Yulianti v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2001-02-26|Before: Gleeson CJ, Hayne JJ, Stone J

1 On 3 June 1998, the applicant, Ms Yulianti, applied to the respondent ("Minister") for a protection visa to remain in Australia. The Minister's delegate refused her application on 28 August 1998. The Refugee Review Tribunal ("Tribunal") upheld this refusal on 20 September 2000 in a decision handed down on 6 October 2000. On 25 October 2000, Ms Yulianti applied under the Migration Act 1958 (Cth) ("the Act") for review of the Tribunal's decision. 2 On 9 February 2001, the parties submitted the following consent orders for my approval:

the matter be remitted to the Tribunal differently constituted for reconsideration according to law; and
the respondent pay the applicant's costs in the sum of $526.00. 3 On 12 February 2001, my associate wrote to the solicitors for the respondent, informing them that, despite both parties having consented, I did not believe that I had jurisdiction to make the proposed orders without a ground of review under s 476 of the Act being made out. The respondent has made written submissions to the contrary and also proposed that, if I was not prepared to make the orders consented to, I should make the following orders:
the decision of the RRT dated 20 September 2000 be set aside;
the matter be remitted to the RRT differently constituted for further consideration;
the Respondent pay the reasonable costs of the Applicant. 4 Unfortunately, the revised orders do not address my concerns. The problem is not with the form of the orders but with the Court's lack of jurisdiction to make them.

Reviewable error 13 At the hearing Ms Abadee did not wish to expand on her written submissions. Instead, she submitted that if I were not disposed to accept the submissions made on the above point, the Minister would seek to have the matter remitted to the Tribunal on the basis of a reviewable error under s 476(1)(g). This section provides that an application may be made for review by the Federal Court of a judicially-reviewable decision on the ground "that there was no evidence or other material to justify the making of the decision". The section is amplified by s 476(4)(b) which provides that the ground specified in paragraph (1)(g) is not to be taken to have been made out unless (relevantly): "the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 14 Ms Abadee identified the fact that did not exist as the finding by the Tribunal that the applicant was not a national of Indonesia. In making this finding the Tribunal referred to the fact that the applicant did not speak Indonesian and had a poor knowledge of Indonesian geography and landmarks. It also relied on the fact that she was unaware of the acronym for the Indonesian national identity card or what that acronym stood for, despite independent evidence that the national identity card was an important aspect of everyday life in Indonesia. 15 It would seem, however, that there is significant evidence to contradict this finding of the Tribunal. In her application for a protection visa, the applicant stated that she was an Indonesian citizen and gave details of her Indonesian passport and attached a certified copy of this passport. The hearing before the Tribunal was held on 1 September 2000 and the Tribunal's decision, dated 20 September 2000, was handed down on 6 October 2000. By letter dated 29 September 2000 and received by the Tribunal on 5 October 2000, the applicant forwarded to the Tribunal a certified copy of her Indonesian identity card. Ms Abadee stated that the Minister accepted that in the light of this evidence the finding that the applicant is not a citizen of Indonesia cannot stand and that therefore the Tribunal had based its finding on a fact that did not exist. Although the applicant's letter of 29 September was received after the date of the Tribunal's decision (but before the decision was handed down) I am satisfied that it is appropriate for me to take account of this additional evidence; see Indatissa v Minister for Immigration & Multicultural Affairs [2000] FCA 1119 at [33]. In light of the evidence before the Tribunal and the cultural background of the applicant, the evidence referred to by the Tribunal is insufficient to justify its finding that the applicant was not a national of Indonesia. 16 Ms Abadee quite properly drew my attention to the statement of the Tribunal that even if it had found that the applicant was an Indonesian national it did not accept that she had a well founded fear of persecution. It is not necessary here to expand on the reasons given for this view. Although the Tribunal purported to give an alternative reason for its decision, having reviewed the whole of the Tribunal's reasons for decision I am satisfied that the finding that the applicant was not an Indonesian national was critical to the making of the decision as that concept was explained by Black CJ in Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 220-221. In this regard, see also the discussion of the full Federal Court in Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023 at [19] et seq. 17 For the reasons set out above and in view of the concessions made by the Minister, I accept that a ground of review under s 476(1)(g) has been made out. I propose to make orders that the decision of the Tribunal made on 20 September 2000 be set aside. The matter is remitted to a differently constituted Tribunal to be determined according to law. As the respondent has conceded, in these circumstances it is appropriate that the Minister pay the applicant's reasonable costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 26 February 2001 Counsel for the Applicant: The applicant appeared in person, assisted by an interpreter

Migration Act 1958(Cth)s 476(1)(g), s

At a glance

Court

Decision date

Before

Source

Judgment (4 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (10)

Cited By (15)