WAEH of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 364 (22 November 2002)

Last Updated: 22 November 2002

FEDERAL COURT OF AUSTRALIA

WAEH of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 364

Migration Act 1958 (Cth) ss 424, 424A, 427, 430(1), 476(1)(a), (b) and (c), 476(3)(e)

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 considered

Kulwant Singh v Minister for Immigration & Ethnic Affairs (North J, 21 November 1996, unreported) referred to

Awan v Minister for Immigration & Multicultural Affairs [2001] FCA 1036 referred to

Marjeed v Minister for Immigration & Multicultural Affairs [2000] FCA 470 referred to

Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 referred to

Paramananthan v Minister for Immigration & Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28 referred to

Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 referred to

Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 discussed

Yusuf v Minister for Immigration & Multicultural Affairs [1999] 58 ALD 470 referred to

Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 27 referred to

APPELLANT WAEH OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W28 of 2002

WILCOX, RD NICHOLSON and DOWNES JJ

22 NOVEMBER 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W28 of 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT WAEH OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WILCOX, RD NICHOLSON and DOWNES JJ
DATE OF ORDER:	22 NOVEMBER 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W28 of 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT WAEH OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WILCOX, RD NICHOLSON and DOWNES JJ
DATE:	22 NOVEMBER 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:

1 The appellant appeals from the decision of Carr J given on 11 January 2002 whereby he dismissed the appellant's application for judicial review of an adverse decision of the Refugee Review Tribunal ("the Tribunal") made on 31 May 2001. The Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the appellant. The application for that visa had been lodged on 28 January 2001 and so fell for determination pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act") as they stood at that time and prior to amendment with effect from 2 October 2001.

Appellant's claims

2 The appellant claimed fear of persecution in Yemen for reasons of his political opinion. The appellant's case identified several factors as the source of this claimed fear of persecution. The first was his father's history. The second was the appellant's mid to high level membership of an opposition party called "League of the Children of Yemen" ("the League"). The third was an argument with a security official occurring in 1995 as a result of which he was arrested and beaten and detained for two months. The fourth was visits to a League member in Egypt as a result of which he had been harassed upon return to Yemen. The fifth was his having fled Yemen on a false passport in October 2000.

Tribunal reasoning

3 In its reasons the Tribunal accepted that the appellant was a Yemeni national. It concluded he did not face a real chance of persecution owing to his father's history or connections, either real or perceived. It accepted that the appellant was detained for two months after the confrontation with the officer in 1995 but was satisfied the incident had nothing to do with politics. On the basis that the appellant was a member of the League, the Tribunal was not satisfied such membership of it or its affiliates attracted any kind of crackdown or other mistreatment from the Yemeni authorities. In relation to the appellant's visits to Egypt, it found he went there to visit his mother and for no other reason. It did not accept he used a false passport to depart Yemen the second time and found he had departed legally on a genuine passport. Accordingly, it was not satisfied the appellant faced a real chance of Convention-related persecution in Yemen.

Reasoning of primary judge

4 Before the primary judge three grounds of review were relied upon. The first was based upon s 476(1)(a) of the Act and contended the Tribunal had ignored material as to whether the appellant had a well-founded fear of persecution by reason of being a member of a particular social group or having a political opinion or being imputed with a political opinion. The argument as put was that the relevant evidence (being that from Mr Ahmed Ibrahim), although read by the Tribunal, was evidence in relation to which the Tribunal had failed to give consideration to matters particularised so that there was jurisdictional error within the principles explained in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323. In association with this it was submitted there was no evidence which competed with Mr Ibrahim's evidence. The primary judge found to the contrary, referring to the competing evidence. He found the Tribunal gave consideration to Mr Ibrahim's evidence and in fact relied upon it to some extent. There was, therefore, no jurisdictional error or any other reviewable error.

5 The second ground considered by the primary judge was that if the Tribunal had not ignored but had instead rejected Mr Ibrahim's evidence it ought not to have done so without having considered whether to exercise its powers to obtain further information concerning his evidence. This was said to give rise to error pursuant to s 476(1)(a) and also (b) and (c) of the Act. The error was said to be a failure by the Tribunal to exercise its powers under s 424 or 427 of the Act. His Honour preferred authorities to the effect that although at common law there was a duty to consider whether to exercise such a discretionary power, no such duty was prescribed by the Act or by the Regulations for the purposes of s 476(1)(a): Kulwant Singh v Minister for Immigration & Ethnic Affairs (North J, 21 November 1996, unreported); Awan v Minister for Immigration & Multicultural Affairs [2001] FCA 1036; Marjeed v Minister for Immigration & Multicultural Affairs [2000] FCA 470 at [21] - [22] and Yusuf. It was unnecessary for him to definitively choose between that authority and a decision in Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679. This was because he accepted a submission for the respondent that the Tribunal had made a clear finding that even if the appellant was a leader in the League, he did not have a well-founded fear of persecution.

6 The third ground of appeal asserted that procedures set out in s 424A of the Act were not followed by the Tribunal, again placing reliance upon s 476(1)(a) of the Act. In relation to this submission his Honour accepted a submission for the respondent that the information relied upon to support this ground was not the reason or part of the reasons for the Tribunal affirming the decision under review or alternatively it fell within an exception to the cited sections.

7 Accordingly, he dismissed the application for review.

Grounds of appeal

8 In the appellant's notice of appeal he repeated the ground which was before the primary judge concerning the evidence of Mr Ahmed Ibrahim, claiming that the way it was dealt with created reviewable error under s 476(1)(a) or (b) and (c). At the hearing the appellant obtained the leave of the Court to add a second ground which, in effect, restored for hearing on the appeal the second of the grounds which had been before the primary judge. As recast for the appeal, that ground contends that the primary judge erred in holding that the Tribunal was not obliged to consider whether to exercise its power pursuant to s 424 of the Act in relation to the evidence of Mr Ibrahim and ought to have held that the Tribunal should have considered whether to exercise such powers, its failure to do so constituting a reviewable error pursuant to s 476(1) of the Act. In the course of argument, however, this ground was further refined so that it was put in terms of a failure to take a relevant consideration into account in the exercise of its power. The relevant consideration was said to be whether the Tribunal should have exercised its power.

Failure to properly address evidence of Mr Ibrahim

9 The first ground of appeal as expressed in the notice of appeal contends that the error of the Tribunal arose from the fact that it "ignored" material, namely the evidence of Mr Ibrahim. However, on the appeal, as previously on the argument before the primary judge, counsel for the appellant acknowledged that the Tribunal must have read the letter from Mr Ibrahim. The argument therefore was not addressed on the basis the Tribunal had ignored the evidence but rather that it had not "grappled" with the significance of that evidence.

10 This was put on two interrelated bases. The first was comparison of references in the Tribunal's reasons with the evidence of Mr Ibrahim showed the extent to which Mr Ibrahim's evidence had not been addressed. That was tabulated on behalf of the appellant as follows:

"

No.	Tribunal references	Ibrahim's evidence
1.	The appellant's father remains at large at home. This fact is confirmed by both the applicant and his witnesses	Ibrahim gave no evidence about these matters
2.	One of the appellant's witnesses states that the father derived a small amount of income from writing for an opposition newspaper	This does not come from Ibrahim - his evidence was to the contrary - "his father is prohibited from write (sic) any thing in the news papers"
3.	There is no evidence of actual persecution of his father	Ibrahim's evidence is that the appellant's father: * is a target of the government; * is under suspicion; * it is extremely unsafe and dangerous for him to be in Yemen; * is persecuted by Yemen's undercover police
4.	The witness gave evidence about many arrests of another Alsaqaf to whom the appellant did not refer	Ibrahim referred to Abdulaziz Al Saqaf who was arrested many times
5.	The witness claimed to know the appellant's father	Ibrahim did not say that he knows the appellant's father
6.	No part of the witnesses' evidence satisfies the Tribunal that he appellant's father had been subjected to serious harassment	see Ibrahim's evidence set out at 2 and 3 of this table
7.	There is no factual basis on which the Tribunal could accept that the appellant would face persecution for association with the League, not even in the cumulation with perceptions about his name or his father's profile	see Ibrahim's evidence set out at 2 and 3 of this table.

"

11 The second interrelated aspect is that Mr Ibrahim's evidence was available to the Tribunal only in written form; the Tribunal did not call him to give evidence orally and so did not have the opportunity to test the foundations of his knowledge as expressed in his written evidence and to fully test his credibility. This, it is said, occurred in a situation where his evidence was a reasonably rare example of potentially corroborating evidence. Additionally, it was potentially more specific than anything in the country information that was then before the Tribunal. (We were told on the hearing of the appeal and it was not in dispute that the step taken by the Tribunal to receive Mr Ibrahim's evidence in writing had come about in circumstances designed to accommodate the appellant, who had been distressed).

12 Counsel for the appellant, appearing pro bono publico, relied in support of these contentions on dicta in Paramananthan v Minister for Immigration & Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28 and particularly the passage at 64 in the judgment of Merkel J where he stated:

"Closely related to that duty arising under s 420 in the duty of a decision-maker or tribunal to give the questions before it for its determination "proper, genuine and realistic consideration upon the merits" see Khan v Minister for Immigration & Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J; Hindi v Minister for Immigration & Ethnic Affairs (1988) 20 FCR 1 at 12 - 15 per Sheppard J; Broussard v Minister for Immigration, Local Government & Ethnic Affairs (1989) FCR 472 at 482-483 per Gummow J; Surinakova v Minister for Immigration, Local Government & Ethnic Affairs [1991] FCA 596; (1991) 33 FCR 87 at 86 per Hill J; Mocan v Refugee Review Tribunal (1996) 42 ALD 241 at 245 per Merkel J"

See also Wilcox J at 40 and Lindgren J at 41. Reliance was also placed on Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 particularly at 292 where it was said by Wilcox and Madgwick JJ:

"It follows that all of the substantial claims, and information in support of them, put forward by an applicant must be considered. In the course of doing so, the RRT must also, of course, bear in mind whether it should exercise any of its impressive ancillary powers to supplement the information put before it by either the Department or the applicant. In this case, the RRT did not consider all the available information. This constitutes, in our opinion, an "error of law being an error involving an incorrect interpretation of the applicable law" within the meaning of s 476(1)(e). It could only be by virtue of an incorrect interpretation of the Act as to the RRT's duties that the RRT member could have considered it unnecessary to consider the applicant's claims, and the available information, more thoroughly than he did"

13 These submissions were made with an acknowledgment from counsel for the appellant that in Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 the Full Court (Heerey, Goldberg and Weinberg JJ) had disapproved the use of the formula "proper, genuine and realistic consideration". The Court said at par [78]:

"Nonetheless, it seems to us that there is some scope, albeit limited, for the argument that the Tribunal may, in a particular case, have failed to "review" the decision of the Minister. In other words, although we consider the use of the formula "proper, genuine and realistic consideration" to be an unsuitable method of expressing the circumstances in which that contention can be maintained, we accept that there may be some cases where it can properly be said that the Tribunal has not in truth "considered" the application for a visa at all."

The Court continued:

"It is often dangerous to seek to elucidate a principle by the use of examples, particularly when they are far removed from the facts before the Court. However, were the Tribunal to misconceive the nature of its statutory obligation, as for example by mistakenly believing that it was engaged in appellate review of the Minister's decision (rather than a rehearing de novo), it would be difficult to avoid the conclusion that it had failed to "review" the decision, in accordance with the requirements of the Act. Similarly, were the Tribunal to address the wrong question, rather than the question properly before it, there would be a constructive failure to exercise jurisdiction. Again, speaking hypothetically, were the Tribunal merely to pay lip service to its task, as for example by determining an application without reading the material filed before it, it would be difficult to conclude that it had "considered" the application."

14 In response to these submissions counsel for the respondent drew attention to the finding of the Tribunal where it said:

"The evidence before it leaves the Tribunal satisfied that membership of the League or of its affiliates is not attracting any kind of crackdown or other mistreatment from the Yemeni authorities. The Tribunal is satisfied that even if he were a member or, as he claims, some kind of leader of the League there is no factual basis on which it could accept that he would face persecution for such association, not even in cumulation with perceptions about his name or his father's name."

It was submitted that finding precluded the evidence of Mr Ibrahim having any materiality.

15 In our view that is correct. Nevertheless, it does not detract from the fact that the evidence of Mr Ibrahim was dealt with in an unusual way and in a way which had great potential to be unsatisfactory. While it is the case, as pressed for the respondent, that Mr Ibrahim's evidence did not particularise the matters it addressed, its high potential to be corroborative made it desirable that the Tribunal consider it in the normal way rather than in writing. Adoption of the more usual course could have enabled supplementation of generalised evidence by particularised circumstances or, failing that, would have better exposed the foundations of Mr Ibrahim's knowledge.

16 There are two additional reasons why the appellant's contentions cannot be accepted despite the undesirability in principle of the procedure which was followed. The first is that even if it were established that the Tribunal had not "grappled" with Mr Ibrahim's evidence, those proven circumstances would not activate any of the permitted grounds of review under s 476(1) of the Act as it stood relevantly to the appellant's application. On this point the Full Court in Anthonypillai said, with reference to the paragraph of its reason quoted immediately above:

"These examples are admittedly extreme. However, they serve to illustrate the principle. Where an applicant for review in this Court contends that there has been a failure on the part of the Tribunal to perform its statutory duty, that submission must be shown to fall within an existing ground of review contained in s 476(1). A failure of that type may well fall within the ambit of s 476(1)(e). The first two of the examples set out above would seem to do so. The third example is more problematic, though it might be said that the obligation which s 54 of the Act imposes upon the Minister "to have regard to all of the information in the application" is relevantly a "procedure required by the Act to be observed in connection with the making of the decision" for the purpose of s 476(1)(a). It should be remembered that a constructive failure to exercise jurisdiction which does not fall within any of the grounds for review contained within s 476(1) may, nonetheless, give rise to a claim for relief in the High Court. It will not, however, form the basis for review of any decision in this Court."

It is the third example which is the nearest to the present case. Since Anthonypillai, however, the High Court has decided in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 that a failure to make a finding of fact on a material question under s 430(1) of the Act is not a failure to observe a procedure required by the Act to be observed in connection with the making of a decision so as to invoke s 476(1)(a). At 351-2 McHugh, Gummow and Hayne JJ said:

"...there is no reason to give either par (b) or (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs. 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."(emphasis added)

Their Honours continued:

"If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(c) made out."

It will be observed that both the High Court in Yusuf and the Full Court in Anthonypillai considered the instance of a tribunal "ignoring" material. On the appellant's case, that is not this case. Nothing has been put to us on behalf of the appellant to persuade us the principles applicable to the ignoring of evidence should either be applied in the present case or that there is any foundation upon which the principles extend to cover the present case.

17 Further, the appellant would still face the difficulty of establishing what it was that the Tribunal did not come to grips with, given that he accepted the Tribunal had read the letter of Mr Ibrahim. In those circumstances application of the grounds of review brings the Court perilously close to engaging in merits review by re-evaluating what it was that the Tribunal did with the evidence before it. This is so even where, as here, the only finding of the Tribunal which accords with the evidence of Mr Ibrahim is that set out in item 4 of the tabulation above.

18 For these reasons we consider that the primary judge was not in error of law in the conclusion which he reached on the similar ground before him, although pressed in slightly varying terms and that no error of law by the Tribunal is established by this ground.

Failure to consider exercise of powers pursuant to s 424 of the Act

19 Section 424 provides powers to the Tribunal by which it may seek additional information. Before the primary judge a similar ground was argued also with reference to s 427 which gives to a tribunal powers to summon or require evidence. The second ground of appeal for which leave was given is expressed only with reference to s 424.

20 Prior authorities in relation to the powers under s 424 were considered by the primary judge. He stated that had it have been necessary he would have followed the line of authority commencing with Kulwant Singh to the effect that the section is permissive and does not require the power to be exercised. That line of authority, as he pointed out, was contrary to the decision of Madgwick J at first instance in Al Shamry where his Honour held that it could be inferred from the silence of a tribunal in relation to the issue of why investigative avenues had not been pursued that it gave no consideration to the question whether any such clarificatory exercise of its information-gathering powers was necessary and that, in the circumstances, there was a breach of the Tribunal's obligations under the Act. The primary judge considered it was unnecessary for him in the present matter to form a definite view on this issue. He considered the Tribunal's clear finding that even if the appellant was a leader in the League, he did not have a well-founded fear of persecution, was conclusive so that the Tribunal had not been obliged to consider whether to exercise the investigative powers conferred on it by either ss 424 or 427.

21 Counsel for the appellant argued that the authorities referred to by his Honour were ones in which the decisions had been made as to whether the failure to consider gave rise to a procedural breach pursuant to s 476(1)(a) of the Act. The issue was further addressed in that light in Yusuf v Minister for Immigration & Multicultural Affairs [1999] 58 ALD 470 and in Marjeed. Here, however, the argument is based on failure to consider a relevant consideration namely, whether the Tribunal should exercise such powers.

22 Our views accord with submissions on behalf of the respondent on this ground which must be accepted for the following reasons. The first is that the statute does not impose an implied obligation to consider the exercise of the power. That much is common ground and it is significant. The second is that the issue relied upon in the ground is not a relevant consideration: Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 27 at 39 per Mason J. A relevant consideration arises where an implication arises to that effect from the subject matter, scope and purpose of the Act. It is just that obligation which it is common ground does not exist under s 424. The third is that s 476(3)(e) provides that a failure to take a relevant consideration into account in the exercise of a power is not included in the reference to an improper exercise of power in s 476(1)(d).

23 We also agree with the respondent that there is no evidence from which it could be established or inferred that the Tribunal gave no consideration to whether it ought to take further information from Mr Ibrahim before dealing with his evidence. Additionally, we agree with the respondent that there is nothing circular in the reasoning of the Tribunal on this issue.

24 For these reasons we accordingly consider that the primary judge was not in error of law on the appeal made in respect of the second ground nor was the Tribunal in error of law in the way claimed in the ground.

Conclusion

25 For these reasons we consider the appeal should be dismissed with costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, RD Nicholson and Downes.

Associate:

Dated: 22 November 2002

Counsel for the Appellant:	Mr M Howard appeared pro bono
Counsel for the Respondent:	Mr P Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 November 2002
Date of Judgment:	22 November 2002