W389/01A v Minister for Immigration & Multicultural Affairs[2002] FCFCA 432

RD NICHOLSON J: 66 In this appeal I have had the opportunity of considering in draft the reasons of Lee J. I rely on those reasons for the comprehensive statement of the facts and circumstances relevant to the appeal which they provide. 67 The primary judge said in his reasons that the Tribunal member had plainly rested her conclusion on the fact that the document tendered by the appellant was called a "warrant" but DFAT information was that arrest warrants are not given to the person charged or a member of that person's family. He was critical of this reasoning but said it was another matter whether that established a ground of review available to the appellant under s 476 of the Migration Act 1958 (Cth) ("the Act"). Because of the provisions of s 476(2)(b) of the Act he rejected the application of a ground of unreasonableness. He also rejected the application of s 476(1)(d), improper exercise of the Tribunal's power, because of the exclusions from it, and s 476(1)(e) because the improper characterisation of the foreign document was not an error of law. 68 Turning to the question of jurisdictional error he said: "However, such conduct may be a jurisdictional error covered by s 476(1)(b): see Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 at para 82. Accordingly, if the Tribunal's neglect to inquire about the warrant amounted to taking into account an irrelevant consideration or a failure to take account of a relevant consideration, the applicant might have an available ground of review. The difficulty, as it seems to me, is that the Tribunal's failure to inquire was neither of these things. The document was clearly relevant to the applicant's case; that is why the applicant provided it to the Tribunal. The Tribunal gave it careful consideration, and took it into account in reaching its final conclusion, as the applicant had wished. The applicant's difficulty is that the Tribunal treated the document as detrimental to, rather than supportive of, his case. If that was an error, it was because of a factual error by the Tribunal, in relation to categorisation of the document, rather than an error of methodology or reasoning." 69 The starting point on the appeal must be the statutory language in s 476 of the Act. In view of the provisions in s 476(2)(b) excluding from all grounds under subs (1) issues of unreasonableness, I am not inclined to turn to authorities in other statutory environments where reasonableness may have been properly in issue. I prefer to turn to the explanation of the provisions of s 476 given recently by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 particularly at [82] where McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed, relied on what was said in Craig v South Australia (1995) 184 CLR 163 at 179. It is necessary to turn to examine the facts at issue on the present appeal to ascertain whether pars (b), (c) and (e) of s 476(1) as there explained have been engaged in this case. In doing so it must be borne in mind that in Yusuf at [82] their Honours said that "jurisdictional error" as explained in the passage cited by them from Craig is not exhaustive. 70 As the reasons of Lee J make apparent, the Tribunal dealt in the following way with the three photocopies of documents received by the appellant by facsimile transmission from Iran and forwarded to the Tribunal with the advisor's letter dated 8 December 2000. The first of the documents, the "certificate" from the appellant's employer, was accepted by the Tribunal as supporting the appellant's account as to the nature of employment in Iran. The second document, the "warrant" was, after receipt of the appellant's submissions, found by the Tribunal to not be legitimate. In reaching that view the Tribunal did not consider it necessary to ascertain whether the offer by DFAT to have the authenticity of the document tested should be accepted. The third document was the letter from the appellant's brother in Iran which the Tribunal found to be self-serving in the circumstances. 71 The issues which can give rise to jurisdictional error were referred to in Yusuf at [82]. The first is the identification of a wrong issue. The treatment by the Tribunal of the "warrant" and the letter does not in my view fall into that description. The second is the asking of a wrong question. Again, the Tribunal's treatment of these matters does not fall into that description. The third is ignoring relevant material. That is not the case in respect of either of those documents. The word "ignore" means "to refrain from noticing or recognising": The Macquarie Dictionary 2nd ed. 1992 at p 877. The Tribunal did not ignore the relevant information; rather it gave it cognisance but did not decide in accord with it. This was not a case of disregard of material information in the sense of ignoring that information, only in not be persuaded by it. The fourth is placing reliance on irrelevant material. Again, that would appear to have no application. The material represented by those documents was clearly relevant and treated as such. 72 The next category identified in Craig and accepted in the reasoning previously referred to in Yusuf is the making of an erroneous finding and the reaching of a mistaken conclusion "at least in some circumstances". However, in par [84] their Honours emphasised that "factual error by the tribunal will not found review". That was a reference to the terms of s 476(1)(e). It is not explained in the reasoning of their Honours how the making of an erroneous finding or reaching a mistaken conclusion "at least in some circumstances" as referred to in Craig is to be reconciled with the proposition that jurisdictional error will not arise from factual error. Indeed, in pars [82], [83] and [84] the reasoning of their Honours following the citation from Craig focuses on the first four categories of error of law there referred to and not on erroneous findings or mistaken conclusions. 73 Turning to s 476(1)(e), this is not a case where it can be said the way in which the Tribunal proceeded involved an incorrect interpretation of the applicable law. Whether the Tribunal incorrectly applied the law to the facts as found depends on the manner in which the Tribunal dealt with the issue of the "warrant". That raises the issues of whether the Tribunal should have made further inquiry as to the authenticity of the document or should have considered whether it ought to have done so. If it is the case that the law in the circumstances gives rise to a duty to consider the exercise of the power to investigate, it would have been wrong for the Tribunal to have applied the law without regard to that duty. That is, if it is the case that a duty to consider whether to exercise the power of investigation can arise in circumstances being exceptional or rare I think the relevant ground of review which would be activated would be s 476(1)(e) so far as it refers to an error of law being an incorrect application of the law to the facts. 74 The Tribunal has a power of investigation pursuant to s 427(1)(d) of the Act for the purposes of the review of a decision to require the Secretary to arrange for the making of any investigation that the Tribunal considers necessary and to give to the Tribunal a report. It is well established that the power does not impose any duty on the Tribunal to make further inquiries: Minister for Immigration & Ethnic Affairs v Singh (1997) 74 FCR 553 at 561; Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274; Re Minister for Immigration & Multicultural Affairs; Ex parte Cassim (2000) 175 ALR 209 at [13]. 75 However, it is unresolved by authority whether circumstances can give rise to an obligation on the Tribunal to consider whether it ought to exercise the power of investigation: cf Majeed v Minister for Immigration & Multicultural Affairs [2000] FCA 470 per Ryan J; Yusuf at first instance per Finn J; and Gomez v Minister for Immigration & Multicultural Affairs [2001] FCA 935 per Allsop J. The question therefore arises whether the circumstances in relation to these documents and particularly the "warrant" are such as should have given rise to a duty on the Tribunal to consider whether to exercise its power. 76 The circumstances in which a tribunal may have an obligation in the circumstances to consider whether it is necessary to exercise its power of further investigation has been the subject of dicta in a number of cases. For present purposes I am generally content to rely upon the recent summary of relevant authorities appearing in the reasons of Allsop J in Azzi v Minister for Immigration & Multicultural Affairs [2002] FCA 24 at pars [106] - 114]. His Honour said at par [108]: "The applicant's submission was that the authorities are not settled on the question of whether a failure to consider whether to obtain additional evidence gives rise to reviewable error (although it was accepted that the proposition that there is a reviewable obligation actually to exercise the power has been rejected on numerous occasions). Reference was made by Mr Leeming to the decisions, said to be in favour of the proposition, in Sellamuthu, supra; Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 289 and Al Shamry v Minister for Immigration and Multicultural Affairs [2000] FCA 1679 at [38]-[42]. See also Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179, 192-93. However, as Mr Leeming properly points out, the proposition was specifically rejected in Yusuf v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 470. In that case Finn J approved of what was said by North J in Kulwant Singh v Minister for Immigration and Ethnic Affairs (unreported, 21 November 1996), in relation to whether s 427(1)(d) implicitly required the Tribunal to consider whether to arrange a medical examination so as to obtain further information. North J said: The section is permissive. It gives the Tribunal a power. The Act does not require that the power be exercised, and it follows that it does not require the Tribunal to consider whether it should be exercised. Thus, although a failure to consider whether to exercise a power may be unwise in certain circumstances, it is not a failure to observe a procedure required to be observed by the Act. Finn J acknowledged that a duty to consider whether to exercise such a power may arise at common law. At [20] he said: This is not to say that the Minister or Minister's delegate or for that matter the Tribunal as the donee of the power is not, as a public official and as an holder of an office of public trust and confidence, obliged to consider whether or not a power so held ought be exercised. Finn J's reasoning in Yusuf was not revisited by the Full Court on the appeal in that matter. It was cited with approval in Majeed v Minister for Immigration and Multicultural Affairs [2000] FCA 470 (Ryan J). See too Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at [42] to [44]. No reference was made in Al Shamry to Yusuf (1999)." His Honour continued at par [112]: "It may be, notwithstanding prevailing authority, that a duty to enquire may exist or be seen to arise in certain circumstances, but these are understood as being exceptional or rare: Prasad, supra; Minister for Immigration & Multicultural Affairs v Amani [1999] FCA 1040; W41/01A, supra; Raheem, supra. Before the High Court's decision in Eshetu it had been said by the Full Court of this Court in Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 in relation to s 420 that any such duty that might exist would arise only in rare cases; cf McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim (2000) 175 ALR 209 at [13]." Allsop J then referred to his view expressed in Gomez that there could be circumstances thrown up by a particular matter in its context where it could be said those circumstances were such as to oblige the decision-maker to consider whether it ought to exercise the power of further investigation. I would add to the authorities referred to by Allsop J the reasoning of Weinberg J in Awan v Minister for Immigration & Multicultural Affairs [2001] FCA 1036 and Carr J at first instance in [WAEH] v Minister for Immigration & Multicultural Affairs [2002] FCA 6. 77 Are the present circumstances exceptional or rare? On one view, consideration by the Tribunal of its duty to inquire may have led to an appreciation by the Tribunal that verification of the authenticity of the "warrant" could have profoundly affected the Tribunal's view of the appellant's credibility. At the core of the adverse credibility findings lay the views of the Tribunal formed in relation to the warrant. Nevertheless, this may not be "exceptional or rare". In that respect I am influenced by the reasoning of Black CJ, von Doussa, Sundberg and Mansfield JJ in Singh at 561 where they said: "In our view the respondent has fallen short of showing that the Tribunal's failure to make inquiries through official channels about the authenticity of the warrants involved a denial of substantial justice. The Tribunal gave reasons for concluding that the letters and the warrants that accompanied them were not authentic, and those were conclusions to which it was entitled to come. The Tribunal was given no information about the provenance of the warrants other than that they were forwarded with letters which it was entitled to conclude were not authentic. Moreover, although the failure to ask the Tribunal to exercise its power to make inquiries could not be decisive, there is nothing to indicate that it was ever suggested to the Tribunal by the respondent or by the migration agent who was assisting him that it should take any steps of its own to authenticate the documents in question. Although we have concluded that there may be circumstances in which the Tribunal's obligation to act according to substantial justice requires it to make inquiries, we are respectfully unable to agree with the primary judge's general proposition that where an applicant produces a document which purports to be an official document issued in a foreign country, its disputed authenticity is a matter appropriate for verification by the Tribunal through official channels, if by that her Honour intended to convey (as the respondent suggested) that the Tribunal was under a duty to verify in such cases. In a particular case the Tribunal may indeed be obliged to verify a document in this fashion, but there is no general rule to that effect." 78 It is not necessary for me to form a final view on the factual characterisation of the circumstances as exceptional or rare. That is because I hold the view that, on the present state of the authorities, there is no duty on the Tribunal to consider whether to exercise its power to investigate. I consider the reasoning in Kulwant Singh v Minister for Immigration & Ethic Affairs (North J, 21 November 1995, unreported) is correct. 79 In my view what the Tribunal did is correctly to be seen as dealing in fact not in law so that the only question is whether there are circumstances such as to make the finding in law erroneous or mistaken within the dicta in Craig cited at Yusuf at [82]. In the absence of further elucidation by the High Court of that concept, I am of the view that application of it is not open given the way in which the Court addressed the issue of factual findings in par [84] in Yusuf. 80 If that means there is a lacuna in the scope of review permitted to the Court either in respect of a duty to consider investigation or in relation to illogicalities in reasoning concerning facts, I do not consider that can be rectified by this Court.

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