TOUFIC DAHER v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Mr Daher applied to the Refugee Review Tribunal for a review of the primary decision. On 25 August 1995, the Refugee Review Tribunal affirmed the affirmed the primary decision but on different grounds. The Refugee Review Tribunal found that Mr Daher fell within the definition of a refugee set out in art. 1A(2) of the Convention and Protocol but that, as he had taken part in the massacre of civilians in the Sabra and Chatila refugee camps, he had committed actions which amounted to crimes against humanity or, alternatively, serious non-political crimes, and he was thereby excluded from protection by art. 1F(a) and (b) of the Convention. The Migration Act confers jurisdiction upon the Administrative Appeals Tribunal to review decisions refusing to grant a protection visa relying upon art.1F of the Convention. Section 500 of the Act provides, inter alia: "500. (1) Applications may be made to the Administrative Appeals Tribunal for review of: ... (c) a decision to refuse to grant a protection visa or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2); other than decisions to which a certificate under section 502 applies. ... (3) A person is not entitled to make an application under subsection (1) for review of a decision referred to in paragraph (1)(b) or (c) unless the person would be entitled to seek review of the decision under Part 5 or 7 if the decision had been made on another ground. (4) Decisions referred to in subsection (1) are not reviewable under Part 5 or 7. ..." In reliance upon this section, Mr Daher applied to the Administrative Appeals Tribunal for extension of time to lodge an application for the review of the decision of the Refugee Review Tribunal refusing refugee status in reliance upon art. 1F of the Convention. On 2 February 1996, the Administrative Appeals Tribunal held that it had no jurisdiction to review the decision of the Refugee Review Tribunal. Accordingly, the application for an extension of time was refused. Two proceedings were then commenced in the Federal Court. One purported to be an appeal under s44 of the Administrative Appeals Tribunal Act 1975 (Cth) and the other an appeal under Part 8 of the Migration Act. It is not necessary for present purposes to determine which was the correct proceeding and we make no comment on that point. Before the learned trial Judge, it was put on behalf of Mr Daher that the Administrative Appeals Tribunal had jurisdiction either because the decision of a Refugee Review Tribunal was a decision as described in s500(1)(c) or, alternatively, that the effect of the decision of the Refugee Review Tribunal was to vary the decision of the Minister's delegate and that such decision was therefore, by the operation of s415(3)(b), to be taken to be a decision of the Minister which was reviewable under s500(1)(c). The trial Judge dismissed the application to the Court on the ground that the Act did not authorise the Administrative Appeals Tribunal to review a decision of the Refugee Review Tribunal. On the hearing of the appeal to the Full Court, counsel for Mr Daher, Ms D. Mortimer, and counsel for the Minister, Mr A. Cavanough QC, repeated the substance of the submissions which had been put before the trial Judge. The Bench raised the further issue as to whether the Refugee Review Tribunal had jurisdiction to consider the issues arising under art. 1F of the Convention. Subsequently, in written submissions, Ms Mortimer adopted this point and sought leave to amend the notice of appeal so as to raise the point and to seek relief directed to the decision of the Refugee Review Tribunal. Mr Cavanough, in his written submissions, supported the validity of the decision of the Refugee Review Tribunal. The task of reconciling arguably inconsistent statutory provisions is sometimes a difficult one. However, the task is made simpler if attention is given to reading the provisions in a manner which permits each of the provisions to be given an appropriate force and effect. In that way, the objects which the legislation seeks to achieve can usually be achieved consistently with the language used. In the present case, it is an object of the Act that reviews of decisions taken under art. 1F of the Convention shall be conducted by the Administrative Appeals Tribunal. That object is not merely to be inferred from the Act. The Act makes it explicit by conferring jurisdiction upon the Administrative Appeals Tribunal and by excluding review under Part 7 of the Act. The rationale is not stated but it can be understood. The Administrative Appeals Tribunal is a high ranking review tribunal, the President of which is a judge of this Court. It is a body which is well suited to dealing with the issues which arise under art. 1F. The Act has specified that, for the purposes of reviewing such a decision, the Administrative Appeals Tribunal shall be constituted by a presidential member. High quality decision making is sought. The Act has, therefore, notionally divided decisions refusing to grant a protection visa into two distinct parts, namely, those parts constituting a refusal in reliance on arts. 1F, 32 or 33(2) of the Convention and those relying on other aspects of the Convention, particularly art. 1A(2). Accordingly, in s.411(1)(c), the term "a decision to refuse to grant a protection visa" must be read as excluding such a decision insofar as it relies upon arts. 1F, 32 or 33(2) of the Convention. The Act makes this explicit by providing in s500(4) that the excluded decisions are not reviewable under Part 7 of the Act, in which s411 appears. It follows that the only decision which the Refugee Review Tribunal had jurisdiction to review was a decision which did not rely upon arts. 1F, 32 or 33(2). It was only for the purpose of reviewing that limited decision, the elements of which were within its jurisdiction, that the Refugee Review Tribunal was authorised to exercise all the powers and discretions that were conferred by the Act on the person who made the decision. As the question whether Mr Daher fell within the terms of art. 1F was not an issue within the ambit of the decision which the Refugee Review Tribunal had jurisdiction to review, the Refugee Review Tribunal had no cause to enter into that question for the purposes of the review of the decision. Put another way, if the decisions which the Refugee Review Tribunal had jurisdiction to review did not include a decision to refuse to grant a protection visa relying upon arts. 1F, 32 or 33(2), then it follows that the Tribunal could not on review adjudicate upon arts. 1F, 32 or 33(2) issues, even if (or especially if) such issues were advanced for the first time on review. Having decided that the primary decision was in error insofar as it refused to grant a protection visa in reliance upon art. 1A(2) of the Convention, the proper course for the Refugee Review Tribunal to have taken was to remit the decision for reconsideration in accordance with the direction that the applicant, Toufic Daher, must be taken to have satisfied the criterion for the visa specified in art. 1A of the Convention. That order would have enabled the primary decision-maker then to consider the other issue, namely whether Mr Daher was disqualified from protection by reason of the application of art. 1F of the Convention. If the primary decision-maker were then to decide that Mr Daher was excluded by art.1F from the protection of the Convention, an application for review could be lodged with the Administrative Appeals Tribunal. As the Refugee Review Tribunal exceeded its jurisdiction, it is proper to allow the amendments to the notice of appeal as sought. An order should be made that the decision of the Refugee Review Tribunal, insofar as it relied upon art. 1F of the Convention, was void ab initio. It necessarily follows that the Administrative Appeals Tribunal had no jurisdiction to review that decision. It is unnecessary to consider whether, had the Refugee Review Tribunal acted within its jurisdiction, the Act would have permitted an application to be made to the Administrative Appeals Tribunal from the decision of the Refugee Review Tribunal. We would grant leave to amend the notice of appeal. We would allow the appeal to the extent of declaring that the decision of the Refugee Review Tribunal was void ab initio insofar as it relied upon art. 1F of the Refugee Convention. We would set aside the trial Judge's order as to costs and would order the respondent to pay the costs of the application to the Court. We would otherwise dismiss the appeal. We would order that the respondent pay the costs of the appeal. I certify that this and the 8 preceding pages are a true copy of the reasons for judgment herein of the Court. Associate: Dated: 5 August 1997 Counsel for the appellant: Ms D.S. Mortimer Solicitor for the appellant: Erskine Rodan & Associates Counsel for the respondent: Mr A. Cavanough QC Solicitor for the respondent: Australian Government Solicitor Date of hearing: 2 June 1997 Date of judgment: 5 August 1997

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