Case: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402
Outcome: followed
SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 ; (2003) 77 ALD 402 (" SFGB "), the Full Court of this Court suggested that an error consisting of the making of a finding of fact for which there is no evidence may well constitute a jurisdictional error, even if it cannot also be concluded that the decision-maker applied an incorrect test or failed to apply the correct test or took into account irrelevant considerations or failed to take into account relevant considerations. The Court said (at 407 [19]-[20]): "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: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 355 7 [1990] HCA 33 ; ; 94 ALR 11 at 37 8 [1990] HCA 33 ; ; 21 ALD 1 at 23 4. If the decision of the tribunal was ' Wednesbury ' unreasonableness or if the material on which the tribunal relied was so inadequate that the only inference was that the tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at 62, 67, 76, 90 91 [2003] HCA 30 ; ; 73 ALD 1 at 4, 8 9, 18, 31 3. ( S20 ). 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) 170 CLR 1 at 35 6; 93 ALR 1 at 24 5." It seems to me that the finding that sterilisation was part of a penalty for the contravention of a law of general application was in error and the error was that there was no evidence to support the finding. The error was an error of law and, following the Full Court's decision in SFGB , a jurisdictional error. The finding was a critical step in the Tribunal's ultimate conclusion. It seems to me that it would be open to the Tribunal to conclude that the appellant belonged to a particular social group, being those women who became pregnant in contravention of China's family planning laws and who have been required to have that pregnancy terminated. The Tribunal found the appellant had a well-founded fear of serious harm (that is, forced sterilisation) and it seems to me that it would be open to it to conclude that the harm was for reasons of her membership of the social group and not for the reason of the application of a law of general application. In those circumstances, the appeal must be allowed and the matter remitted to the Tribunal. Conclusion The orders of the Court are as follows: 1. The appeal be allowed. The orders of the Federal Magistrates Court made on 21 February 2008 be set aside and in lieu of those orders there be orders that: (a) a writ of certiorari issue quashing the decision of the Refugee Review Tribunal handed down on 26 October 2006 (RRT Case Number 060341569); and (b) a writ of mandamus issue directed to the Refugee Review Tribunal requiring it to hear and determine the appellant's application for review according to law.