FEDERAL COURT OF AUSTRALIA Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 736 Migration Act 1958 (Cth) ss 424(1), 476(1)(b), 476(1)(c), 476(1)(g), 476(4)(b) Curragh v Queensland Mining Co (1992) 34 FCR 212 referred to Choi v Minister for Immigration & Multicultural Affairs [2001] FCA 555 referred to Kugo v Minister for Immigration & Multicultural Affairs [2001] FCA 634 considered Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 applied AJMAL KHAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 309 OF 2001 GYLES J SYDNEY 18 JUNE 2001 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 309 OF 2001 BETWEEN: AJMAL KHAN APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: GYLES J DATE OF ORDER: 18 JUNE 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the costs of the respondent. 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 N 309 OF 2001 BETWEEN: AJMAL KHAN APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: GYLES J DATE: 18 JUNE 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 7 March 2001 the Refugee Review Tribunal ("the Tribunal") affirmed the decision of a delegate of the respondent not to grant a protection visa pursuant to the Migration Act 1958 (Cth) ("the Act") to the applicant. On 27 March 2001 an application for an order of review was filed. The application in this Court disclosed no grounds but included a statement that "Details will be sent at a later date". 2 On 30 May 2001 an amended application for order of review was filed, the grounds of the application being: "1. The decision that the Applicant was not a person to whom Australia has protection obligations was fundamentally based on the conclusion taken by the Tribunal that Applicant was not a member of the Jamu and Kashmri Liberation Front ("the JKLF") which itself was fundamentally and materially based on a conclusion that his membership card for the JKLF was not authentic. 2. There was no evidence or other material to justify the making of the finding that the Applicant's membership card for the JKLF was not authentic within the meaning of s 476(1)(g) of the Migration Act and that therefore the finding was based on the existence of a particular that did not exist: s 476(4)(b)." 3 When the matter came on for hearing on 8 June 2001, counsel for the applicant sought leave to file a further amended application containing the following grounds: "1. The decision that the Applicant was not a person to whom Australia has protection obligations was fundamentally and materially based on the related conclusions that he was not: (a) A credible witness, and, (b) A member of the Jammu Kashmiri Liberation Front (the "JKLF"). 2. the credibility finding was materially based on a finding that the applicant did not adequately explain what it referred to as an "important contradiction" between his evidence and certain independent evidence obtained by the Tribunal as to the date of the founding of the JKLF. 3. In making the finding referred to in 2 the Tribunal failed to consider or refer to other independent evidence obtained by it that corroborated the evidence of the Applicant. 4. In the circumstances, the failure to refer to or consider that material evidence leads to the conclusion that the Tribunal exceeded its authority or powers, such that the decision was made either without jurisdiction or in a manner not authorised by the Act within the meaning of ss 476(1)(b) and (c) of the Migration Act. 5. The credibility finding was also affected by the finding that the Applicant was not a member of the JKLF. 6. The finding that the Applicant was not a member of the Jamu and Kashmiri Liberation Front ("the JKLF") was itself fundamentally and materially based on a conclusion that his membership card for the JKLF was not authentic. 7. That finding was based on the existence of a particular that did not exist within the meaning of s 476(4)(b), in that there was no evidence or other material to justify the making of the finding that the Applicant's membership card for the JKLF was not authentic within the meaning of s 476(1)(g). …" This kind of amendment had been foreshadowed in the written submissions by counsel for the applicant sent by fax to my Chambers after 5pm on Wednesday, 6 June 2001. I granted leave to amend in the form of the further amended application. 4 The Tribunal took the view that the heart of the matter was the applicant's claim that he was a member and a leader of the Jammu Kashmir Liberation Front ("JKLF"), a militant group operating in Kashmir, and that because of his affiliation with the JKLF and his activities in support of it he faced the risk of "Convention-related" persecution if he returned to India. The Tribunal proceeded to make a threshold determination as to whether or not he was a member of the JKLF and what, if any, his activities in the organisation consisted of. There is not, and could not be, any dispute as to the appropriateness of this approach. The Tribunal closely analysed the material before it on that point and did not accept that the applicant was a member of the JKLF as claimed. It came to this conclusion on the basis that key aspects of the applicant's testimony were not credible. This was based upon a number of inconsistencies, contradictions and implausibilities in the applicant's account as the Tribunal saw it. One of these implausabilities was, in the Tribunal's opinion, that a card which the applicant produced as his membership card for the JKLF was not authentic. 5 The applicant's argument is that the finding that the applicant was not a member of the JKLF was based upon a conclusion that his membership card for the JKLF was not authentic and that this finding was based on the existence of a fact that did not exist in that there was no evidence or other material to justify the making of the finding that the applicant's membership card for the JKLF was not authentic. The applicant's submission proceeded to examine what took place during the interview of the applicant by the Tribunal and the reasons advanced by the Tribunal for its conclusion that the card was not genuine. It was submitted that none of the four reasons advanced by the Tribunal in its reasons could justify the making of the finding that the card was not authentic, either alone or in combination. 6 Counsel for the applicant sought leave to supplement the evidence by calling the applicant to prove facts from which it would appear that the card was authentic. Details of the evidence were read onto the transcript by counsel for the applicant and need not be repeated here. This evidence was to be led in order to satisfy the requirements of s 476(4)(b) of the Act. Counsel for the respondent opposed the application. It was submitted that the application was too late. If granted, he would require an adjournment. It was also submitted that the evidence, if led, should be rejected as irrelevant. 7 I rejected the application to give evidence, indicating I would give reasons in my judgment. In my opinion, the evidence sought to be led was, in the circumstances of this case, irrelevant. The authenticity or otherwise of the card was not a fact upon the existence of which the decision was based. Counsel for the respondent, in written and oral submissions, submitted that there were a number of reasons why this was so. Some of them were controversial, having in mind the uncertain state of the authorities as to the operation of s 476(1)(g) of the Act. I will not deal with all of them. It is necessary to identify the decision referred to in s 476(1)(g). It is fairly obvious that the decision for the purposes of s 476(4) must be the same as that for the purposes of s 476(1)(g). Identification of the decision has been approached in various ways in the cases, usually without extended discussion. I shall start with the most particular candidate, and then climb the ladder of generality. 8 If the authenticity of the card is regarded as the decision within s 476(1)(g), I do not agree that there was no evidence or other material to justify the making of the decision of the Tribunal that the card was not authentic. The applicant submitted the card was authentic, but failed to satisfy the Tribunal that it was. Each of the four reasons advanced by the Tribunal drew upon material before it. None was an invention of the Tribunal's. The correctness or otherwise of the Tribunal's finding of the facts is not in issue under s 476. The issue to be dealt with under s 476(4) is not reached. 9 If the decision for the purposes of s 476(1)(g) was the decision as to the applicant's membership of the JKLF, there was ample evidence or other material to justify the making of the Tribunal's decision on this point. The Tribunal analysed this evidence and material in ten closely reasoned pages. Authenticity of the card was only one of many points considered. Even if this is wrong, and there was no evidence or other material to justify the making of the decision, it cannot be said that the Tribunal's decision was based on the existence of a particular fact concerning the card. To elevate failure to establish the authenticity of a piece of evidence tendered in support of the applicant's case to a fact upon which a decision is based which did not exist is a misuse of language and logic. It is drawing far too long a bow. Even if that opinion be wrong, and, further, even if all of the reasoning in Curragh v Queensland Mining Co (1992) 34 FCR 212 at 220-221 ("Curragh") be applied as if it were a statute (cf Choi v Minister for Immigration & Multicultural Affairs [2001] FCA 555 per Madgwick and Kenny JJ at par 21), this is a clear case of parallel reasoning at every level. 10 Even if it were legitimate to describe the credibility of the applicant as the decision for the purposes of s 476(1)(g) and s 476(4)(b), the same problem arises. If the decision is that the applicant is not entitled to protection by reason of lack of reasonably based fear of persecution, then the position is even clearer. 11 Counsel for the applicant argued, citing Kugo v Minister for Immigration & Multicultural Affairs [2001] FCA 634 ("Kugo"), that disproof of a fact within s 476(4)(b) can be satisfied by having regard to the material before the Tribunal on the basis that there is a reasonable risk that the finding by the Tribunal on the authenticity of the card, being based upon matters which were not in evidence as to authenticity, was linked to the chain of reasoning involving credibility by which it reached the conclusion that the applicant did not have a well-founded fear of persecution. The substance of this submission is elusive, but seems to involve the conclusion that either there is no difference between s 476(1)(g) and s 476(4) or that "decision" is to be read differently in each place. If Kugo stands for these propositions, which I doubt, I would respectfully regard it as clearly wrong and not follow it. 12 Notwithstanding the careful and comprehensive arguments of counsel, this is not the case to explore all of the interesting and troublesome questions which arise as to the combined effect of s 476(1)(g) and s 476(4), some of which I noted in my judgment in Choi v Minister for Immigration & Multicultural Affairs [2001] FCA 555 at par 25. However, it may not be out of order to suggest that a reality-check is apposite. It would be an extraordinary result if, in circumstances where s 476(4) is obviously a limitation upon s 476(1)(g), the failure by a party to satisfy an inquisitorial tribunal of the authenticity of a piece of evidence put forward to support his or her claim could be relitigated before the Court upon quite different material, and with different standards and rules of proof. The result would be that the existence of any fact seen to be material in the Curragh sense found against an applicant by the Tribunal about which an applicant could give direct evidence could be relitigated in circumstances where the evidence of the applicant may not, in practice, be able to be rebutted by admissible evidence. 13 The other issue argued by virtue of the amendment raises jurisdictional error in relation to ss 476(1)(b) and (c). It is submitted by the applicant that the Tribunal had before it a report dated 16 June 1999 from the Research Director, Immigration and Refugee Board, Ottawa, which included a quote from a fax which would support a statement of the applicant that the Tribunal had implicitly rejected and which formed one of the important contradictions relied upon by the Tribunal in coming to the view that the applicant should not be believed as to his membership and association with the JKLF. This argument was founded upon the judgment of McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 ("Yusuf") at pars 67, 80 and 81 together with s 424(1) of the Act. 14 This is a creative, but flawed, argument. Even if the words "ignoring relevant material" in these passages from Yusuf are read literally, it cannot be established in the circumstances of this case, as the Tribunal expressly referred to the very document in another part of its reasons. The fact that it did not set out the particular part to which the applicant now refers, and that it did not draw the conclusions from it that the applicant would now prefer, might, at most, show that the Tribunal misunderstood or incorrectly rejected parts of the document. It could not be concluded that the Tribunal ignored those parts of the document. The manner in which their Honours looked at the facts in Yusuf illustrates the point (see pars 88 to 90). The same may be said of the obligation to "have regard to" information in s 424(1), even if failure to comply with that section could found jurisdictional error within ss 476(1)(b) or (c). 15 This conclusion makes it unnecessary to examine all of the arguments put for the respondent on this point, or to consider all of the ramifications of the decision in Yusuf. I can say, however, that I think it clear that the judgment of McHugh, Gummow and Hayne JJ was not intended to widen the existing scope of judicial review for jurisdictional error. Indeed, their Honours expressly state the contrary. In particular, I do not consider that their Honours were intending to, or did, redefine what are relevant considerations for the purposes of judicial review of administrative decisions, so as to make every fact or matter alleged by an applicant which a judge considers to be relevant to a decision to be a relevant consideration for those purposes (see particularly pars 71 to 73, 80 and 81). Indeed, I do not read any of the judgments in Yusuf as having this effect. None of their Honours say so, and there is every indication to the contrary (see Gaudron J at pars 40 to 42; Kirby J at par 151; Callinan J at pars 213 to 215, 219 and 234 to 236). 16 The application is dismissed. The applicant is to pay the costs of the respondent. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 18 June 2001 Counsel for the Applicant: P Bolster Solicitor for the Applicant: Kah & Associates Counsel for the Respondent: JD Smith Solicitor for the Respondent: Clayton Utz Date of Hearing: 8 June 2001 Date of Judgment: 18 June 2001