Minister for Immigration and Citizenship v SZMDS & Anor

[2009] HCATrans 183

[2009] HCATrans 183

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S79 of 2009

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Applicant

and

SZMDS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 31 JULY 2009, AT 2.11 PM

Copyright in the High Court of Australia

MR G.T. JOHNSON:   May it please your Honours, I appear for the applicants.  (instructed by DLA Phillips Fox)

MS T. BAW:   May it please the Court, I appear for the first respondent.  (instructed by Sarom Solicitors)

HAYNE J:   Yes.  There is a submitting appearance on behalf of the second respondent, I believe, is that right?

MR JOHNSON:   That is correct, your Honour, yes.

HAYNE J:   The Court, I think, may be assisted, Ms Baw, if we heard first from you about why leave should not be granted in this matter.

MS BAW:   Yes, your Honour.  The question for special leave does not arise, your Honour.  If I may take your Honour to page 73 of the application book.  The applicant’s argument at paragraph 1 is that the special leave question is:

Whether it is sufficient, in order to establish jurisdictional error by the respondent (“the Tribunal”), merely to show that the Tribunal, in the course of reasoning towards its ultimate and operative decision, made a finding of fact that the Court considers to be:  “illogical”; “irrational”; or lacking “articulation”?

Your Honour, the Federal Court did not purport to say that.  What Justice Moore in the Federal Court found was that jurisdictional error only arises when the ground of illogicality is applied to the statutory criterion essential for the Tribunal’s jurisdiction to exist.  If I may take your Honours to paragraph 29 of the Federal Court decision at page 58 of the application book.  At the bottom of that page his Honour says:

The Tribunal’s conclusion that the applicant was not a homosexual was based squarely on an illogical process of reasoning.  Section 65(1)(a)(ii) of the Act required the Tribunal to determine whether or not it was satisfied that the applicant met the criteria for the grant of a protection visa set out in the Act.  The applicant’s alleged membership of a particular social group arising from his homosexuality was an essential element of this inquiry.

This is no more or no less than the application of the formulation by the High Court in Minister v SGLB (2004) 78 ALD 224. Your Honours may have that case in the materials.

HAYNE J:   Yes, that is 78.  You have the Administrative Law Decisions but ‑ ‑ ‑

MS BAW:   Your Honour, there is also within the application book an extract of the paragraphs that I would like to turn your attentions to.  It is at page 55 of the application book, an extract of that case.  It is at the top of the page beginning with paragraph [37] and following on to [38] of that case.  It is in this case your Honour may recall Justices Hayne and Gummow set out that the grant or refusal of the protection visa under section 65(1)(a) of the Migration Act is conditioned by a condition precedent, a statutory criterion which has to be satisfied before the Minister can exercise its jurisdiction to grant or refuse the protection visa.

It is the application of the ground review of illogicality to that statutory criterion which in this paragraph has been called a “jurisdictional fact”.  When it is applied to that, that is when a jurisdictional error will arise.  Their Honours go on in the following paragraph, paragraph [38] to say that that the inquiry to be applied in applying the illogicality ground of review is:

the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.

HAYNE J:   But a possible point of view is that the relevant test is supplied by what Mr Justice Dixon said in Avon Downs 78 CLR 353 particularly at 360 where his Honour referred to a circumstance where the result arrived at, “appears to be unreasonable on the supposition that” the decision‑maker addressed “the right question.” In this particular field of refugee matters a possible point of view is that what has come to be known as the ground of illogicality is engaged if but only if the conclusion is, well, the decision‑maker did not ask the right question.

The issue that you then have to address as respondent seems to me to be, why is this not a question that we should take up, even recognising, as we must, that in this case the Minister denies the premise for the argument about illogicality that the Minister wants to advance because the Minister at paragraph 10, page 77 of the application book, says the Tribunal was not illogical?  But why should we not take up this issue and deal with what is meant in this field of discourse by saying a decision is illogical?

MS BAW:   Your Honour, the paragraph you refer to in Avon does not have full force, given the decision in SGLB which limited the ground of irrationality review to circumstances where it is a determination of a factual condition precedent to the exercise of jurisdiction.  It is very limited to that circumstance.  The facts in this case arise in which that irrationality review can be made because the criterion to be determined was whether or not the applicant was a homosexual.  It does not arise in every case.  It is not that a jurisdictional error is found every time that a decision‑maker makes a fact finding of any kind.  It is only when it is a determination of a fact that goes to a factual condition precedent to the exercise of the jurisdictional power; here, the refusal or the grant of a protection visa.

Without finding whether or not the applicant is a homosexual, the Minister, or the Tribunal in this case, would not have had jurisdiction.  In SGLB the facts were different.  The irrationality ground was not applied or, more specifically, jurisdictional error was not found in that case because the fact finding did not go to a factual condition precedent to the exercise of the power to refuse or grant.  In that case the fact finding was whether or not there was evidence that the applicant had post traumatic stress disorder.  Your Honours, SGLB had limited the question of irrationality or unreasonableness to these grounds and his Honour Justice Moore has applied them correctly to the facts that arise in this case.

Your Honour, another issue raised by the applicant is whether or not there is a conflict in the Federal Court cases with the High Court authority.  Does your Honour wish me to address that issue or not?

HAYNE J:   I think you should say anything that you think goes to the refusal of leave, Ms Baw.

MS BAW:   Yes, your Honour, certainly.  It is my submission, your Honour, the predominant Federal Court case that the applicant relies on in saying that it is inconsistent with the High Court authority NACB.  That was decided before the SGLB Case but notwithstanding that, we say there is consistency because what was said by the Full Federal Court in that case is that the decision held that illogical reasoning does not of itself constitute an error of law or jurisdictional error.  That is at paragraph [29] of that case, your Honour.

We say that that is still consistent with the High Court authority of SGLB because, as I have mentioned before, the irrationality ground is only applied to determinations of factual conditions precedent to the existence of the jurisdictional power.  The cases that follow NACB did not give rise to a factual finding of that kind.  They were factual findings going to the credibility of the applicant, altogether different to the facts in this case.  Your Honour, there is also an issue raised by the applicant upon the facts of this case whether or not there was illogicality.  If I may address that issue.

HAYNE J:   The debate about whether the reasons were or were not illogical depends upon what criterion is engaged when you assert that the decision is illogical, does it not?  We are back to the Avon Downs point that I think we have perhaps discussed.  What else would you seek to add about that point?

MS BAW:   Yes, you are right, your Honour.  That debate would engage those kind of discretions, however, again, I raise that the only question that the applicant is saying that they seek special leave on is whether or not a jurisdictional error arrises from the mere application of illogicality review ground.  We say that question does not arise because that is not what Justice Moore said.  It arises only when you apply it to a factual condition precedent to jurisdiction, and that is what occurred in this case.  It may not happen in every case of fact finding, but it did here because there had to be a determination of whether or not the applicant was a homosexual before the Minister could grant or refuse to grant the visa.

Your Honours, the illogicality was found to arise because the premises upon which the conclusion that the first respondent was a homosexual was unfounded by findings or inferences supported by logical grounds.  There are two premises for that; his short trip to Pakistan before arriving in Australia and his short trip to the UK back in 2006 whilst he was working in the UAE.  It is our submission that it is self‑evident that it is illogical to come to the conclusion that the first respondent is not a homosexual simply because he made a short trip to Pakistan where it is not in evidence or it is not open to make an inference that anyone in Pakistan learned that he was a homosexual.

Secondly, with the second premise, at that time he went to the UK his circumstances at that stage of his life was that he did not need to seek protection.  He had a secure job to return to in the UAE.  He was in a good relationship.  But those circumstances changed at a later part of his life and so he sought a protection visa in Australia.  The illogicality then arises when you look at those premises and come to a conclusion that he was not a practising homosexual in the UAE.  We say that is self‑evident.  Your Honour, if there is nothing further, those are my submissions.

HAYNE J:   Thank you, Ms Baw.  Mr Johnson, as I understand it, you seek leave on conditions as to costs of the kind described in paragraph 21 of your outline, is that right?

MR JOHNSON:   That is correct, your Honour, and that is reflected in the draft notice of appeal.

HAYNE J:   Yes.  We will not trouble you, then.  Upon condition that the Minister does not seek to disturb the costs orders of Mr Justice Moore and will in any event pay the first respondent’s reasonable costs in this Court, there will be a grant of special leave to appeal in this matter.  Would counsel agree that the matter would conclude in less than a day?

MR JOHNSON:   Yes, your Honour.

HAYNE J:   Yes, thank you.  There will be a grant on those terms.  Call the final matter in the list.

AT 2.28 PM THE MATTER WAS CONCLUDED