australia owed protection obligations under the Convention to the appellant. If the Tribunal was not satisfied that Australia owed those protection obligations, it was obliged by the statute to refuse the grant of a visa. Thus, the hearing before the Tribunal was the place where the claims of the appellant were dealt with on their merits. 7 The legislative structure of the Migration Act together with the Judiciary Act provide for limited grounds of review of the decision of the Tribunal by the Court. The hearing before the Court, in this case at first instance before the Federal Magistrates Court, is not a review of all the facts for a second time - the application to the Magistrates Court from the Tribunal is not a rehearing of the claims on the merits. 8 The structure of the legislation, being the Migration Act and in particular s 474 of that Act, as interpreted by the High Court in Plaintiff S157 of 2002 v Commonwealth (2003) 211 CLR 476 only entitles the Federal Magistrates Court or this Court to interfere with what the Tribunal has done if there is found to be what is referred to as jurisdictional error. 9 What that means is as follows: the error to be demonstrated as committed by the Tribunal must be one that reveals a failure to carry out its statutory task. That is, it must be shown that the statutory authority and duties placed upon the Tribunal have not been complied with. Examples of that kind of error are as follows: that the Tribunal has misunderstood the correct question that it should be dealing with; that the Tribunal has failed to deal with the claims as they are put by the applicant; that the Tribunal has failed to afford the applicant procedural fairness in the way it dealt with the matter; that the Tribunal failed to take into account a consideration the law made compulsory to consider; and that the Tribunal took into account a consideration that the law made compulsory not to consider. 10 These are the main examples. Conformably with High Court authority, factual error is rarely reflective of jurisdictional error. There may be circumstances where findings of fact are such as to demonstrate that the Tribunal has misunderstood its task. There may be circumstances where the findings of fact are so irrational or capricious as to display a failure of the Tribunal to attend conscientiously and appropriately to its statutory obligations. 11 Within the kinds of boundaries that I have just identified the findings of fact and the assessment of evidence is a matter for the Tribunal in the exercise of the executive power. The Parliament has chosen not to permit the courts to review factual material beyond the proper confines of identifying jurisdictional error. It is against that legal background that the appellant needs to understand the reasons for the disposition of his appeal. 12 It should be plain, I hope, from what I have said that it is simply outside my statutory authority and judicial authority to make up my own mind as to whether Australia owes the appellant protection obligations. The only task I am permitted today is to seek to identify whether the learned Federal Magistrate committed any reviewable error in his approach to the dismissal of the application made in respect of the Tribunal's decision. 13 The notice of appeal from the Federal Magistrate's decision identified the following grounds: