A publication of the Asylum Seeker Resource Centreã
Edition 1
Australia’s largest asylum seeker aid, health and advocacy organization
September 2003
By: Nola Karapanagiotidis
Barrister/Registered Migration Agent
Disclaimer:
Immigration law constantly changes and you should check the accuracy of this information by always consulting the Migration Act and Migration Regulations before advising clients. Please note you must be a registered migration agent to provide immigration advice. The Asylum Seeker Resource Centre does not accept any liability to any person for the information or advice (or the use of such information or advice) which is provided in this publication.
· This paper will canvass the following:-
i. Basic concepts of Refugee law, in particular the Refugee Convention and the Migration Act 1958; and
· It should be noted at the outset that if successful before the Federal Court, the case is remitted back to the Tribunal for consideration according to law. The Federal Court itself does not have the power to grant a protection visa upon a review of the Tribunal’s decision. Often, it will therefore be necessary to assess (i) merits of a Federal Court application; and (ii) merits before the Tribunal.
· Many cases before the Federal Court are being transferred (on the initiative of the Court) to the Federal Magistrates’ Court. The Federal Magistrates’ Court is invested with the same jurisdiction and powers.
§ This paper has used and borrowed from a number of references and useful sources, in particular publication Judicial Review of Refugee and Migration Decisions by John Gibson and papers presented by Counsel D.Mortimer and D.Star.
· The Migration Act regulates the rights of all "non-citizens" to enter and remain in Australia.
· Protection visa is a class visa created by the Migration Act.
· A visa a grant of "permission" to enter and remain in Australia: s29. The Migration Act and the Migration Regulations 1994 create a huge number of visa classes and sub classes and prescribe criteria which must be met in order to be granted a particular kind of visa.
· There are two kinds of visas – permanent and termporary: s 30.
· Section 36 creates the class called "protection visas". The core criteria is set out in s 36(2)(a):-
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
· The spouse of a person who meets the criterion can also be granted such a visa: s 36(2)(b).
· There are two classes of protection visa – one temporary and one permanent (Schedule 2 of the Migration Regulations 1994, 786 TPV, 850 PPV). The TPV was introduced in 1999. Most of our clients are on TPV’s.
· The application process for visas is regulated by the Migration Act:- the application must be "valid" (s46); the Minister is only obliged to consider "valid" applications; a second application for a visa is precluded in all but exceptional circumstances (s48 & 48B).
· After visa applicants have exhausted all of their remedies, then they can apply to the Minister to exercise his discretion pursuant to s 417 of the Act. This is a discretion that must be exercised personally. Even if there has been jurisdictional error, mandamus will not go as a remedy: see Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1.
· Article 1A is the part of the Convention which you will be dealing in judicial review applications, subject to some modifications which have been made recently in the Migration Act 1958 ("the Act"). The relevant part of Article 1A reads:-
For the purposes of the present Convention, the term "refugee" shall apply to any person who:
… owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countires of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on a well founded fear, he has not availed himself of the protection of one of the countries of which he is a national.
· In Australian law, the Convention definition of refugee is a criterion which must be met in order to be granted a protection visa.
· The key ingredients to the above definition are as follows:-
o Owing to a well founded fear
· The test is about what might happen to a person should she or he be forced to return to their country of nationality. The question the Tribunal must ask is one about the future.
· What has happened to the person in the past may be a significant contributing factor in assessing how that person may be treated in the future – the rationale for this is set out by the High Court in Minister for Immigration & Multicultural Affairs v Guo (1997) 191 CLR 559.
· Note that an assessment of the past may not afford a reliable assessment of a risk of future persecution where it is held that there has been durable and significant change in the country of nationality (this is a trend in thought re such countries as Iraq and Afghanistan):-
Note also the following caution in a recent decision of the Full Federal Court:-
It will be noted that the past is to be examined, not for its own sake but as a guide to the future. Where it is clear that, in the country of nationality, there has been a dramatic change of conditions, it may be rational to conclude that the past cannot afford reliable guidance about the future and it is preferable to rely upon such information as is available about current conditions.
· Caste in broad terms, the general assessment of a pv involves the following considerations:-
i. What harm does the applicant fear on her/his return to their country of nationality?
· Well founded fear is comprised of two components, one subjective and one objective.
· Most cases involved the Tribunal considering and assessing whether there is an objective basis for the applicant’s fear.
· Often, these findings centre on the "country information" available about the situation in the applicant’s country of nationality.
· The test posed by Art 1 has been paraphrased into the question whether there is a "real chance" of persecution: see Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379.
· "Real chance" means a substantial, as opposed to a remote or far-fetched, chance of persecution.
· Whether a fear of persecution is well founded requires consideration of whether there is a substantial basis for the fear. This was illustrated by the statement of principle of the High Court in the joint judgment of Brennan CJ and Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572:
Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is `well-founded' when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.
· The Courts have warned against substituting the "real chance" test for the test posed by Art 1. While the majority of the High Court Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 observed that in most cases the application of the real chance test would lead to the same result as an application of the phrase, `well-founded', it also commented at 572 that,
it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term ...A fear is well-founded when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In this and other cases, the Tribunal and the Federal Court have used the term `real chance' not as epexegetic of `well-founded', but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate.
· In many cases determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will occur. In most cases, determining what is likely to occur in the future, requires a consideration of the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future (subject to the qualification noted above re changed circumstances).
· A person may have a well-founded fear of persecution for a Convention reason even though that person may not have experienced persecution in the past.: McHugh J in Ibrahim v MIMA (2000) 204 CLR 1 ("Ibrahim"); 175 ALR 585; 74 ALJR 1556 at [83], Perampalam v MIMA (1999) 55 ALD 431 at [14].
The Convention does not require that the individual who claims to be a refugee should have been the victim of persecution. The Convention test is simply whether the individual concerned has a "well-founded" fear of persecution (Ibrahim, per Gaudron at [16]).
· In considering whether a fear is well founded, there will often be an assessment as to whether the applicant can relocate safely to another part of the country. It may be that a person’s fear of persecution in one part of the country does not preclude him or her from relocating to another. If this is so, then the person may not have a "well founded fear of persecution" in her or his country of nationality, although there are constraints imposed in relation to relocation. The leading authority is Rhawanda v Minister for Immigraiton and Ethnic Affairs (1994) 54 FCR 437.
Chan v Minister for Immigration and Multicultural Affairs (1989) 169 CLR 379.
Minister for Immigration & Multicultural Affairs v Guo (1997) 191 CLR 559
Rhandawa v Minister for Immigration and Ethnic Affairs(1994) 54 FCR 437
· In dealing with the concept of "persecution" reference can be made to the observations of JC Hathaway, The Law of Refugee Status at 104-105 where "persecution" is defined as:
...the sustained or systematic violation of basic human rights demonstrative of a failure of state protection".
· Reference should also be made to the definition provided in section 91R of the Migration Act 1958:-
Persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
· "Persecution" has been considered by various judges and there is a divergence in views.
· However, there is some consistency in approach, with reference to "serious harm" and of the persecution having some persistent quality. It is impossible to frame an exhaustive definition of persecution.
· In the case of Ibrahim, McHugh J at [65] stated that "ordinarily, however, given the rationale of the Convention, persecution for [the purpose of the Convention] is:-
o unjustifiable and discriminatory conduct directed at an individual or group for a Convention reason
o which constitutes an interference with the basic human rights or dignity of that person or the persons in the group
o which the country of nationality authorises or does not stop, and
o which is so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned.
· Notwithstanding, it is also clear that isolated pieces of conduct in the past can constitute persecution and can still ground a well-founded fear of persecution in the future. A single act of persecution may suffice: see Chan; Ibrahim.
· Whether conduct amounts to persecution involves a consideration of the level and degree of mistreatment suffered by an application: Arumugam v Minister for Immigration and Multicultural Affairs [1999] FCA 251.
· Conduct will not constitute persecution if it is appropriate and adapted to achieving some legitimate object of the country of the refugee: McHugh J in Applicant A v Minister (1997) 190 CLR 225 at 258 (eg such as an object whose pursuit is required to promote the general welfare of the State and its citizens).
Applicant A v MIMIA (1997) 190 CLR 225
Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1.
· This refers to the nexus requirement in the Convention between the concept of persecution and the five Convention grounds.
· For example, to establish that the conduct in question is "for reasons of" race, religion, nationality etc the applicant may seek to establish that the conduct complained of is systematic, in the sense that there is a patter of discriminatory conduct towards, for example, persons who belong to a particular religious group.
· The persecution need not be solely due to one of the five Convention grounds. In appropriate circumstances it is necessary in order to correctly apply the refugee definition to at least address the question whether the persecution is due to more than one reason, and if so, does one of the reasons have a sufficient Convention nexus.
· Motivation is recognised as part of the nexus.
· However, it is possible for persecution to be for a Convention reason even if the actual perpetrators are not actuated by that reason but the persecution is condoned. In Woen v Minister for Immigration and Multicultural Affairs [2000] FCA 1912, Emmett J observed, at [24];
Persecutory conduct can be Convention based, even though the persecutor as an individual has no discriminatory motive, so long as the state withholds effective protection on a Convention ground. Persecution occurs where a non-state agent persecutes for a non-Convention reason and where, for a Convention reason, state protection is not available..... (see also the case of Khawar).
· The case of Ibrahim involved a Somali national who entered Australia and applied for a pv on the ground of a well-founded fear of being persecuted by reason of membership of a particular Somali sub-clan the subject of attack by other class or sub-group in the course of a civil war. The majority of the High Court (Gleeson CJ, Gummow, Hayne and Callinan JJ) held that the Tribunal had not erred in concluding that the basis of the applicant’s fear of persecution did not satisfy the Convention definition. The following findings of the Court should be noted:-
o Notions of "civil war", "differential operation" and "object" or "motivation" of civil war are distractions from applying the text of the Convention definition of "refugee" and should not be adopted.
o "The definition does not encompass those fleeing generalised violence or internal turmoil and mass movements of persons fleeing civil war and bad economic conditions are outside the Convention" per Gummow J at [141].
Applicant A v MIMIA (1997) 190 CLR 225
Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1
· The term "race" is likely to be given the same kind of broad meaning as it is given in discrimination law. It is a term that also includes ethnic groups.
· The notion of persecution by way of "nationality" is more difficult and infrequently relied upon.
See Hathaway at p 141 0 143.
· This Convention ground is often relied upon because of the situation faced in many countries by religious minorities – eg Sabian-Mandians and Bahai’s in Iran, Shia Muslims in Afghanistan, Coptic Christians in Egypt.
· Convention ground usually not the source of legal controversy.
· An issue that does arise in some of the cases is whether a person’s fear is well founded because s/he "should" be able to conceal his/her religious affiliations by not practising or worshiping.
· Courts have held that the mere fact of the necessity to conceal to avoid actual or threatened infliction of punishment would amount to support for the proposition that the applicant had a well-founded fear for reasons of religion: Woudneh v MILGEA, unreported , Gray J. G86 of 1988, 16 September 1988.
· The correct question which the RRT should have addressed was whether the applicant could expect to face persecution for the practice of his Christian religious beliefs in the way which he wishes to practice them if he returned to the PRC in the future? Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599 per Merkel J.
· This Convention ground causes great difficulty.
· The history of the "social group" is traced by Hathaway at 157-169.
· The leading cases in Australia contain various formulations of the elements which make up a social group: see generally Applicant A v MIMEA (1997) 190 CLR 225, Chen Shi Hai v MIMEA (2000) 201 CLR 293; MIMIA v Khawar (2002) 187 ALR 574. These include formulations requiring that the group:-
i. Is distinct and recognisable in any society: see Khawar at [35] per Gleeson CJ.
ii. Share something which unites them and sets them apart from society at large: Applicant A per Dawson J at 241.6.
iii. Is identifiable as a social unit, and has characteristics and attributes which unite them: Applicant A at 264.8 per McHugh J, at 285.4 per Gummow J.
iv. The group need not possess characteristics which are immutable: Applicant A per Brennan CJ at 236.6, per Kirby J at 307.8.
v. It is sufficient if the public are aware of the characteristics or attributes that, for the purposes of the Convention, unite and identify the group: Applicant A at 265.3 per McHugh J.
vi. The size of the group (that is, that it might be numerically very large) is not material: Khawar at [33] per Gleeson CJ, [82] per McHugh and Gummow JJ, at [127] per Kirby J.
vii. The drafting history supports a wide reading of the term: Applicant A per McHugh J at 265.5.
viii. Ultimately the identification of what is and what is not a social group should proceed on a case by case basis, not unduly confined by requiring particular verbal formulations to be met: Applicant A per Kirby J at 307-308.
Applicant A v MIMIA (1997) 190 CLR 225
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293.
Minister for Immigration and Multicultural Affairs v Khawar[2002] HCA 14
Re Minister for Immigration and Multicultural Affairs & Ors; Ex parte Dranichnikov.
· An applicant may hold a particular political opinion or the holding of such an opinion may be imputed to him/her by his/her persecutors. Either situation can be relied upon under this Convention ground.
· The clearest exposition of the law relating to political opinion is contained in Voitenko v MIMA (1998) 55 ALD 629 [1999] FCA 428 to which reference is made in C & S v Minister [1999] FCA 1430; 94 FCR 366 where the authorities are canvassed: Saliba v Minister (1998) 159 ALR 247, Ranwalage v Minister (1998) 159 ALR 349, Minister v Y (unreported, Davies J, 15 May 1998).
· It appears to be an established principle that actions perceived to be a challenge to government authority can appropriately be considered to be expression of political opinion:- see Rajanayake v MIMA [2002] FCA 143
· In Minister v Y Davies J held that it was open to the Tribunal to hold that Y's fear of persecution was by reason of his political opinion. At 4-5 he said:
In the context of Refugees' Convention, an opinion could be thought to be a political opinion if it were such as to indicate that its holder, the claimant for refugee status, held views which were contrary to the interests of the State, including the authorities of the State. A person may be regarded as an enemy of the State by virtue of holding and propounding views which are contrary to the views of the State or its Government, or which are antithetic to the Government and the instruments which enforce the power of the State, such as the Armed Forces, Security Forces and Police Forces or which express opposition to matters such as the structure of the State or the territory occupied by it and like matters.
· Knowledge of a fact can be just as much "political opinion" as views on political, economic or philosophical matters e.g knowledge of an allegation of complicity in politically motivated assassinations (Ranwalage v Minister (1998) 159 ALR 349; (1999) 90 FCR 173) or that police had been involved in criminal activity ( implicit in the reasoning in Y v Minister).
· Cases that do not come within the definition are those involving extortion by criminal elements where there is no nexus to a Convention ground constituted by e.g. the actions of the victim in opposing criminal activities linked to the State. These cases have also been argued on the basis of particular social group.
· The Convention can apply to a person who is seen as a threat by a group unrelated to the government if the threat arises by reason of the person’s political viewpoint and he is at risk of harm at the hands of that group. (Devarajan v Minister [1999] FCA 796 (and assuming lack of State protection in the sense of unwillingness or inability to protect). In that case error of law.
· The distinction between engagement in polititical activity and imputation of political opinion was emphasised in Tanji v MIMA [2001] FCA 1110:
The difference between being imputed with engagement in "political activity" and holding a particular "political opinion" is a real distinction. A person may have no history of political activity or not be imputed with "political activity", but nevertheless be persecuted because of a perception that such person holds a particular "political opinion". In the present case, the accepted evidence is that when he was attacked and detained his attackers stated that he was "like his father". The only rational explanation of the use of this language is that he was imputed in their perception with holding a political opinion similar to or identical with that of his father. The best guide as to the reasons which actuated the attack must be the words used by the attackers at the time. There is no contest that words linking him with his father were uttered at the time.
Minister for Immigration & Multicultural Affairs v Guo
· This is often the starting point for an assessment.
· An applicant’s nationality is important because if determines 2 key things:-
i. The country against which a person’s claims to fear persecution are assessed; and
ii. The primary country against which the ability to offer state protection is assessed (some applicants may be entitled to the protection of ore than one country if they have, for example, dual nationality).
· Leung v MIMA [2001] FCA 1691 Mansfield J. said:
….As his Honour then said, the identification of the relevant country serves the purpose of identifying whether a person is without national protection, and secondly the purpose of providing a reference point for the assessment of the degree of risk of persecution.
· Nationality becomes an issue in the Tribunal usually because an applicant is disbelieved about his/her claim to a particular nationality. Such decisions are difficult to review.
· Note that where a person claims to be stateless, the Courts have held that a stateless person being outside their country of former habitual residence must have a well founded fear of being persecuted for a Convention ground. Being outside his country of former habitual residence and being unable to return is not sufficient to bring them within the Convention: see MIMA v Savvin (2000) 171 ALR 483, 61 ALD 107, 98 FCR 168 [2000] FCA 478.
· The test is as follows:-
i. the person is without protection of his/her country of nationality; and
· An absence of State protection is the key concept in refugee law.
· The protection offered by the Convention is offered because the protection in the person’s country of nationality has failed, either because the State if the entity responsible for the persecution or because the state is unwilling or unable to protect the person from the persecution.
Khawar v Minister for Immigration and Multicultural Affairs 187 ALR 574
· Visas are granted or refused under s 65 of the Act.
· If the Minister is satisfied of the criteria, there is an obligation to grant a visa: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.
· It is the decision of a delegate under s 65 to refuse a protection visa which the Tribunal reviews: see s 411(1)(c).
· There are some obligations on the Department (through the Secretary) to provide the RRT with information. It was this section which led to some Tribunal decisions being set aside by the High Court because incomplete information was provided by the Department: see Muin v Refugee Review Tribunal [2002] HCA 30. Muin’s case had a particular factual context and has not turned out to be the watershed some thought it might be: see for example comments in VAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 350 at [23] – [25].
· The Tribunal’s procedures are set out in Part 7 Divisions 3-5, 7-7A.
· A failure by the Tribunal to follow some of these procedures (eg s424A) frequently give rise to grounds of review in the Federal Court.
· Review of RRT decisions is dealt with in Part 8.
· Note s 486B in relation to consolidated and representative proceedings.
· Note s486C in relation to standing.
· The Tribunal sits as a merits review tribunal to consider decisions of delegates of the Minister where an applicant was refused a "protection visa".
· Your task is to identify legal error of a particular kind in the Tribunal decision.
· It is important to read the decision of the Tribunal several times.
· Be creative in your thinking – is there something that does not make sense? Is there no probative material, or indeed any material, to support a particular finding? Is there something that has occurred procedurally that is occurring (eg a refusal to hear evidence from a witness).
· At the same time, Courts have warned not to be "over-zealous" in assessing the Tribunal’s decision. However, one should bear in mind the possible grave consequences and the serious subject matter.
· You will need to look at the applicant’s file in order to undertake a proper and comprehensive assessment. The documents that you should look at (though you will not always have all of this material) include the following:-
o Unauthorized arrivals interview
· It is useful to break down the Tribunal’s decision and separate it’s reasoning. Consider the following structure:-
o The claims advanced by the applicant (ie their evidence)
In other words, (i) what did the applicant claim; (ii) what aspects of the claim did the Tribunal accept; and (iii) what did the Tribunal not accept and why?
· The points below may provide some practical assistance. It is most useful to access some recent decisions, read them in their entirety to get a feel for the general approach and reasoning of the Courts.
· Check what the date of the application is.
· If it is on or after 2 October 2001, then the privative clause regime in the Migration Act 1958 reprint 8 applies.
· If it is before the 2 October 2001, then the privative regime does not apply.
· In order to answer this question, refer to Part 7 of the Act.
· Tick and cross what the Tribunal has done against important obligations imposed upon it by the Act.
· Have the relevant sections of the Act before you. Look for a statutory duty that has not been satisfied or that has been breached (ie by an incorrect interpretation of the provision or by oversight):-
Section 424(1):
In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
Eg:- Section 424A.
· A breach of s420 of the Act is not itself a ground of review: MIMIA v Eshetu (1999) 197 CLR 611.
Section 420:-
Refugee Review Tribunal's way of operating
(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.
· A breach of s430(1) of the Act is not itself a ground of review: MIMIA v Yusuf (2001) 180 ALR 1.
· It is important to critically analyse the Tribunal’s reasons against the applicants evidence before the Tribunal, the applicant’s claims and their submissions.
· Note: the ground of failure to take into account a relevant consideration could only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J at 39-41.
· The Tribunal is not bound to refer to every item of material relied on by the applicant: see Re MIMIA; Ex parte Durairajasingham (2000) 168 Alr 407 at 423 per McHugh J:-
If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.
· Ask: has the Tribunal failed to deal with an aspect of the Applicant’s case? Often this can be inferred by a failure to make mention of the matter. Is this aspect important to his/her case?
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184.
· Dranichnikov v MIMA:Re Minister for Immigration[2003] HCA 26: the High Court in it’s original jurisdiction addressed the formulation of particular social group, which a majority considered was raised as a Convention ground, of "businessmen who publicly criticised and sought reform of the law enforcement authorities to compel them to take effective measures to prevent crime in Vladivostok and to protect Russian businessmen who protested’. A misunderstanding of and a failure to address the applicant’s case was a failure to accord natural justice and a constructive failure to exercise jurisdiction.
· WAIK v MI [2003]FMCA 33: Raphael FM set aside a RRT decision on the grounds of a failure to address the question of whether an applicant falls within a particular social group (at [16]- [20])
· SAAD v MIMIA [2003] FCAFC 65: a failure to consider a claim of persecution at all constitutes jurisdictional error. Carr J. with whom Cooper and Finkelstein JJ. agreed said:
After the appellant had given evidence, his adviser submitted to the Tribunal that there was a sur place issue in that the appellant could face persecution if returned to Iran because of the fact that he had applied for a protection visa. I shall refer to that claim as "the first sur place claim". The adviser said that she disagreed with certain advice from the Department of Foreign Affairs and Trade ("DFAT") to the effect that failed asylum seekers could safely return to Iran without risk of persecution. The adviser referred to information received from the International Federation of Iranian Refugees which had been prepared in response to a Dutch governmental report on Iran. The adviser further submitted that although DFAT had reported that it was safe to return failed asylum seekers to Iran, criticism of the regime could result in serious consequences. The authorities could assume that a failed asylum seeker such as the appellant had criticised the regime in making a claim for refugee status. She pointed out that she had made similar submissions had been made in another Tribunal matter. The Tribunal agreed that it would consider those submissions in relation to the matter of the appellant.
THE APPEAL
29… One member of the Court raised with counsel for the respondent the significance or otherwise of the Tribunal's apparent failure to deal with the first sur place claim despite its assurances, at the first hearing, that it would consider certain (identified) submissions on that matter.
THE FIRST SUR PLACE CLAIM
39 The respondent submitted that the Tribunal had in fact dealt with the appellant's claim to have a raised profile with the authorities as a result of his application for asylum in Australia, when it said this:
"He left Iran legally and without being of any adverse interest to the authorities at that time, and since I find his claimed conversion to Christianity is not genuine that this would create no additional impediment to his safe return to Iran where his profile is no greater than it was when he left."
40 I reject that submission. There is no mention in the above passage of the first sur place claim. Nor is that claim mentioned anywhere else in the Tribunal's reasoning. My assessment is that the Tribunal failed to consider the discrete, first sur place claim. This, in my view, was not (as the respondent submitted) simply a failure to refer to evidence in support of such a claim, but a complete failure to consider the claim at all. In my view, the Tribunal thereby fell into jurisdictional error of the type referred to in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. See also SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [14] and Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [79].
· Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184:
48 In the present case it was clearly a significant element of the appellant's application before the Tribunal that the marriage of his son S to a Muslim woman would have repercussions for him and his wife upon their return to Iran. It was clear also that he was contending that these repercussions would amount to persecution for a Convention reason. That is to say the religion of S and his wife. The contention was advanced in the wider context of general attitudes to members of the Sabian Mandaean religion by Muslim people in Iran.
49 The material put before the Tribunal on the son's intermarriage issue and the contentions advanced in respect of it went directly to the criterion for the grant of a protection visa set out in s 36. While the Tribunal recounted the appellant's claims on this issue early in its reasons, its failure to consider the evidence and the contention leads to the inescapable conclusion that it failed to address the issue.
… As appears from the review of material put before the Tribunal, the failure by the Tribunal to consider the evidence about S's marriage and the repercussions flowing from it and the contentions based on that evidence, amounted to a failure to consider an issue going directly to the question whether the criterion under s 36 of the Act was satisfied. The Tribunal therefore in our opinion, failed to discharge its duty of review and made a jurisdictional error.
· The Tribunal usually uses a template (ie a verbal formula) that is routinely used. Note that this does not mean that the Tribunal’s reasoning and fact finding is correct. It may be wrong and appealable:- "if a decision-maker uses the formula to cloak the decision with the appearance of conformity with the law when the decision is infected by one of the grounds of invalidity prescribed by the Act, the incantation of the formula will not save the decision from invalidity": Wu Shan Liang (1996) 185 CLR 259 at 266 per Brennan CJ, Toohey, McHugh and Gummow JJ.
· Refer to the comments of Gaudron and Kirby JJ in Re MIMIA; ex parte Applicants S134/2002 (2003) 195 ALR 1 at [76]:-
Hitherto, if a decision-maker has, in considering an application for a protection visa, failed to give effect to the Convention because, for example he or she has misunderstood the nature of persecution (Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379) or the nature of the grounds to which the Convention refers (Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293)m that failure has constituted jurisdictional error entitling an applicant to relief under s 75(v) of the Constitution. That is because a decision-maker who has not given effect to the Convention cannot be said to have been satisfied or not to have been satisfied that the person concerned is a person to whom Australia owes protection obligations. And his or her satisfaction or lack of satisfaction in that regard is a condition precedent to the grant or refusal of a protection visa.
· The Tribunal cannot immunize itself from review simply because it has stated the law correctly.
· The next question is, has it applied the law correctly?
· In the case of MIMA v Sarrazola (2001) 107 FCR 185 Merkel J stated at [53]:-
The RRT cannot immunize itself from review by correctly stating the tests to be applied in order to determine whether the causal nexus requirements of Art 1 (2A) are satisfied. It must also correctly apply the tests. Ultimately, "the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law.
Examples:
· The Full Court (French von Doussa and Marshall JJ.) in Scargill v MIMIA [2003] FCA FCAFC 116 allowing an appeal from Scargill vMIMIA [2002] FCA 1523 held that misconstruction of a visa criterion is jurisdictional error.
· WAGH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 194 (27 August 2003) where the Court held that the Tribunal’s understanding of the ability to relocate was erroneous:-
39 The Tribunal purported to ground its decision upon the following understanding of the relevant law:
`The Tribunal finds that the[the wife] has a capacity to enter the USA where, as a matter of practical reality and fact, she has access to a refugee determination system that offers effective protection to applicants who are refugees and who do not face any prospect of refoulement to their country of origin. In such circumstances she is not owed protection obligations by Australia.'
40 If subs 36(3) had no application to the facts of the appellants' circumstances, the Tribunal erred by purporting to apply to subs 36(2) an erroneous construction.
41 The requirements of subs 36(3) are not satisfied by determining that a person has a "capacity" to enter another country and has as "a matter of practical reality and fact...access to a refugee determination system that offers effective protection to applicants who are refugees". Under subs 36(3) the right to enter and reside in another country that is to be taken to prevent protection obligations to a refugee arising under the Convention for the purpose of determining entitlement to a protection visa, is an existing right to enter and reside and, implicitly, to receive protection equivalent to that to be provided to that person by a Contracting State under the Convention.
42 The visa issued by the United States permits the wife to travel to the United States and, if she satisfies the relevant United States border authority that the purpose of her entry is consonant with the terms of the visa she holds, she may be admitted to the United States for the purpose of the visa. The right to enter and reside in the United States thus obtained would be a right to enter and to reside for the purpose of tourism or business, not a right to enter and reside in the United States for the purpose of receiving protection of some equivalence to that to be provided by a Contracting State under the Convention.
· Was there a doubt expressed by the Tribunal that its findings on material questions of fact was not correct?
· If there is such doubt then the Tribunal’s failure to take into account the possibility that the alleged events might have occurred might demonstrate that the Tribunal had not required the required speculation about the chances of future persecution.
Examples:-
See: MIMA v Rajalingam (1999) 93 FCR 220 per Sackville J at 241.
· Applicant NAKB of 2002 v MIMIA [2003] FCA 534 per Tamberlin J. His Honor held allowing an appeal from the Federal Magistrates Court that a failure to reasonably speculate and to deal with a central claim in light of the Tribunal’s doubts about its principal findings amounted to jurisdictional error:-
13 It is of course necessary to make proper allowances for infelicity of expression and to look at the substance of the RRT reasoning. In the present case, the RRT has expressed doubts about its conclusion as the basis for proceeding to consider the matter further. Language such as "if the Tribunal is wrong about rejecting his arrest" and "if the Tribunal is correct in this finding" is charged with strong indications of doubt sufficient, in my view, to satisfy the application of the alternative approach referred to in Rajalingam.
14 If one applies the "what if I am wrong" approach, the question arises whether the RRT dealt at all with the appellant's claim that as a consequence of the arrest, having regard to the fact that personal details, photographs and finger prints were taken in relation to the appellant in December 1998, there was a real chance of persecution if returned to Sri Lanka.
15 The determination of this claim turns on a reading of the reasons for decision of the RRT as a whole. In particular, one focal point for determination of this question is the last paragraph quoted earlier.
16 It is clear that the RRT was aware from material before it, including the further submission made after hearing, that the claim had been made that the fact of the arrest and detention and the records taken could give rise to a real chance of persecution. The reasoning of the RRT does not expressly address this question.
· Actual bias by the Tribunal member?
o Does the Tribunal’s approach to the applicant’s case demonstrate views that are incapable of alteration: see SBAN v MIMIA [2002] FCA 591.
o Actual bias is not easy to establish and will not be a finding made lightly be a Court.
· Any other breach of the rules of natural justice/procedural fairness?
o For example, in the decision of Tran v MIMIA [2003] FCA 44, Finkelstein J set aside a decision of the Migration Review Tribunal ("the MRT") in breach of the rules of natural justice where the MRT rejected evidence of witnesses because they were present in the hearing room without giving a warning that the witnesses should leave the room.
o MIMIA v SCAR [2003] FCAFC 126 ( Gray Cooper and Selway JJ.) (dismissing an appeal from SCAR v MIMIA [2002] FCA 1481) held that it is a breach of s425 if the oral hearing before the RRT is unfair. The hearing was unfair because the applicant was traumatised, and on medication, after learning of his father's death. This was established, to the satisfaction of the primary judge, by various evidence, none of which was before the RRT. It was irrelevant that the applicant's problems were not raised before or during the RRT hearing and irrelevant that the RRT member conducting the hearing was unaware of any problem.
o VAAC v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCAFC 74 at (27):
It is well established that the rules of natural justice require that a decision-maker bring to an applicant's attention the critical factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it: seeKioa v West (1985) 159 CLR 550 at 587; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481; and Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at 557.
o One should note the introduction of s 422B on 3 July 2002. That section, introduced by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), seeks to limit the "natural justice hearing rule", and to restrict the requirements of procedural fairness to those expressly set out in the Act. Section 422B has no retrospective application and the extent to which it limits natural justice (common law) is unclear though it purports to represent a complete statement of the Tribunal’s obligations. A possible effect will be that the scope of jurisdictional error on this basis will be more restrictively confined in relation to decisions made after its enactment than would be the case at common law.
· An unreasonable refusal of an adjournment?
o In SCAZ v MIMIA [2002] FCA 1377 per von Doussa J, found that an arbitrary and capricious refusal of an adjournment deprived the applicant of a fair hearing on the real issue that required decision.
· An unreasonable exclusion of relevant country information provided by the applicant from the Tribunal’s consideration?
o Abedi v MIMA [2001] FCA 1430 per Merkel J:-
[28] The point I made in Inderjit Singh is that the RRT, as an inquisitorial body, is required to have regard to the material "before it" for the purposes of the review in the sense that it is not entitled to exclude that material from its consideration without having a proper basis for so doing. A proper basis may exist, for example, where the RRT is functus officio or where it has determined that the material is not credible or reliable or is irrelevant to the review it is conducting.
[29] In the present case the RRT did not give any reason for excluding the information contained in the Macpherson & Kelly submission. It was not requested to exclude that material from its consideration. It was not suggested on behalf of the Minister that the change of advisers, without more, would entitle the RRT to exclude from its consideration apparently credible and relevant material proffered by the previous adviser.
· Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 195 ALR 24; 77 ALJR 454 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 (2003) 195 ALR 1 77 ALJR 437 together now represent the law concerning the extent to which migration decisions are reviewable and the effect of the privative clause.
· The approach taken by the Full Court in NAAV was clearly rejected.
· Since the decision of the High Court on 4 February in Plaintiff S157, jurisdictional error has re-emerged as a ground for judicial review of RRT decisions. The High Court in Plaintiff S157 v MIMIA [2003] HCA 2 (4 Feb 2003) held that a decision affected by jurisdictional error is not a decision under the Act and is therefore not protected from review by the privative clause, s 474.
Gleeson CJ in S157:-
The principles of statutory construction stated above lead to the conclusion that Parliament has not evinced an intention that a decision by the Tribunal to confirm a refusal of a protection visa, made unfairly, and in contravention of the requirements of natural justice, shall stand so long as it was a bona fide attempt to decide whether or not such a visa should be granted. Decision-makers, judicial or administrative, may be found to have acted unfairly even though their good faith is not in question. People whose fundamental rights are at stake are ordinarily entitled to expect more than good faith. They are ordinarily entitled to expect fairness.
· Subsequent decision makers have expressed a variety of opinions, some adopting a restrictive approach to the High Court’s decision (eg Lobo), some adopting a broader approach.
· Suffice to say, s474 must be read so as to refer only to to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act (at [76]).
· Plaintiff S157 also makes it clear (at least before the coming into force of the Migration Legislation Amendment (Procedural Fairness) Act on 4 July 2002) that a breach of the common law rules of natural justice or the duty of procedural fairness is a breach of an inviolable limitation and thus a jurisdictional error.
· The authoritative cases on jurisdictional error are the High Court cases of Craig v Sth Australia (1995) 184 CLR 163 and MIMIA v Yusuf (2001) 206 CLR 323; [2001] HCA 30:-
Facts:- re stay of a criminal prosecution - District Court allowed stay - Full Crt quashed stay order on basis that judge committed jurisdictional error. HC no grounds existed for certiorari b/c no jurisdictional error.
Decision:-
The HC delivered a unanimous judgment holding that there was neither jurisdictional error nor error on the face of the record by the Disctrict Crt and no grounds existed for the granting of certiorari.
By applying the doctrine of jurisdictional error to inferior courts (compared with tribunals) the HC stated that jurdal error occurs if:
"...it mistakenly asserts or denies the existence of jurn or if it misapprehends or disregards the nature or limits of its function or powers in a case where it correctly recognises that jurn does exist (... infecting either a positive act or a refusal or failure to act.)"
The HC explained that jurnal error occurs most obviously where an inferior crt purports to act wholly or partly beyond the general area of its jurisdiction. The crt also identified less obvious situations where jurisdictional error can occur, namely if an inferior court:
o whilst acting wholly within the general area of its jurisdiction, does something which it lacks authority to do; or
o disregards or takes account of a matter in circumstances where the statute or other instrument establishing it and conferring its jurn requires that a particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circs of the particular case;
o misconstrues the statute which establishes it (and confers relevant jurn) and thereby misconceives the nature of the function it is performing or the extent of the powers in the crics of the case.
Facts: applicant claimed harrassed on 3 occasions - tribunal only considered 2 occasions and not the third - did not refer to the third.
Decision:- FC at first instance found failure of RRT to refer to third incident amounted to an error of law under the then s430(1)(c). Full Crt affirmed, as did HC.
HC considered what would amount to jurnal error and stated
that:-
"As was said in Craig, if an administrative tribunal "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purpoted exercise of power is thereby affected, it exceeds its authority or powers. Such an error lf law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
"Jurnal error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circs of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law…
Court concluded that, it was "... important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it "exceeds its authority or powers". If that is so, the person who purported to make the decision "did not have jurn" to make the decision he or she made, and the decision "was not authorised" by the Act.
· Therefore, you should ask:
(i) Has the Tribunal:-
o identified a wrong issue
(ii) Has it done so in a way that effects the exercise of it’s power? Has the Tribunal exceeded it’s power?
· The basic jurisdiction exercised is s 39B of the Judiciary Act in the Federal Court and s 75(v) of the Constitution in the High Court.
· Also, refer to s23 and 32 of the Federal Court of Australia Act 1976.
· An example application is attached.
IN THE FEDERAL MAGISTRATES' ) No.
COURT OF VICTORIA )
VICTORIA DISTRICT REGISTRY )
XX of 2003 Applicant
Minister for Immigration and
Multicultural and Indigenous
Affairs
Respondent
AMENDED APPLICATION
(Order 4, rule 1)
Application pursuant to s.39B of the Judiciary Act 1903 (Cth) and ss.23 and 32 of the Federal Court of Australia Act 1976 (Cth) for review of decision of the Refugee Reveiw Tribunal (the "Tribunal") handed down on XX (the "the decision").
A. DETAILS OF CLAIM
1. On the grounds stated below, the applicant claims:-
i. A declaration that the decision is unlawful, void and of no force and effect.
2. The applicant is a citizen of XX, who lodged an application for a protection visa on the basis that he had a well-founded fear of persecution giving rise to protection obligations under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees ("the Convention").
3. The interests of the applicant are affected by the decision.
Particulars
The decision denies the applicant an entitlement to remain in Australia.
If the applicant is removed to XX, he faces a real chance of persecution within the meaning of the Convention.
B. GROUNDS OF CLAIM
1. The Tribunal acted without or in excess of jurisdiction, and/or identified a wrong issue, asked a wrong question, relied on irrelevant material or ignored relevant material.
Particulars
The Tribunal failed to consider the applicant's express claim that he was at risk of persecution because of his membership to a particular social group, namely "political party X".
The Tribunal ignored relevant material submitted by the applicant, namely:-
§ Newspaper article pertaining to country X
The Tribunal failed to make findings as to whether the applicant had been arrested and detained as claimed in 1995 by the secret police.
The Tribunal failed to consider "what if it was wrong".
2. The applicant was denied natural justice.
Particulars
The applicant was not given an opportunity to respond to the suggestion/finding that his marriage was fabricated.
The omission by the Tribunal to disclose this information to the applicant was material in this case.
Had the Applicant been advised of this matter, he would have provided a statement from the priest who conducted the marriage ceremony.
3. The decision was so unreasonable that no reasonable decision-maker could have made it.
Particulars
The applicant refers to and repeats the particulars set out in paragraph ….
4. The Tribunal failed to review and consider the application for the purposes of ss.47, 65 and 414 of the Migration Act 1958.
Particulars
The applicant refers to and repeats the particulars set out in paragraph ….
Date:
A. TO THE RESPONDENT
C/-
This applicant has been set down for the time and place stated below. If you or your legal representative do not attend the Court at the time, the applicant may be dealt with and judgment may be given, or an order made, in your abscence. As soon after the time mentioned as the business of the Court will allow, any of the following may happen:-
(a) the application may be heard;
(b) directions may be given for the further conduct of the proceeding;
(c) any application for interlocutory relief may be heard.
Before any attendance at Court, you must file an appearance in the Registry.
Time and date for hearing:
Place:
B. FILING AND SERVICE
This application is filed by
The applicant's address is
· Attached are extracts to two recent cases to look at as the reasoning adopted by the Court is clear and useful:-
3 The appellant is a national of India. He is a Muslim…
5…the ruling party in India, the BJP was giving support to the groups who were targeting him.
…
17…. The substance of the submission, and I think it is the real substance of the case the appellant sought to make before the learned Magistrate but which the learned Magistrate did not perhaps understand, was that the appellant's case before the Tribunal was, or certainly included the case he had put in writing in the letter which accompanied his application to the Tribunal and indeed which had been stated in summary form in the visa application. It may be accepted that the oral evidence the appellant gave before the Tribunal merely related to other additional matters. The complaint is that the Tribunal considered only the oral matters raised by the appellant but had failed to consider at all the case which the appellant had at all times sought to rely upon, a case which claimed persecution on religious grounds, particularly from the underground movement which had the support of the government party and was therefore not impeded from persecuting him.
18 …the real issue… is whether the Tribunal failed to consider at all the written case which the appellant had at all times prior to the oral hearing in the Tribunal advanced.
19…I would give leave to the appellant to raise in the appeal, as a ground of review, that the Tribunal failed or constructively failed to exercise its jurisdiction by not dealing with the case, or a substantial part of the case which the appellant sought to put before it.
…..
17 On the appeal before me the appellant filed a written submission. The substance of the submission, and I think it is the real substance of the case the appellant sought to make before the learned Magistrate but which the learned Magistrate did not perhaps understand, was that the appellant's case before the Tribunal was, or certainly included the case he had put in writing in the letter which accompanied his application to the Tribunal and indeed which had been stated in summary form in the visa application. It may be accepted that the oral evidence the appellant gave before the Tribunal merely related to other additional matters. The complaint is that the Tribunal considered only the oral matters raised by the appellant but had failed to consider at all the case which the appellant had at all times sought to rely upon, a case which claimed persecution on religious grounds, particularly from the underground movement which had the support of the government party and was therefore not impeded from persecuting him.
18 The written submission takes up, as well, the question of the time at which the proceedings in the Tribunal were to be held and the question of whether there was one or more than one letter advising the appellant when the hearing was to be held. With respect to the appellant, these matters are somewhat extraneous to the real issue which is whether the Tribunal failed to consider at all the written case which the appellant had at all times prior to the oral hearing in the Tribunal advanced.
19 Because the appellant had been unrepresented, there was no real attempt to formulate the appellant's grounds of review before the learned Magistrate or the grounds of appeal to this Court from the Magistrate's decision. This is clearly unsatisfactory, not only to the Court but also to counsel for the Minister. To the extent that leave is necessary to amend grounds of review before the Magistrate (and there are no grounds to amend because none are stated), I would give leave to the appellant to raise in the appeal, as a ground of review, that the Tribunal failed or constructively failed to exercise its jurisdiction by not dealing with the case, or a substantial part of the case which the appellant sought to put before it.
…
22 As I have already noted, I gave leave to the appellant to tender the tape recording of the proceedings before the Tribunal. I did this because it seemed to me that the only way it could be determined what the issue was that the appellant sought to rely upon before the Tribunal was for the Court to know precisely how the appellant had put his case to the Tribunal. In so doing I recognised that it was an unusual course to take on an appeal to admit evidence that had not been received in the proceedings at first instance. However, in the exercise of my discretion on appeal it was, in my view, in the interests of justice that I accept a tender of the tape and listen to it. I record that counsel for the Minister objected to the tender.
23 The issues which arise on the appeal can now be summarised as follows:
1. Did the appellant present for the decision of the Tribunal the case which he outlined in his application for a visa and the letter of 2 November 2002? The question can be put in another way, namely, whether the appellant, by what happened at the oral hearing, resile from requiring the Tribunal to consider the initial case?
2. If the answer to the first question is that the appellant did not resile from requiring the Tribunal to consider the written case, then did the Tribunal fail to review the appellant's case, at least to the extent that it failed to consider the written case and rule upon it?
3. If the answer to question 2 is "yes", did that failure constitute a jurisdictional error such that the failure of the Tribunal to consider the case put by the appellant was not protected by the provisions of s 474 of the Migration Act 1958 (Cth) ("the Act")?
4. Associated with Question 3, but depending upon whether the answer to that question is "yes", am I bound by the decision of the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193
ALR 449 to find that s 474 renders the decision of the Tribunal impervious to judicial review, notwithstanding the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24?
Question 1
24 Although the appellant did not in oral argument traverse any of the matters dealt with in what may be referred to as his initial case I do not think that it is correct to say that the appellant resiled from that case just because he did not, in answering the questions which the Tribunal put to him refer to that initial case. In so holding I bear in mind that the appellant was not represented and can be assumed not to be familiar with the way administrative tribunals proceed in non adversarial proceedings. The appellant's case, in essence, is that he understood the proceeding adopted to be that the Tribunal would be concerned to ask matters on which the Tribunal had doubts. To the extent that the Tribunal did not ask any specific questions, that was a matter for the Tribunal, not the appellant. This does not completely explain why the appellant made no mention of the matters in the initial case when asked about his fears of returning to his country of nationality. But on balance I do not think that an unrepresented appellant should be taken to give up a case which he has explained in a detailed letter to the Tribunal by saying nothing about that case. More than that is required to permit the conclusion to be drawn that the appellant in fact resiled from the case which he had initially formulated for the decision of the Tribunal in his application to it to review a decision of the Minister.
Question 2
25…. The Tribunal simply did not address the case which the appellant had requested it to deal with.
Question 3
26 The question what constitutes a jurisdictional error so as to found a case for relief by way of prohibition or certiorari is far from a clear one. The significance of the question is to be found in s 474 of the Act, the privative clause section which, on its face, would suggest that neither the High Court or this Court could have jurisdiction to review a decision, inter alia, of the Tribunal. The meaning of that section involves reading it together with the rest of the Act in accordance with what may be referred to as the established line of authority commencing with the decision of the High Court in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 and concluding with Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.
27 Hickman made it clear that a privative clause, such as s 474 had to be read against other provisions in the legislation, which include in the present case not only the grant of jurisdiction to this Court under s 39B of the Judiciary Act 1903 (Cth) to grant relief by way of mandamus and prohibition in respect of administrative decisions under the Act, or at least those not protected by s 474, but more importantly, the conferral of jurisdiction upon the Refugee Review Tribunal to review decisions of the Minister to grant visas such as, in the present case, protection visas where the grant of such visas are subject to criteria.
28 Section 474 itself only operates to make final and unreviewable decisions of an administrative character which, relevantly, are made under the Act itself. In Plaintiff S157/2002 the High Court held that the protection which s 474 purported to afford against judicial review was limited to decisions "made, proposed to be made, or required to be made ... under this Act". Those words do not refer to decisions purporting to be made under the Act but rather valid decisions which "involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act." Decisions of an administrative nature which involve "jurisdictional error" will in law be not regarded as decisions at all (Plaintiff S157/2002 at par 76). So, in the paragraph cited Gaudron, McHugh, Gummow, Kirby and Hayne JJ added:
"Thus, if there has been jurisdictional error because, for example, of a failure to discharge `imperative duties' or to observe `inviolable limitations or restraints', the decision in question cannot properly be described in the terms used in s 474(2) as `a decision ... made under this Act'" (footnotes omitted).
29 The question whether a failure to observe some procedural or other requirement of the Act will constitute an error which results in a failure to exercise jurisdiction or the Tribunal exceeding its jurisdiction will likewise involve a reconciliation or interpretation process. However, the process is one that, as the High Court pointed out will necessarily have to be read against the constitutional jurisdiction conferred upon the High Court inter alia to grant the constitutional writs to which s 75(v) of the Constitution refers. The constitutional writs of prohibition or mandamus are available only where there is jurisdictional error. Since s 474 will not operate to protect a decision where there is jurisdictional error in the decision making (ie where the decision is void) the High Court held in S157/2002 that a decision which was flawed for reasons of a failure to comply with the principles of natural justice (a species of jurisdictional error) was not a privative clause decision within s 474(2) of the Act. Accordingly the High Court had jurisdictions to grant prerogative relief in respect of it.
30 At par 94 of the decision, the High Court pointes out that the construction given to the term "privative clause decision" applies not only where the jurisdiction enlivened is the constitutional jurisdiction of the High Court but where the jurisdiction invoked is that conferred upon this Court or the Federal Magistrates Court. It follows that, to the extent that the decision of the Full Court of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 is inconsistent with that construction the case was wrongly decided. Cases in this Court where jurisdictional error is relied upon for relief under s 39B of the Judiciary Act 1903 (Cth) will not, therefore, be subject to the limitation which s 474 of the Act on its face imposed upon this Court.
31 The question not decided in Plaintiff S157/2002 (because it was unnecessary to decide, other than in respect of denial of procedural fairness) is what constitutes jurisdictional error in the sense used by the High Court in that case. Clearly failure to afford natural justice will constitute jurisdictional error for that is what the High Court actually decided in Plaintiff S157/2002. However, the question of what constitutes jurisdictional error as a ground for the grant of the constitutional writs of prohibition and mandamus (or the ancillary relief of certiorari) such as to bring about the result that the decision in question is a nullity, has been the subject of discussion in a number of cases.
32 At the same time as the High Court delivered judgment in Plaintiff S157/2002 the Court also delivered judgment in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1… there was no constructive failure on the part of the Tribunal to exercise its jurisdiction of review. No comment was made by the majority as to whether there would have been jurisdictional error had the Tribunal been asked to consider the claim. On the other hand the fact that the Court denied relief upon the ground that the Tribunal was not requested to consider the issue and not on the ground that a failure to consider a relevant issue did not constitute a jurisdictional error leads, I think, to the conclusion that the majority of the Court were of the view that but for the failure of the applicant to request the Tribunal to consider the application on the family unit basis there would have been jurisdictional error.
33 Gaudron and Kirby JJ noted that the question whether there was a failure or constructive failure, to exercise jurisdiction required consideration of the nature of the obligation imposed upon the Tribunal (and in relation to a decision of the Minister which was also challenged, by the Minister). Their Honours stated the effect of Plaintiff S157/2002 to be as follows (par 72):
"... [Section] 474 does not prevent the grant of prohibition, mandamus or certiorari in respect of decisions on the part of officers of the Commonwealth involving jurisdictional error for such decisions are not regarded, in law, as decisions at all and are, thus, not properly described as `a decision ... under [the] Act'. However and as also explained in Plaintiff S157/2002 v The Commonwealth of Australia, the effect of a provision such as s474 ofthe Act is to necessitate an examination of statutory limitations or requirements to ascertain whether, in the light of s474's restrictions on judicial review, non-observance of those limitations or requirements does or does not result in jurisdictional error."
34 The first obligation which s 65 of the Act imposed was to consider a valid visa application. The second was to have regard to the matters specified in the subsection including the criteria prescribed by the Act and the Migration Regulations 1994 (Cth) ("the Regulations") for the grant of the visa in question. Thus there was a duty to consider whether the applicant was a refugee as defined in the Convention. Misunderstanding of the relevant criteria (eg the meaning of persecution) would constitute jurisdictional error. An argument that failure to have regard to criteria prescribed by the Act or the Regulations no longer constituted jurisdictional error after s 474 was enacted was rejected.
35 What matters for present purposes is not whether a failure to consider the relevant criteria would be jurisdictional error, but rather whether a failure to consider at all the case or a substantial part of the case advanced by an applicant would constitute jurisdictional error. Clearly the Tribunal has the same powers as the original decision maker within the context that the Tribunal was obliged to review the original decision and acting in the shoes of the decision maker to do again what the decision maker was required to do. The powers thus conferred upon the Tribunal likewise involve the consideration of the application against the criteria which the Act and the Regulations prescribed. It is, I think, quite clear that in the view of Gaudron and Kirby JJ, at least, the failure of the Tribunal to give consideration to the argument or case put forward by an applicant would constitute jurisdictional error and result in a decision which would not be a decision made under the Act and accordingly not be protected by s 474.
36 The general nature of what constitutes jurisdictional error has been considered by the High Court in a number of other cases. There is some discussion of the concept in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, although that case was actually concerned with the grounds of judicial review in the then s 476 of the Act, and not directly with jurisdictional error in the context of the constitutional writs. Nevertheless the joint judgment of McHugh, Gummow and Hayne JJ contains the following discussion at pars 82 - 83 (pp 351 - 352):
"As was said inCraig v South Australia, if an administrative tribunal (like the Tribunal)
`falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it'.
`Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.
... In particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it `exceeds its authority or powers'. If that is so, the person who purported to make the decision `did not have jurisdiction' to make the decision he or she made, and the decision `was not authorised' by the Act." (footnotes omitted)
37 Craig v State of South Australia (1995) 184 CLR 163 was a case where application was made for certiorari in respect of the decision of the District Court of South Australia. It was not a case involving an administrative tribunal and indeed the joint judgment of Brennan, Deane, Toohey, Gaudron and McHugh JJ at 176 emphasises the need to distinguish what is meant by jurisdictional error where the decision under review is a decision of a tribunal and the case where the decision under review is the decision of an inferior court amenable to certiorari. The Court did not make explicit what that distinction really was. However, the judgment suggests that the significance of the distinction lies in distinguishing what errors of law will be jurisdictional errors and what will not be because they are errors made within jurisdiction. An administrative tribunal, particularly in the setting of the Australian constitutional framework detailed in Chapter III of the Constitution, will lack authority inter alia to determine a matter other than in accordance with law. Because the tribunal is not vested with judicial power it will have no jurisdiction to decide matters of law (except in so far as its jurisdiction will extend to making a decision on legal issues in connection with deciding whether it has jurisdiction). On the other hands, inferior courts amenable to certiorari will have jurisdiction conferred upon them to decide questions of law as well as questions of fact. Decisions from such courts will be appealable if wrong in law, but decisions of law will thus be made within jurisdiction. Decisions of law by tribunals, on the other hand, will not be within jurisdiction.
38 The distinction between jurisdictional and non-jurisdictional errors may, for practical purposes, have been abolished in the United Kingdom as a result of the decision of the House of Lords in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. That is not the case in Australia where it has been maintained: Public Service Association (SA) v Federated Clerks' Union of Australia South Australian Branch (1991) 173 CLR 132 at 141 per Brennan J. Indeed, as Plaintiff S157/2002 demonstrates, the distinction marks out the line where a privative clause will not oust the supervisory jurisdiction of the High Court.
39 More generally, whether the question arises in the case of tribunals or whether it arises in the case of inferior courts, it would seem to be well settled that there will be jurisdictional error where a tribunal or court misconceives its role, misunderstands the nature of its jurisdiction, misconceives its jurisdiction or duty or fails to apply itself to the question which the act conferring jurisdiction requires it to consider or misunderstands the nature of the opinion which it is required to form: Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 208-9 per Gleeson CJ, Gaudron and Hayne JJ and the cases to which their Honours refer in the passage cited.
40 It follows, I think, as a matter of principle, that whatever may be the case with an inferior court subject to certiorari, and whatever may be the case where the error relied upon is an error of law, where an administrative tribunal fails to exercise its jurisdiction by failing to consider the case advanced by an applicant before it the tribunal will have made a jurisdictional error, such that its decision will be a nullity. Failure to exercise jurisdiction will be a jurisdictional error: Public Service Association at 160 per Dawson and Gaudron JJ. Such a failure will exist in a case where a tribunal simply does not consider at all a case which an applicant to it wishes to advance. There is no reason to believe that this will also be the case where a tribunal does not consider a significant part of an applicant's case, albeit charged with the obligation to determine in a review whether the applicant fulfils the relevant criteria for a visa.
41 The jurisdictional error may be labeled as a constructive failure to exercise jurisdiction (cf the classic statement of Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420) or simply as a failure to exercise jurisdiction. Nothing turns upon the label here. In either case there is involved a failure to consider the substance of the claim. Constructive failure to exercise jurisdiction arises where there has been a misunderstanding of the duty, as, for example, a misunderstanding of the meaning of the word "refugee" in the Convention: see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 82 per Gaudron J. Failure to exercise jurisdiction goes beyond that and encompasses the case where a Tribunal simply fails to consider at all the case which an applicant for a visa seeks to make or, as in the present case, fails to consider a substantial part of the case which the appellant seeks to make.
Question 4
42 This question arises because counsel for the Minister submitted that even were I to be of the view, as I am, that there was a jurisdictional error leading to the conclusion that the decision of the Tribunal was a nullity and therefore not a decision to which the provisions of s 474 applied, I was bound by the decision of the Full Court of this Court in NAAV to find for the Minister. The submission is not an attractive one, especially as I am also bound to follow decisions of the full High Court. However, it appealed to Gyles J in Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 144, a case which involved an error of law made by the Tribunal which constituted a constructive failure to exercise jurisdiction.
43 In Lobo Gyles J held that he was bound by NAAV as a single judge to hold that s 474 precluded relief being given. His Honour also expressed the view that Plaintiff S157/2002 did not hold or at least, arguably did not hold, (contrary to my view) that jurisdictional error fell outside the provisions of s 474 and that, in any event, having regard to the decision in NAAV it was inappropriate for a single judge to take the view that Plaintiff S157/2002 in effect overruled much of what was said in Hickman.
44 It is true that nowhere in the High Court judgment can there be found any discussion of NAAV. Nothing was said in any of the judgments which could be taken as having explicitly overruled NAAV. Five cases were heard together and are reported under the name NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449. The first, NAAV itself involved a denial of natural justice. The majority found that s 474 precluded relief. That decision is completely inconsistent on any view with Plaintiff S157/2002. The second case was NABE v Minister for Immigration and Multicultural and Indigenous Affairs. That case involved a claimed failure of the Tribunal to address certain claims said to be demonstrable from the reasons of the Tribunal which was said to involve a misunderstanding of the claims that the applicant had made… 45 It can be seen that the only case with any relevance to the present problem was NABE. That case is, however, completely distinguishable from the present case. It did not involve, as here, the situation that the substantial case of the appellant was simply not considered. What was said to be the error (if indeed there was one, which arguably there wasn't) was a misunderstanding of the case derived from the use of some language on the part of the Tribunal. In my view, while I am, sitting as a single Judge of this Court, obviously bound by a decision of the Full Court, I am only bound by the decision so far as it deals with the particular facts of the case. This is even more the case where in four of the five cases, two Judges of the Court took one view of the law, two took another, and the Chief Justice agreed with two of the Judges in four of the cases and the other two in one of them. Indeed, there is a real question precisely what the ratio of the case is, other than so far as that is discoverable from the outcome.
46 Accordingly I do not accept that I am bound by NAAV in the present circumstances.
47 Lobo itself was a case where the claimed constructive failure of jurisdiction involved an agreed error of law. As I have pointed out earlier, there may be a question whether an error of law involves jurisdictional error, particularly where it is accepted that not all errors of law will involve jurisdictional error. Indeed, it would seem it will only be those errors of law as involve inviolable limitations which will involve jurisdictional error. But whatever may be the outcome of this debate, the facts in Lobo are completely distinguishable and this relieves me of the necessity of deciding whether I should follow Lobo or take the view that it was clearly wrong and thus not follow it.
48 As Gyles J points out in Lobo there have been comments in a number of decisions of Full Courts of this Court most of which support the view I have taken. However, these have only been dicta and are not binding on me. Of these decisions the only one which may arguably bind me is the decision of a Full Court comprising French, Lindgren and Finkelstein JJ in Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 24. That was a case where the parties had agreed there was an error of law being a jurisdictional error. The Court had to decide whether an error of law had been committed before deciding whether it had jurisdiction to make the order to which the parties had agreed. This required that the court consider s 474 and the effect Plaintiff S157/2002 had on the Court's jurisdiction. If it be the law that the Court must decide whether there was an error of law of the kind which would permit it to remit the matter to the Tribunal for rehearing then it may likewise be the law that the decision is binding on a single judge. I do not need to decide that. If it is binding it would support the decision which I have reached.
49 Conflicting views have been expressed in Koulaxazov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 75 as to the effect of s 474 on this Court's jurisdiction. Those views are all dicta and do not bind me. The decision of the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 supports the view I have taken and not the majority dicta in Koulaxazov although the case was decided on the legislation prior to the enactment of s 474 of the Act.
…
· His Honour said in declaring the RRT decision null and void:
36 By amended application filed on 14 August 2002, the applicants sought, pursuant to s 39B of the Judiciary Act 1903 (Cth), a declaration that the decision of the RRT dated 11 December 2001 affirming the decision not to grant protection visas, was invalid and of no effect. The grounds relied upon were:
`1. The Tribunal did not make the decision in good faith. The Tribunal was not open to persuasion that the Applicants had a well founded fear of persecution.
Particulars
(a) The Tribunal had pre-determined the issue of whether the Sabian Mandaean community faced persecution in Iran.
(b) The Tribunal made credibility findings against the Applicants without regard to the material facts.
(c) The Tribunal ignored the substantive factual basis upon which the applicant family claimed persecution as members of the Sabian Mandaean community.
(d) The Tribunal cited boilerplate "country information" selectively, omitting relevant quotations from the authors cited.
(e) The Tribunal did not consider in its reasons the relevant "country information" and other independent information relevant to the material facts.
2. The Tribunal exceeded, alternatively failed to exercise, its jurisdiction by the decision.
Particulars
(a) The applicant relies on the particulars to ground 1 above.
(b) The Tribunal identified a wrong issue, asked itself a wrong question, ignored relevant material and relied on irrelevant material in such a way as affected the exercise of its powers by an erroneous understanding of what constitutes a "well-founded fear of persecution".
(c) The Tribunal failed to consider all the claims of the Applicants as to why they faced persecution in Iran.
(d) The Tribunal made the decision in breach of indispensable conditions or imperative duties for the exercise of jurisdiction or power under the Migration Act 1958, specifically s 424 and s 424A.
(e) The decision of the Tribunal was so unreasonable that no reasonable person could have come to it.
3. The Tribunal failed to accord procedural fairness in not providing the Applicant with a reasonable opportunity to answer material or information in the possession of the Tribunal.
Particulars
(a) The Tribunal failed to provide to the Applicant for comment a prepared template of "Country Information" on which it relied.
(b) The Tribunal failed to provide the unedited material from which the template was constructed.
(c) The Tribunal failed to provide all material in its possession.'
(Original emphasis)
…
40 After the conclusion of the hearing, Mansfield J delivered judgment in SBAU v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1076. That judgment concerned the outcome of an application for judicial review of a decision of the RRT constituted by the same member who constituted the RRT in these proceedings. Both decisions concerned Mandaean families. The RRT gave both decisions on the same day, rejecting both applications for fundamentally the same reasons, which included, in part, a boilerplate presentation of reasons for decision, including identical introductions, statements of relevant legal principles and applicable country information. It was the fact of substantial coincidence in approach, consideration, expression and outcome which formed part of the submission in the present application that the decision was not a bona fide exercise of the power to review under the Act. The applicants submitted that the failures which persuaded Mansfield J to find a want of bona fides were similarly evident in the reasons in the decision under review. The respondent made further submissions in response to each of the matters raised.
41 More recently, the High Court of Australia delivered judgment in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 195 ALR 1 and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24. In the light of the High Court decisions, the majority decision in NAAV in this Court was no longer correct, and s 474 was given a construction which read down its otherwise broad terms.
…
43…There was, it was submitted, prejudgment of the issues, a failure to hear the claims as put by the applicants, and a failure to apply the correct test of a well founded fear of persecution.
After quoting extensively from the leading authorities on the subject of what conduct can constitute persecution at the Convention standard (See REFUGEE LAW CHAPTER 10 Persecution a) below) he continued:
50 The approach which the RRT must take to its task was identified by McHugh J in Ibrahim (at 33):
`[102] ... In this case, among the questions which the tribunal should have asked were: (a) what harm does the applicant fear on his return to Somalia? (b) is that fear well-founded? (c)why will the applicant be subjected to that harm? and (d) if the answer to (c) is "because of his membership of a particular social group", would the harm constitute persecution for the purpose of the Convention?'
…
52 The authorities also establish that the RRT is required, in the discharge of its duty in conducting a review of the decision of the delegate under s 414 of the Act, to address and deal with the claim actually raised by the material or evidence.
53 In Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 (Full Court), Allsop J, with whom Spender J agreed, said:
`[42] The requirement to review the decision unders 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. See also Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act, eg ss 54, 57, 65, 414, 415, 423, 424, 425, 427 and 428 and the express reference in Regulation 866 to the "claims" of the applicant eg 866.211, make it clear that the Tribunal´ s statutorily required task is to examine and deal with the claims for asylum made by the applicant. ...'
See also the statement of Merkel J at [7] to similar effect.
CONCLUSION
54 On a fair reading of the reasons of the RRT, it failed to address the claims of each of the applicants in all their aspects as it was required to do, and it failed to apply, in respect of the claims made, the test of a well founded fear of persecution under the Convention definition, notwithstanding the provisions of s 91R of the Act.
55 The applicants' claims were not that:
(a) Mandaean children could not go to school;
(b) Mandaeans could not shop in ordinary stores;
(c) Mandaeans could not have access to the police to report the commission of a crime;
(d) Mandaeans could not practice their religion; or
(e) Mandaeans could not go to hospital.
56 That the RRT found that the applicants could not do these things, was no answer to the applicants' claims.
57 Rather, the claim, in part, was what happened to Mandaeans, including the applicants, when they did or attempted to do these things, the treatment which they received and the reasons for such treatment, and those matters that are particularised in par [11] (a) to (o) above, inclusive. The RRT was required to address each of these claims which, on their face, were serious claims which if accepted as having occurred, on the basis of the approach mandated in Chen Shi Hai (at 302 - 303) and the various observations of McHugh J set out above, including the observations of Gummow J in Applicant A and Gaudron J in Ibrahim, are hard to explain as having been engaged in for other than a Convention reason, namely for reasons of religion or because Mandaeans were members of a particular social group.
58 If the RRT accepted, as it appears to have done, that:
(a) rocks were thrown through the windows of the applicants' home;
(b) Mandaeans suffered harassment when shopping;
(c) on occasions the police took no action when Mandaeans laid complaints;
(d) religious premises were confiscated;
(e) Mandaeans are not able to go to university;
(f) Mandaean children at school are forced to learn Islamic religious beliefs; and
(g) Mandaeans have difficulty in hospitals;
then the RRT was required to ask itself why this conduct was engaged in, and if for a Convention reason, whether or not it constituted persecutory treatment. This it did not do.
59 Moreover, the RRT did not address at all the claims of personal violence, and threats of violence to Mandaean women in their homes and in hospitals from Islamic men, nor the reasons for such violence or threats of violence to them (see the claims in pars [11] (l) and (m) above). Nor did it address the claims that children were denied the right to be taught their religion at school, were denigrated for their beliefs and put under pressure to convert to Islam in order to get access to a university education and employment in government service (see the claims in pars [11] (e), (f), (g) and (h) above). Nor did the RRT deal with the claim that because Mandaeans are regarded as unclean, they are denied access to a range of occupations which involve personal contact with food or goods or the provision of medical or other services which require close personal contact with the person (see the claims in pars [11] (g) and (i) above).
60 The RRT did not deal with all of the matters which the applicants referred to as a history of past events and an account and justification of their present fears as claimed in par [12](a) to (g) above, which matters touched their personal lives directly over and above the treatment they suffered in general with all members of the Mandaean community.
61 The RRT has accepted the account given by the applicant and his wife of the events which occurred on 4 February 2001. However, what the RRT failed to do, as it was required to do, was to ask why the police reacted in the way which they did and why the male applicant was threatened as he was by the alleged burglar, in company with a member of the Sepah an official body, and to consider the nature of the demands made at that time. The RRT was also required to consider how this event, with others, impacted on the treatment of the applicants, that impact being cumulative with the other events which they claimed impacted adversely on their lives by reason of their religion and their membership of the Mandaean community.
62 Although the RRT rejected the applicants' claim that the events of 18 February 2001 constituted an attempt to set him up with imputed political opinions contrary to the government and the Islamic authority as far-fetched and thus did not occur, it did not deal with the wife's claim to being physically assaulted and threatened on that night by police officers in front of her children, with ongoing emotional consequences to them. Nor did the RRT deal with the particular claims of the wife as reproduced in par [12] above. For example, the statement:
`The applicant wife claimed that after the birth of her second child she was not treated appropriately at the hospital. Whatever complaints she may have about her treatment at hospital the Tribunal finds that such problems do not amount to serious harm amounting to persecution.'
does not adequately address the claim that the wife was refused medical services by nursing staff at a hospital when her second daughter was born because she was Mandaean and in the view of the Muslim hospital staff, dirty and defiled (see par [12](d) above).
63 Finally, there were the claims of the children, as articulated by their parents and corroborated by the weight of material available to the RRT, including the country information report upon which it relied. The claim made was that it was the official policy of the Iranian government to force children to study Islam at school and to be denied access to further education and employment opportunities unless the children abandoned their Mandaean religion and embraced the Islamic faith. There was evidence that the policy was implemented in a way that denigrated and scared young children and discouraged or hindered them in the obtaining of a school education in contradistinction to that which was made available to Muslim children. To suggest, as the RRT did, that distress caused to a child by a teacher on account of a child's religious beliefs as an incident of governmental educational policy was a matter `to be dealt with by parents and does not indicate to the Tribunal that the situation at school for young Sabeans is so bad as to be considered persecutory', is to fail totally to understand the nature of the claim advanced, or to consider it in the manner required by the Act and the authorities to which I have referred earlier in these reasons.