Case: Goldie v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 367 ; (2002) 121 FCR 383
Outcome: considered
Both the parties and the Tribunal discussed the decision of the Full Court in Goldie v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 367 ; (2002) 121 FCR 383. In that case, the Full Court addressed at 388 what might constitute an "error" for the purposes of an application for reinstatement under s 42A(10) of the AAT Act : 'The fault may have lain elsewhere, provided it induced the error. For example, because of a mistake as to his or her instructions, a solicitor or other representative of a party might have wrongly consented to a dismissal order or filed a notice of discontinuance. No fault would attach to the Tribunal; but, if the solicitor's mistake induced the dismissal of the action, it could properly be said the application had been "dismissed in error".' Having considered the material before it, the Full Court found that the word "error" is not limited to administrative errors on the part of the Tribunal. Rather, the term could include errors of any kind which related to the application before the Tribunal and which were operative in leading to the dismissal of that application. An example of such an error is a mistake by the applicant's legal or other representative, such as misconstruing the applicant's instructions, thereby inducing an erroneous dismissal of the application by the Tribunal. 8 Counsel for the applicant submitted that, on its face, the Tribunal's reasons disclose error. Mr Karp pointed to the observation at [11] in the reasons of the Tribunal that the applicant's evidence suggested that he did not have any view as to whether the Tribunal proceedings should be commenced or concluded. Mr Karp submitted that the Tribunal, because it neither considered nor found that there was "informed consent" on the part of the applicant to the withdrawal of the review application, but rather simply observed that the applicant had given general instructions to Mr Jones to procure a particular outcome by whatever means he thought best, thus committed jurisdictional error. 9 There are two difficulties with this submission. The first is that it is contrary to, and therefore seeks to challenge, the express finding by the Tribunal at [12] that there was no evidence that Mr Jones erred in the execution of the instructions given to him by the applicant. 10 The second difficulty is that the Tribunal at [6] specifically considered the principle expressed in Goldie 121 FCR at 388 that a mistake by a representative of an applicant could, in certain circumstances, induce an "error" sufficient to ground an application for reinstatement. It is not to be lightly inferred that, having expressly referred to this principle, the Tribunal would ignore it when making a determination. The Tribunal also considered the statement of issues prepared by Mr Jones concerning the proposed withdrawal of the applicant's review application, and the statement by the applicant that he was unaware of the decision to withdraw. Having done so, the Tribunal found at [12] that the evidence indicated that Mr Jones had not misunderstood or failed to execute the instructions given to him by the applicant. This conclusion is a finding of fact which was open to the Tribunal on the evidence before it, and which took into account the Full Court's observations in Goldie 121 FCR at 388. Accordingly, there is no error of law shown in the reasoning of the Tribunal in relation to this issue. 11 In addition to the submissions advanced by Mr Karp and discussed above, the original Notice of Appeal recites five grounds of appeal. None of these grounds are established in the present case. 12 The first ground alleges that the Tribunal's reasons disclose jurisdictional error and breach rules of natural justice. This ground of appeal must be rejected. Neither the assertion of jurisdictional error nor the assertion of a breach of natural justice are relevant to the decision under review, which concerns whether or not an application should be reinstated, and does not address the merits of any claim to refugee status. 13 The second ground of appeal alleges that the Tribunal failed to consider specific material relevant to the application for reinstatement. This ground fails because the reasons of the Tribunal disclose that the material was referred to and considered. 14 The third ground also alleges that the Tribunal failed to consider certain information. This ground must fail because it discloses no basis on which the Tribunal can be said to have ignored the information, or on which the information can be said to be of such importance that a failure to address it would constitute jurisdictional error. This ground may also be interpreted as alleging that the applicant did not consent to the withdrawal of the review application, and thus the Tribunal's reasons fell into error. For the reasons given above, this submission cannot be accepted.