Case: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402
Outcome: applied
Before proceeding to the Tribunal's other reasons that are under attack, it is convenient to refer to some authorities on "no evidence" or "no information" submissions in the context of jurisdictional error. In SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 at [18] to [20] a Full Court said: "But the essence of the argument was that there was no information before the Tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason. This argument, if it were made out, would be sufficient to establish that the Tribunal had made a 'jurisdictional error' so as to found jurisdiction in this Court to intervene. If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 355-357. ... On the other hand, if there is sufficient evidence or other information before the Tribunal on which it could reach the conclusion it did then it is for the Tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a 'jurisdictional fact', there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36. It is for the Tribunal to determine the merit of the claim. The line between merits review and jurisdictional error may not be a 'bright line', but it is nevertheless an essential one: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272." 16 In VWAL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 266 at [24] , after quoting the second above paragraph from SFGB , Ryan J said: "by that passage I take their Honours to mean that a positive finding, in the absence of any supporting evidence, of the existence of a fact which is a critical step in deciding the ultimate matter as to which the Tribunal has to be satisfied, may signify jurisdictional error." (Emphasis in original.) Why his Honour made this clarification appears from [22] and [26]: "it is not a legal or jurisdictional error for the Tribunal, in evaluating the assertions of fact relied on by an applicant as giving rise to a well-founded fear of persecution, to reject one or more of those assertions as 'unclear', 'incoherent' or 'implausible'. That is so even if there is no identifiable piece of evidence which tends against acceptance of the relevant assertion. As Gleeson CJ and McHugh J indicated [in MIMA v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 629], different minds may form different views about issues which arise for determination on the way to resolving the ultimate question. The fact that a reviewing Court might disagree, even strongly, with a conclusion reached by the Tribunal on a question on the way to determining the ultimate question does not import jurisdictional error on the part of the Tribunal. ... In the present case the impugned rejection by the Tribunal of certain of the appellant's assertions of fact about assistance rendered to the LTTE or the LTTE's knowledge of the Army's intention to search her home did not depend on any inference from other facts. It resulted merely from a failure to attain a state of satisfaction that the assistance had been rendered or that the LTTE had the prior knowledge imputed to it. The fact that the rejection may appear to a reviewing court to be illogical is not to the point."