NACP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 499 (23 May 2003)

Last Updated: 29 May 2003

FEDERAL COURT OF AUSTRALIA

NACP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 499

MIGRATION - protection visa - judicial review - Minister's delegate refused to issue protection visa - decision affirmed by Refugee Review Tribunal - whether the Refugee Review Tribunal on the face of the decision only considering claims made by the applicant at the hearing and failing to refer in any way to different claims made previously in submissions by the applicant constitutes jurisdictional error - whether the applicant could be taken to resile from previous submission made in writing to the Refugee Review Tribunal where he did not refer to those submissions at the hearing before the Refugee Review Tribunal - whether Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24 overrules NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228; (2002) 193 ALR 449 to the extent that jurisdictional errors other than a denial of natural justice will cause a decision of the Refugee Review Tribunal to be a nullity.

Judiciary Act 1903 (Cth) - s 39B

Migration Act 1958 (Cth) - s 474

Migration Regulations 1994 (Cth)

Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 - considered

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 - referred to

Koulaxazov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 75 - referred to

Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 144 - not followed

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

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228; (2002) 193 ALR 449 - distinguished

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24 - applied

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 195 ALR 1 - considered

Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 24

NACP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 135 OF 2003

HILL J

23 MAY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N135 OF 2003

APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NACP APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	23 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The decision of the Refugee Review Tribunal is set aside, and the matter is remitted to a Tribunal differently constituted to be determined in accordance with law.

3. The respondent Minister should pay the costs of an interpreter paid, on behalf of the appellant, by the Court. The amount should be paid directly to the Court in satisfaction of this order.

4. The orders of the Federal Magistrate be set aside.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N135 OF 2003

APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NACP APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	23 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant appeals from a decision of a Federal Magistrate dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal, acting on an application for review of a decision of a delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), affirmed the delegate's decision not to grant to the appellant a protection visa.

2 The issue which arises on the appeal is unusual. It arises in large part, I suspect, from the fact that the appellant has at no time been represented.

3 The appellant is a national of India. He is a Muslim. He arrived in Australia on 14 March 2001 and the next month applied for a protection (class XA) visa. In his application for a visa he wrote as follows:

"After graduation and obtaining diploma in travel and tourism, I went to Mumbai for getting a job and I had worked with three different agencies there. When I was working as personal assistant to MD of M/S Eastwest Travel and Trade Links (P) Ltd he was shot dead by a underworld gang lead by Chota Rajan. As I am personaly conected to our MD, Mr Takitudheen Wahid later on for getting the personal details of our MD and other business secrets, the same gang targetted me to their hitlist and I have three major injuries from them and left Mumbai in 1998 and travelled different parts of India seeking jobs, where also I faced the problem with the gang who were having support from ruling BJP government and Hindu organisations as I am a Muslim. Then I reached in Kerala and joined another organisation. There also I faced problems different times and my family has gone to their village and I came to Australia for getting protected.

... I fear that I will lose my life. As the group targetted me is very strong and they need the details of our previous MD, Mr Takitudheen Wahid. In previous attacks from them by lucky only I could save my life."

4 The document continued to say that the ruling party in India, the BJP was giving support to the groups who were targeting him.

5 The appellant, apparently, did not attend the ordinary interview with the delegate of the Minister. The delegate rejected the application and the appellant sought review of that decision from the Tribunal.

6 The appellant lodged, together with his application for review, a letter dated 2 November 2001. The letter contains a five page description of the circumstances the appellant claims had arisen in Mumbai, relating to the death of Mr Wahid and what was said to have happened thereafter. It is unnecessary for present purposes to quote from that letter. It need only be said that the letter mentions that the appellant had become involved with a leading Muslim organisation in Mumbai involved in spiritual and cultural activities to the Muslim community and had become an active member of that organisation. It was his claim that, in part at least, this membership had been the reason why he had become a target for the VHP and Shivasena organisations.

7 It seems that the Tribunal notified the appellant that it was unable to make a decision favourable to the appellant on the papers. He was invited to attend a hearing which was scheduled for 2 September 2002 at 9.30 am. The appellant was asked to complete and return a Response for Hearing form, although it does not appear that the Tribunal received any such form, if indeed it was forwarded.

8 So far as I am able to ascertain from the reasons of the learned Magistrate, the appellant turned up at 9.15 am for the hearing. He was told that no member was available. The hearing however did commence at approximately 10.30 am. There was oral evidence for the appellant about this before the learned Magistrate but the transcript of that evidence was not available with the appeal papers.

9 I have listened to a tape of the proceedings before the Tribunal. The Tribunal member, after some questions concerning the appellant's name, arrival date in Australia etc asked the appellant why he believed he could not return to India. The appellant proceeded to narrate a claim which is summarised in the Tribunal's reasons for decision. It bears no relationship at all to the claim made in the application for the protection visa and repeated in greater detail in the letters to the Tribunal dated 2 November 2002. The claim made orally to the Tribunal is summarised by the Tribunal as follows:

"The Applicant states that he became embroiled in a property dispute. He lived in a compound of six properties. Five were held by Muslims and one by a Hindu. The five Muslims wished to put in an access road. The Hindu refused to contribute. The body corporate of which the Applicant was secretary had the road built, but also built a fence to deny the Hindu access to it.

The Hindu had the fence pushed over damaging the Applicant's car. The police were called but did not assist. Later a court ordered the wall rebuilt. The Hindu harassed the Applicant and his family. Threats were made.

The Applicant's family moved back to the Applicant's wife's family village. They remain there. The Applicant came to Australia.

He states that if he returns to India he will be harmed by this Hindu or his communal allies. The Applicant's home is now vacant, there has been so much harassment he has been unable to rent it out.

It was put to the Applicant that this problem seemed to be a local one. He was asked if he could not safely relocate within India.

The Applicant states that it would be hard to get a job, or to settle at a job, the Hindus with who he as (sic) trouble may seek him out.

The Applicant states that he also had trouble with a Hindu at his work. The Applicant is a travel agent. He discovered financial malpractice on the part of on eof his colleagues. This man is a Hindu and told the Applicant that he was paying money for commission. The Applicant discovered that this commission was paid to a BJP official. The co-worker told the Applicant that if he disclosed the payment he would be harmed."

10 The Tribunal considered the appellant's claim as outlined orally. It accepted that the appellant had been involved with disputes with a Hindu co-worker and neighbour and that he had been harassed and threatened. However, the Tribunal, in what may be described as very brief reasons, took the view that the problem the appellant had and which he had referred to in his oral evidence, was purely local and effectively it would go away if he relocated within India. Indeed, the Tribunal member had said as much to the appellant during the oral hearing. No reference was made in the reasons of the Tribunal to the case on which the appellant relied in his visa application as expanded upon in the letter of 2 November 2002.

11 The appellant then sought judicial review of the Tribunal's decision. There were no grounds shown in the application for judicial review. An order was made by this Court referring the application to the Federal Magistrates Court. At the hearing before the Magistrate a solicitor, who had notified his appearance for the appellant, sought and was granted leave to withdraw. The appellant was thus unrepresented before the Magistrate.

12 So far as appears from the reasons for decision of the learned Magistrate, the appellant claimed that the Tribunal had not conducted a review, that it failed to accord to him substantial justice and that it denied him natural justice. The Magistrate in his reasons mentions that the appellant expressed concern at the hearing that the presiding member did not seem to be familiar with his case and did not ask him questions about material that he had presented. I am not convinced that the learned Magistrate quite understood what the appellant's case before him was. This is not surprising given that the appellant was unrepresented.

13 It clear that the appellant was complaining based on the existence of two letters advising of the hearing (one that the hearing was to take place at 9.30 am and the other that it was to take place at 10.30 am) that the Tribunal had in some way or other not properly considered his case. This was a matter which the learned Magistrate correctly rejected. But I think it is likely that the appellant, perhaps in inadequate English (although it must be said his English, although heavily accented, is not so bad as to be incapable of being understood), was seeking to make, before the Magistrate, the case made before me on the appeal.

14 The Magistrate says in his reasons:

"It is apparent from reading the decision and reasons of the RRT...that the applicant changed significantly the facts which he claimed as supporting his fear of persecution at the hearing before the RRT. Claims that he made orally before the RRT bore little or no relationship to the claims that he had previously put in writing. In the circumstances, it is understandable that the presiding member may have been bemused and may have been uncertain as to what questions to put to the applicant. The reasons for the decision of the presiding member are certainly brief. However, the presiding member does go through the claims that he says were put him in evidence. I have nothing before me to persuade me that the treatment of those claims by the presiding member was inadequate or incomplete."

15 The Magistrate then proceeded to consider the Tribunal's finding on relocation and concluded, no doubt correctly, that if the Tribunal was satisfied that relocation was reasonably possible then an applicant for a visa was not a person to whom Australia owed protection obligations and that it would be unnecessary for the Tribunal to make ultimate findings on whether the person in question otherwise satisfied the definition of "refugee" in the Convention relating to the Status of Refugees, done at Geneva on 28 July 1951, as affected by the Protocol relating to the Status of Refugees, done at New York on 31 January 1967 ("the Convention").

16 It might be noted that the appellant did not seek to tender in evidence before the Magistrate the tape of the proceeding before the Tribunal member, although he clearly had a copy of the tape. In the interests of justice I gave leave to the appellant to tender the tape on the appeal and listened to it. I did so largely because the appellant had been unrepresented and because it seemed that the case he wished to put to the Magistrate may not have been clearly understood by the learned Magistrate. I did so also for reasons that I will later explain.

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.

20 Likewise, if leave were necessary to amend the grounds of appeal from the Magistrate's decision (and again since no grounds of appeal seem to have been formulated, it is not clear that there is a need to amend anything), I would grant that leave.

21 Ordinarily the question of what the case was that was put before a Tribunal will be clear on its face. That is not the case here. The Tribunal's decision makes no mention at all of the case that, at least until the hearing constituted the appellant's claim that he was a "refugee" to whom Australia owed protection obligations. Strangely the Tribunal makes no reference either to the fact that the case that was dealt with in oral evidence and in the Tribunal's reasons was completely different from the case that had been put by the appellant in writing. It is not difficult to conclude from that omission that the Tribunal, for whatever reason, was unaware of the written claim as it appeared in the application for visa and in the letter accompanying the application for review. With respect to the Magistrate, it is likely that, had the Tribunal been aware of the fact that there were two different claims, it would have made at least some comment about that. Indeed it is not unusual that when an appellant changes the story he or she relies upon the Tribunal concludes, unless there is some explanation, that the appellant should not be believed. In this case, however as I have already noted, the Tribunal made no comment on the matter, either in the course of the oral hearing or in its reasons. I think the inference that should be drawn from this is that the Tribunal was simply unaware of the written case and concentrated exclusively on the claim the appellant made orally to 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] FCAFC 228; (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] HCA 2; (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 It follows from my answer to Question 1 that this question must be answered in the affirmative. 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] HCA 53; (1945) 70 CLR 598 and concluding with Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (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] FCAFC 228; (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] HCA 1; (2003) 195 ALR 1. That case concerned an application for relief on the basis that there was either a constructive failure to exercise jurisdiction or a denial of procedural fairness. The former claim to relief was based upon what was said to be a failure on the part of the Tribunal to consider a material fact, namely that the applicant's spouse held a temporary protection visa and was an applicant for a permanent protection visa. The majority judgment was delivered by Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ. Gaudron and Kirby JJ delivered a separate joint judgment. The majority of the Court held that in the circumstances of the case there was no constructive failure to exercise jurisdiction. The alleged constructive failure was claimed to be the failure of the Tribunal to consider the application before it upon the ground that the applicant was a member of a family unit one of whose members held a protection visa. However, the Tribunal's failure to consider this ground arose because it had not been asked to do so. Accordingly 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 of the 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] HCA 30; (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 in Craig 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] HCA 58; (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 [1968] UKHL 6; [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] HCA 33; (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] HCA 47; (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] HCA 22; (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] FCAFC 228; (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. The third case, Ratumaiwai v Minister for Immigration and Multicultural and Indigenous Affairs, was a decision on appeal from me. I had held that there was no jurisdictional error. The decision was affirmed, but has no relevance to the present case. The fourth case was Turcan v Minister for Immigration and Multicultural and Indigenous Affairs. That case involved the cancellation of a visa. The alleged error involved a mistake of fact or law. It can therefore be distinguished. Finally there is Minister for Immigration and Multicultural and Indigenous Affairs v Wang which involved an error of law in a matter that was a precondition to a valid cancellation. In this case the majority of the Court in fact held the case to fall outside s 474 but again it can be distinguished from the present case.

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.

Conclusion

50 In my view the present is a case where the Tribunal has failed to exercise its jurisdiction and in circumstances where the decision of the Tribunal is a nullity. Accordingly the decision of the Tribunal is not one which falls within s 474 for the reasons given in Plaintiff S157/2002. I would accordingly set aside the decision of the Tribunal and remit the matter to a Tribunal differently constituted to be determined in accordance with law. The Minister should pay the costs of an interpreter paid, on behalf of the appellant by the Court. The amount should be paid directly to the Court in satisfaction of this order.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill

Associate:

Dated: 23 May 2003

Counsel for the Applicant:	The appellant appeared in person
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	8 April 2003
Date of Judgment:	23 May 2003