Minister for Immigration and Multicultural Affairs v Yusuf

[2001] HCA 30
(2001) 62 ALD 225
(2001) 75 ALJR 1105
(2001) 180 ALR 1
(2001) 206 CLR 323

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(Decision by: Gaudron J)

Minister for Immigration and Multicultural Affairs
vYusuf

Court:

Judges: Gleeson CJ

Gaudron JMcHugh J
Gummow J
Kirby J
Hayne J
Callinan J

Legislative References:
-

Case References:
-

Hearing date:
Judgment date: 31 May 2001

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Decision by:
Gaudron J

[11] These four proceedings, being two appeals and two applications for relief under s75(v) of the Constitution, were heard together. The proceedings arise out of separate applications for protection visas by Ms Yusuf, a citizen of Somalia, and Mr Israelian, an Armenian. Both applications were rejected by a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister"). The decisions were separately reviewed and affirmed by the Refugee Review Tribunal ("the Tribunal") ^[1] . Ms Yusuf and Mr Israelian separately sought judicial review of the Tribunal's decisions in the Federal Court of Australia pursuant to Pt8 of the Migration Act 1958 (Cth) ("the Act").

[12] At first instance, both applications for judicial review were successful and the decisions of the Tribunal were set aside by the Federal Court. It was separately held in each case that the Tribunal failed to comply with procedures required by the Act in that it failed to set out findings on material questions of fact as required by s430(1)(c) of the Act ^[2] . From each of those decisions, the Minister appealed unsuccessfully to the Full Federal Court. The Minister now appeals to this Court from the decisions of the Full Court.

[13] The Minister's appeals to this Court are separately resisted by Ms Yusuf and Mr Israelian on the ground that the decisions of the Full Court are correct. Additionally, it is contended in each appeal that the decision of the Full Court should be affirmed on grounds other than the failure of the Tribunal to set out findings in accordance with s430(1)(c) of the Act. And because Pt8 of the Act limits the grounds upon which the Federal Court may review a decision of the Tribunal, Ms Yusuf and Mr Israelian each seek relief under s75(v) of the Constitution in the event that the Minister's appeals are successful ^[3] .

Relevant legislative provisions

[14] Pt7 of the Act provides with respect to the review by the Tribunal of certain decisions made under the Act by the Minister or by his or her delegate ^[4] , including decisions with respect to the refusal to grant a protection visa ^[5] . Division 4 of Pt7 provides, as its heading indicates, with respect to the conduct of a review. As the provisions of Pt7 stood at the relevant time, they specified what material might be given to the Tribunal ^[6] and how the Tribunal was to conduct its hearings ^[7] . They also set out the Tribunal's powers ^[8] and the rights of applicants ^[9] in relation to Tribunal hearings.

[15] Division 5 of Pt7 of the Act is concerned with decisions of the Tribunal. S430, which is in Div 5, provides in subs(1) as follows:

" Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)

sets out the decision of the Tribunal on the review; and

(b)

sets out the reasons for the decision; and

(c)

sets out the findings on any material questions of fact; and

(d)

refers to the evidence or any other material on which the findings of fact were based."

[16] Pt8 of the Act provides with respect to the review of certain decisions by the Federal Court, including decisions of the Tribunal ^[10] . The grounds upon which a decision may be reviewed are set out in s476(1) which provides that, subject to subs(2), which is not presently relevant:

"... application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)

that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

(b)

that the person who purported to make the decision did not have jurisdiction to make the decision;

(c)

that the decision was not authorised by this Act or the regulations;

(d)

that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e)

that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

(f)

that the decision was induced or affected by fraud or by actual bias;

(g)

that there was no evidence or other material to justify the making of the decision."

[17] The grounds specified in s476(1)(d) and s476(1)(g) of the Act - improper exercise of power and want of evidence - are circumscribed, respectively, by subs(3) and subs(4) of that section. It is necessary to refer only to subs(3) which provides:

" The reference in para(1)(d) to an improper exercise of a power is to be construed as being a reference to:

(a)

an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(b)

an exercise of a personal discretionary power at the direction or behest of another person; and

(c)

an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

but not as including a reference to:

(d)

taking an irrelevant consideration into account in the exercise of a power; or

(e)

failing to take a relevant consideration into account in the exercise of a power; or

(f)

an exercise of a discretionary power in bad faith; or

(g)

any other exercise of the power in such a way that represents an abuse of the power that is not covered by para(a) to para(c)."

Background facts and the Tribunal's decisions Ms Yusuf

[18] Ms Yusuf sought a protection visa on the basis that she was a refugee as defined in the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (together referred to as "the Convention") ^[11] . More particularly, she claimed she had a well-founded fear of persecution on the ground of race if returned to Somalia.

[19] In support of her claim that she was a refugee as defined in the Convention, Ms Yusuf gave an account of her home in Mogadishu being invaded and of her husband being attacked by members of another clan, the Hawiye. As a result, she claimed, her husband had to run away and she and her children were left behind. She also claimed that, on two later occasions, she was attacked by members of the Hawiye clan when she left her home to go shopping. On both occasions, she said, she was rescued by neighbours who were also members of the Hawiye clan.

[20] In a supplementary statement, Ms Yusuf claimed that her sister and three of her sister's children had been killed by members of the Hawiye. According to that statement, her sister's husband and one child survived and, in accordance with tradition, she was required to marry and, in fact, married her sister's husband.

[21] The Tribunal rejected Ms Yusuf's claims with respect to her sister and her sister's children but accepted that she had twice been attacked by members of the Hawiye clan. However, the Tribunal found that her clan membership was not the motive for those attacks. In so finding, the Tribunal noted that there was advice from the Department of Foreign Affairs and Trade that the Abaskul clan, of which Ms Yusuf was a member, was not targetted by the Hawiye. The Tribunal also noted that, on the occasions when she was attacked, Ms Yusuf had been rescued by members of the latter clan.

[22] No finding was made by the Tribunal with respect to Ms Yusuf's claim that her home had been attacked and her husband forced to run away. This notwithstanding, the Tribunal held that "neither [Ms Yusuf's] individual circumstances nor her membership of the Abaskul clan expose[d] her to a real chance of ... persecution" as required by the definition of "refugee" in the Convention. Accordingly, Ms Yusuf was not entitled to a protection visa ^[12] .

Mr Israelian

[23] Mr Israelian's application for a protection visa was based on the claim that he feared persecution if returned to Armenia. According to his application, that persecution would be the result of his failure to answer a call-up notice for military service. He said that he failed to answer the call-up notice because of his conscientious objection to all war and, also, because of his objection to being involved in the Nagorno-Karabakh conflict. Additionally, he did not respond to the call-up notice because, having married an Australian, he was then living in Australia and did not expect that he would have to return to Armenia.

[24] In his submissions to the Tribunal, Mr Israelian contended that he was a refugee as defined in the Convention because his persecution would stem from his political opinions which both favoured Communism and opposed the Nagorno-Karabakh conflict and, also, from his membership of a particular social group comprised of "deserters and/or draft evaders". In elaboration of that latter claim, Mr Israelian stated that he would be treated as a deserter, imprisoned and forced to serve at the front line. Moreover, he said that his failure to answer his call-up notice would result in his being denied a passport with the consequence that he would not be able to work or obtain accommodation in Armenia.

[25] The Tribunal found that Mr Israelian had "no genuine subjective fears [with respect to] his support of the Communist Party, other than his fears in respect to the war over [Nagorno-Karabakh]." It also found that he was not opposed to all war and that his opposition to the war over Nagorno-Karabakh was not based on "ethical, moral or political grounds" but on "a desire to avoid personal danger". The latter finding was made in a context in which there was material indicating that the United Nations High Commissioner for Refugees ("the High Commissioner") had issued an order to the effect that Armenian draft resisters should be given refugee status. Further, the Tribunal concluded that, even if Mr Israelian were a conscientious objector, "his punishment for avoiding his call-up notice would not be motivated by a Convention reason but would be the application of a law of common application".

[26] By reason of the findings set out above, the Tribunal concluded that Mr Israelian was not a refugee as defined in the Convention and, thus, not entitled to a protection visa.

The Federal Court decisions

[27] At first instance, it was held by the Federal Court (Finn J) that Ms Yusuf's claim that her home had been invaded and her husband forced to flee was a material question of fact upon which the Tribunal was required by s430(1)(c) of the Act to make findings in the written statement setting out its decision. Because it had not, it was held pursuant to s476(1)(a) that a procedure required by the Act in connection with the making of a decision had not been observed. Accordingly, the Tribunal's decision was set aside. As already mentioned, that decision was upheld by the Full Federal Court.

[28] In the case of Mr Israelian, it was held by the Federal Court (R D Nicholson J), at first instance, that his application for review should be allowed and the Tribunal's decision set aside because the Tribunal failed to consider whether "the International Community through the [High Commissioner] had condemned the military action in [Nagorno-Karabakh] as contrary to basic rules of human conduct and whether [in] all the circumstances of the matter, deserters and/or draft evaders in Armenia were a particular social group; that is defined, united or linked otherwise than by the fear of the allegedly persecutory law."

[29] Because of the Tribunal's failure to consider the matters set out above, it was held that "[its] decision [with respect to Mr Israelian] involved an error of law, being an error involving an incorrect interpretation of the applicable law." Further, it was held that that failure was a failure to set out findings on material questions of fact as required by s430(1)(c) of the Act and, therefore, a failure to observe procedures required by the Act. That latter holding was affirmed by the Full Court. The Full Court had no reason to consider and, in fact, did not consider whether the decision also involved an error of law.

S430 of the Act and procedures required by the Act

[30] At the relevant time, s430 of the Act was headed "Refugee Review Tribunal to record its decisions etc and to notify parties". Logically, the making of a decision and the recording of it are distinct steps. Were the ground of review allowed by s476(1)(a) expressed in terms of procedures to be observed in the making of a decision, there might, perhaps, be some scope for an argument that it does not extend to procedures to be observed in recording a decision. However, the phrase used in s476(1)(a) is "in connection with the making of the decision" - a phrase signifying a less precise connection than "in the making of the decision". Moreover, s430 is not concerned solely with the recording of a decision. In terms, it is also concerned with the "prepar[ation of] a written statement that ... sets out the decision of the Tribunal".

[31] Notwithstanding that the making of a decision and the recording of a decision are logically distinct steps, the making of a decision and the preparation of a written statement setting out that decision often constitute a single process. Given that that is so and given, also, that the expression used in s476(1)(a) is "in connection with the making of [a] decision", there is no basis for reading s476(1)(a) as not extending to the procedures required by s430 of the Act. However, that is not, of itself, determinative of the question raised by the Minister's appeals: there remains a question as to the nature and extent of the procedure required by s430(1)(c).

[32] The issue of substance presented by the Minister's appeals is whether, properly construed, s430(1)(c) of the Act requires the Tribunal to state its findings on what it considers to be material questions of fact or whether, as was contended for Ms Yusuf and Mr Israelian, it requires the Tribunal's written statement to conform to some objective standard to be ascertained by reference to the particular application and the material available to the Tribunal in relation to that application.

[33] Clearly enough, para(a) and para(b) of s430(1), which require the Tribunal to set out "the decision of the Tribunal" and "the reasons for [that] decision", refer, respectively, to the Tribunal's decision and the Tribunal's reasons for its decision. In that context and in the absence of any requirement that the Tribunal either identify the legal or factual issues presented by the application or specify the material before it, it is difficult to construe s430(1)(c) as obliging the Tribunal to do more than set out its findings on what it considers to be material questions of fact.

[34] Of more significance to the construction of s430(1)(c) of the Act is the consideration that, in recording its decision, the Tribunal can only set out the findings which it makes. Conversely, findings which are not made cannot be set out. Once that is accepted, s430(1)(c) must be construed as requiring the Tribunal only to set out its findings on what it considers material questions of fact.

[35] The corollary to the construction of s430(1)(c) of the Act set out above is that it is to be inferred from the absence of a reference to, or, a finding with respect to some particular matter that the Tribunal did not consider that matter to be material. As will later appear, there may be cases where that will indicate error of a kind that will ground review under s476(1) of the Act or, even, jurisdictional error which will ground relief under s75(v) of the Constitution. For the moment, however, it is sufficient to note that the failure of the Tribunal to make a finding with respect to a particular issue is not, of itself, a failure to observe procedures required by the Act. Thus, the Minister's appeals must succeed unless the orders of the Full Federal Court are to be upheld by reference to one or more of the grounds specified in the notices of contention filed on behalf of Ms Yusuf and Mr Israelian, respectively.

Failure to make findings may be reviewable or jurisdictional error

[36] The question whether the failure of the Tribunal to deal with some particular aspect of an applicant's claim reveals reviewable error for the purposes of s476 of the Act necessitates immediate reference to s476(3)(e). That paragraph limits the ground of review allowed to the Federal Court by s476(1)(d) - improper exercise of power - so that it does not extend to the failure of the Tribunal to take a relevant consideration into account. However, no other ground of review is limited in that way.

[37] As already indicated, if in its written statement setting out its decision, the Tribunal fails to refer to or fails to make findings with respect to a relevant matter, it is to be assumed, consistently with the clear directive in s430 of the Act, that the Tribunal has not regarded that question as material. And depending on the matter in issue and the context in which it arises, that may or may not disclose reviewable error. For example, the failure to make a finding on a particular matter raised by the applicant may, in some cases, reveal an error of law for the purposes of s476(1)(e) of the Act.

[38] Moreover, as McHugh, Gummow and Hayne JJ point out in their judgment, an error of law which will ground review by the Federal Court under s476(1)(e) of the Act may, in some cases, also have the consequence that there has been what is known in the jurisprudence relating to relief under s75(v) of the Constitution as "jurisdictional error". If so, the failure to make a finding on the matter in issue may have the result that the decision is reviewable by the Federal Court either on the ground that the Tribunal lacked jurisdiction (s476(1)(b)) or on the ground that its decision was not authorised by the Act (s476(1)(c)). Clearly, that will be so if the error is such that the Tribunal exceeds its jurisdiction.

[39] The terms of s476(1)(b) - "[no] jurisdiction to make the decision" - and s476(1)(c) - "the decision was not authorised by [the] Act" - direct attention to errors which lead the Tribunal to exceed its jurisdiction. However, as I pointed out in Abebe v Commonwealth, the notion of jurisdictional error for the purposes of relief under s75(v) of the Constitution "is not confined to situations in which a tribunal either lacks jurisdiction or exceeds its jurisdiction" but extends to situations in which it "wrongly den[ies] the existence of its jurisdiction or ... mistakenly place[s] limits on its functions or powers" ^[13] . And in that case, I indicated that error of that kind was reviewable under s75(v), although "not reviewable by the Federal Court in proceedings under Pt8 of the Act" ^[14] .

[40] The statement that errors involving the wrong denial of jurisdiction or the placing of limits on a tribunal's powers or functions are not reviewable under s476(1) of the Act requires qualification. That is because notions that have been developed in relation to the grant of mandamus and prohibition, whether by way of prerogative relief or pursuant to s75(v) of the Constitution, do not have precise equivalents in the scheme established by Pt8 of the Act or, indeed, in other statutory schemes providing for judicial review of administrative decisions.

[41] For the purposes of mandamus and prohibition, a tribunal is said to have failed to exercise its jurisdiction if it has wrongly denied the existence of its jurisdiction or mistakenly placed limits on its functions or powers. If the tribunal wrongly holds it has no jurisdiction or is not authorised to make a particular decision, there is said to be "an actual failure to exercise jurisdiction". On the other hand, there is said to be a "constructive failure to exercise jurisdiction" when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form ^[15] . A constructive failure to exercise jurisdiction may be disclosed by the tribunal taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account.

[42] Although the notion of constructive failure to exercise jurisdiction developed in relation to the grant of prerogative relief and, later, the grant of relief under s75(v) of the Constitution, it is one that has some bearing on statutory schemes for judicial review of administrative decisions of the kind set out in Pt8 of the Act. For example, it may be that the failure of the Tribunal to take a particular matter into account indicates that, in the circumstances, the Tribunal has misunderstood its duty or applied itself to the wrong question and has, on that account, failed to conduct a review as required by s414 of the Act ^[16] .

[43] The power of the Tribunal to affirm, vary or set aside a decision of the Minister or his or her delegate is a power which can only be exercised when it has conducted a review of the decision in question. So much follows from the direction in s414(1) that, if a valid application is made, the Tribunal "must review the decision". So, too, it is to be discerned from s430 which speaks of a "decision on a review". A decision made other than on review is not a decision authorised by the Act. So, too, a decision made other than on a review of the kind required by the Act is not a decision that is authorised by the Act.

[44] It follows from what has been written above that the failure of the Tribunal to make findings with respect to a particular matter may, at the same time, reveal failure to exercise jurisdiction, whether actual or constructive, and, also, failure to conduct a review as required by the Act. And the latter constitutes reviewable error for the purposes of s476(1)(b) and s476(1)(c) of the Act.

Notices of contention Ms Yusuf

[45] On behalf of Ms Yusuf, it was contended that the Minister's appeal should be dismissed and the Full Court decision upheld on the basis that, independently of s430, the Tribunal's failure to make any finding with respect to the claimed attack on her home constitutes reviewable error for the purposes of s476(1)(a), s476(1)(b), s476(1)(c), s476(1)(d) and/or s476(1)(e) of the Act.

[46] So far as concerns the contention that the Tribunal's decision is reviewable under s476(1)(a), it was put that there was a failure to conduct a review as required by s414 and, accordingly, a failure to observe procedures required by the Act. In my view, that contention must be rejected. The conduct of a review is no mere procedural requirement. It is the jurisdictional precondition to the exercise of the power to affirm, vary, or set aside the decision under review. If there was a failure to conduct a review as required by the Act, the resulting decision was not authorised by the Act and is reviewable under s476(1)(b) or s476(1)(c), but not on the ground that "procedures ... were not observed".

[47] Nor, in my view, can the decision of the Federal Court be upheld on the basis that the Tribunal's decision involves an error of law for the purposes of s476(1)(e) of the Act. No such error is revealed. All that is revealed is that the Tribunal failed to take a particular matter into account, albeit that that matter was one of considerable relevance to Ms Yusuf's claim that she feared persecution if returned to Somalia. And because the failure to take a relevant matter into account is excluded from the ground of review allowed to the Federal Court by s476(1)(d) - improper exercise of power - its decision cannot be upheld on that basis.

[48] It is necessary now to consider whether the decision of the Full Federal Court should be upheld on the basis either that the Tribunal did not have jurisdiction (s476(1)(b)) or that its decision was not authorised by the Act (s476(1)(c)). In this regard it is to be noted that, relevantly, the Tribunal's jurisdiction is to review the decision of the Minister or his or her delegate refusing a protection visa. Correspondingly, the Tribunal has a duty to review the decision in question, as is made clear by the direction in s414(1) of the Act that "the Tribunal must review the decision" if a valid application is made for review.

[49] Clearly, a decision can only be reviewed if regard is had to such of the material that was available to the primary decision-maker as might be decisive of the outcome of the application. Ms Yusuf's claim that her house had been invaded was, in my view, material of that kind.

[50] Ms Yusuf's claim that she had a well-founded fear of persecution was made by reference to events involving herself and her family which were capable of being found to constitute past persecution ^[17] . She claimed to be directly involved in three of those events. Any one of the events in which she claimed to be involved was capable of being regarded by the Tribunal as having given rise to a well-founded fear of persecution for reasons of race. To find that two only of those events were not racially motivated, was to leave unresolved an aspect of her claim which could have affected its outcome. More precisely, it was to leave an aspect of the delegate's decision unreviewed.

[51] The failure of the Tribunal to make findings with respect to Ms Yusuf's claim that her home was attacked by members of the Hawiye clan has the consequences that the Tribunal lacked jurisdiction to affirm the earlier decision of the Minister's delegate and, also, that its decision was not authorised by the Act.

Mr Israelian

[52] It was contended on behalf of Mr Israelian that the failure of the Tribunal to deal with his claim that he feared persecution by reason of his membership of a social group comprised of deserters and/or draft evaders reveals an error of law for the purposes of s476(1)(e) of the Act. It was further contended that the decision of the Tribunal was not authorised by the Act and, also, that it was made without jurisdiction.

[53] The contentions advanced on behalf of Mr Israelian were advanced solely by reference to the Tribunal's failure to deal with the question whether Mr Israelian was a member of a particular social group comprised of deserters and/or draft resisters. No argument was addressed to the material suggesting that the High Commissioner had condemned the military action in Nagorno-Karabakh, a matter that R D Nicholson J thought should have been considered by the Tribunal.

[54] Although it is not strictly necessary to deal with the issue, it may be noted that, in my view, the Tribunal's finding that Mr Israelian's opposition to military service was not based on "ethical, moral or political grounds" rendered any further question with respect to the Nagorno-Karabakh conflict irrelevant. That being so, failure to consider the nature of the Nagorno-Karabakh conflict reveals no reviewable error for the purposes of s476(1) of the Act.

[55] Nor, in my view, does the failure of the Tribunal to make a finding as to whether or not Mr Israelian was a member of a particular social group comprised of deserters and/or draft resisters reveal reviewable error for the purposes of s476(1) of the Act. The Tribunal's conclusion that the punishment Mr Israelian would face "for avoiding his call-up notice ... would be the application of a law of common application" necessarily involves the consequence that that punishment would not be discriminatory and, hence, would not constitute persecution ^[18] . In that context, the question of Mr Israelian's membership of a particular social group comprised of deserters and/or draft resisters became irrelevant.

Relief under s75(v) of the Constitution

[56] In the case of Ms Yusuf, the Minister's appeal must be dismissed. Accordingly, consideration of her claim for relief under s75(v) of the Constitution is unnecessary. In the case of Mr Israelian, the considerations which lead to the conclusion that the Tribunal's decision does not disclose reviewable error for the purposes of s476(1) of the Act also have the consequence that it does not involve jurisdictional error for the purposes of s75(v) of the Constitution.

Orders Ms Yusuf

[57] 1. The appeal should be dismissed with costs.

2. The application for relief under s75(v) of the Constitution should be dismissed. There should be no order as to costs.

Mr Israelian

[58] 1. The appeal should be allowed. The orders of the Full Federal Court, other than with respect to costs, should be set aside. In lieu, the appeal to that Court should be allowed and the orders of R D Nicholson J set aside, other than with respect to costs, and Mr Israelian's application to the Federal Court dismissed.

2. The application for relief under s75(v) of the Constitution should be dismissed. There should be no order as to costs.