WAEH of 2002 v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT THE COURT: 1 The appellant appeals from the decision of Carr J given on 11 January 2002 whereby he dismissed the appellant's application for judicial review of an adverse decision of the Refugee Review Tribunal ("the Tribunal") made on 31 May 2001. The Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the appellant. The application for that visa had been lodged on 28 January 2001 and so fell for determination pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act") as they stood at that time and prior to amendment with effect from 2 October 2001. Appellant's claims 2 The appellant claimed fear of persecution in Yemen for reasons of his political opinion. The appellant's case identified several factors as the source of this claimed fear of persecution. The first was his father's history. The second was the appellant's mid to high level membership of an opposition party called "League of the Children of Yemen" ("the League"). The third was an argument with a security official occurring in 1995 as a result of which he was arrested and beaten and detained for two months. The fourth was visits to a League member in Egypt as a result of which he had been harassed upon return to Yemen. The fifth was his having fled Yemen on a false passport in October 2000. Tribunal reasoning 3 In its reasons the Tribunal accepted that the appellant was a Yemeni national. It concluded he did not face a real chance of persecution owing to his father's history or connections, either real or perceived. It accepted that the appellant was detained for two months after the confrontation with the officer in 1995 but was satisfied the incident had nothing to do with politics. On the basis that the appellant was a member of the League, the Tribunal was not satisfied such membership of it or its affiliates attracted any kind of crackdown or other mistreatment from the Yemeni authorities. In relation to the appellant's visits to Egypt, it found he went there to visit his mother and for no other reason. It did not accept he used a false passport to depart Yemen the second time and found he had departed legally on a genuine passport. Accordingly, it was not satisfied the appellant faced a real chance of Convention-related persecution in Yemen. Reasoning of primary judge 4 Before the primary judge three grounds of review were relied upon. The first was based upon s 476(1)(a) of the Act and contended the Tribunal had ignored material as to whether the appellant had a well-founded fear of persecution by reason of being a member of a particular social group or having a political opinion or being imputed with a political opinion. The argument as put was that the relevant evidence (being that from Mr Ahmed Ibrahim), although read by the Tribunal, was evidence in relation to which the Tribunal had failed to give consideration to matters particularised so that there was jurisdictional error within the principles explained in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323. In association with this it was submitted there was no evidence which competed with Mr Ibrahim's evidence. The primary judge found to the contrary, referring to the competing evidence. He found the Tribunal gave consideration to Mr Ibrahim's evidence and in fact relied upon it to some extent. There was, therefore, no jurisdictional error or any other reviewable error. 5 The second ground considered by the primary judge was that if the Tribunal had not ignored but had instead rejected Mr Ibrahim's evidence it ought not to have done so without having considered whether to exercise its powers to obtain further information concerning his evidence. This was said to give rise to error pursuant to s 476(1)(a) and also (b) and (c) of the Act. The error was said to be a failure by the Tribunal to exercise its powers under s 424 or 427 of the Act. His Honour preferred authorities to the effect that although at common law there was a duty to consider whether to exercise such a discretionary power, no such duty was prescribed by the Act or by the Regulations for the purposes of s 476(1)(a): Kulwant Singh v Minister for Immigration & Ethnic Affairs (North J, 21 November 1996, unreported); Awan v Minister for Immigration & Multicultural Affairs [2001] FCA 1036; Marjeed v Minister for Immigration & Multicultural Affairs [2000] FCA 470 at [21] - [22] and Yusuf. It was unnecessary for him to definitively choose between that authority and a decision in Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679. This was because he accepted a submission for the respondent that the Tribunal had made a clear finding that even if the appellant was a leader in the League, he did not have a well-founded fear of persecution. 6 The third ground of appeal asserted that procedures set out in s 424A of the Act were not followed by the Tribunal, again placing reliance upon s 476(1)(a) of the Act. In relation to this submission his Honour accepted a submission for the respondent that the information relied upon to support this ground was not the reason or part of the reasons for the Tribunal affirming the decision under review or alternatively it fell within an exception to the cited sections. 7 Accordingly, he dismissed the application for review. Grounds of appeal 8 In the appellant's notice of appeal he repeated the ground which was before the primary judge concerning the evidence of Mr Ahmed Ibrahim, claiming that the way it was dealt with created reviewable error under s 476(1)(a) or (b) and (c). At the hearing the appellant obtained the leave of the Court to add a second ground which, in effect, restored for hearing on the appeal the second of the grounds which had been before the primary judge. As recast for the appeal, that ground contends that the primary judge erred in holding that the Tribunal was not obliged to consider whether to exercise its power pursuant to s 424 of the Act in relation to the evidence of Mr Ibrahim and ought to have held that the Tribunal should have considered whether to exercise such powers, its failure to do so constituting a reviewable error pursuant to s 476(1) of the Act. In the course of argument, however, this ground was further refined so that it was put in terms of a failure to take a relevant consideration into account in the exercise of its power. The relevant consideration was said to be whether the Tribunal should have exercised its power. Failure to properly address evidence of Mr Ibrahim 9 The first ground of appeal as expressed in the notice of appeal contends that the error of the Tribunal arose from the fact that it "ignored" material, namely the evidence of Mr Ibrahim. However, on the appeal, as previously on the argument before the primary judge, counsel for the appellant acknowledged that the Tribunal must have read the letter from Mr Ibrahim. The argument therefore was not addressed on the basis the Tribunal had ignored the evidence but rather that it had not "grappled" with the significance of that evidence. 10 This was put on two interrelated bases. The first was comparison of references in the Tribunal's reasons with the evidence of Mr Ibrahim showed the extent to which Mr Ibrahim's evidence had not been addressed. That was tabulated on behalf of the appellant as follows: " No. Tribunal references Ibrahim's evidence