MZAFH v Minister for Immigration
[2017] FCCA 105
•2 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAFH & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 105 |
| Catchwords: MIGRATION – Application for a protection visa – whether Tribunal’s decision was legally unreasonable in respect of Applicants’ claims that they would suffer significant harm because of conversion from Sunni Muslim to Jehovah’s Witnesses – held Tribunal decision legally unreasonable – writs issued. |
| Legislation: Migration Act 1958 (Cth), sub-ss.36(2)(a), 36(2)(aa), 91R(3) |
| Cases cited: ARP15 v Minister for Immigration and Border Protection [2015] FCA 1220 Minister for Immigration and Border Protection v Stretton[2016] FCAFC 11 Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 Minister for Immigration and Citizenship v Li [2013] HCA 18 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 MZAFH v Minister for Immigration and Border Protection [2015] FCCA 2397 MZAFH v Minister for Immigration and Border Protection [2016] FCA 57 |
| First Applicant: | MZAFH |
| Second Applicant: | MZAFI |
| Third Applicant: | MZAFJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1110 of 2014 |
| Judgment of: | Judge Jones |
| Hearing date: | 22 September 2016 |
| Date of Last Submission: | 22 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 2 February 2017 |
REPRESENTATION
| Counsel for the Applicants: | Self-represented |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 21 May 2014.
A writ of mandamus issue remitting the matter to the Second Respondent and requiring it to determine according to law the application made to it by the Applicants for review of the delegate of the First Respondent’s decision.
The First Respondent pay the Applicants’ costs in a fixed amount.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1110 of 2014
| MZAFH |
First Applicant
| MZAFI |
Second Applicant
| MZAFJ |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed 6 June 2014, the Applicants seek judicial review of a decision of the then Refugee Review Tribunal (“the Tribunal”) made on 21 May 2014 under the Migration Act 1958 (Cth) (“the Act”), affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) not to grant the Applicants Protection (Class XA) visas (“the visa”).
This Court gave judgment on the application on 17 August 2015: MZAFH v Minister for Immigration and Border Protection [2015] FCCA 2397 (“MZAFH 1”) (CB 267–279). On 9 February 2016, the Federal Court of Australia allowed an appeal and set aside this Court’s Orders dismissing the application and remitted the matter: MZAFH v Minister for Immigration and Border Protection [2016] FCA 57 (“MZAFH 2”) (CB 314-328). The grounds of appeal were, in substance, identical to the grounds of the application to this Court: MZAFH 2 (CB 324 at [26]).
In giving judgment, Edelman J held relevantly at [27] (CB 324):
In relation to the first four grounds of appeal there is no error in the reasoning of the Federal Circuit Court which I have described above. The judicial review application relied upon alleged errors in factual findings by the Tribunal. There was evidence to support each of the Tribunal’s conclusions. And neither the exercise of the evaluative judgement by the Tribunal, nor the challenged factual bases upon which that judgement was exercised was irrational or unreasonable …
In relation to the fifth ground, the Federal Court held that that the Court in MZAFH 1 erred. His Honour characterised the fifth ground as one which alleged at [34] (CB 326):
… that the conclusions of the Tribunal in relation to those matters were either (i) irrational or (ii) unreasonable in either the narrow or the broad senses described in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; see ARP15 v Minister for Immigration and Border Protection [2015] FCA 1220 [34]-[36].
His Honour described the error in these terms at [35] to [36] (CB 326):
35. The Federal Circuit Court was right to conclude that it was open to the Tribunal to reach the conclusions (1) and (2) set out at [24] above. As I have explained, the Tribunal considered these issues in detail and referred to relevant country information. The Tribunal concluded that the applicants did not face a real risk of persecution for those reasons and did not face a real risk of significant harm for such reasons. The Tribunal’s conclusions in this regard were open on the evidence.
36. However, neither of those conclusions addresses an essential integer of the ground of review before the Federal Circuit Court: were there “substantial grounds [in the irrationality or unreasonableness sense] for believing there was a real risk the [appellants] would be subjected to significant harm because of their religious conversion and the fact they are former Sunni Muslims”? Instead, the conclusions (1) and (2) at [24] above focus upon the appellants’ “actual or imputed Sunni religion” rather than their claim that they would be subjected to significant harm arising from their conversion from the Sunni religion.
It is appropriate to extract in full paragraph [24] (CB 324), to which Edelman J referred:
24. As to the fifth particular, the Federal Circuit Court set out nine paragraphs of the Tribunal’s reasoning. In those nine paragraphs, the Tribunal reached the following conclusions:
(1) the appellants do not have a “subjective fear of persecution for reasons of their actual or imputed Sunni religion or their actual or imputed political opinion in support of Sunni dominated parties in Lebanon”; and
(2) the Tribunal did not accept that the appellants
face a real chance of serious harm amounting to persecution. Having assessed their claims both individually and cumulatively, the Tribunal finds that they do not have a well-founded fear of persecution at the hands of Hezbollah, Shia Muslims, Alawites, Syrian agents or anybody else for reasons of their actual or imputed Sunni religion or actual or imputed political opinion if they were to return to Lebanon now or in the reasonably foreseeable future.
(emphasis in original)
His Honour rejected the Minister’s submissions on appeal that the Court in MZAFH 1 had not confined its consideration of this fifth ground of review to the paragraphs of the Tribunal reasons that it quoted. These paragraphs of the Tribunal decision are quoted by the Court in MZAFH 1 at [20] (CB 276-278). His Honour further rejected the Minister’s second submission that any error by the Federal Circuit Court could not make any difference. With respect to this argument, Edelman J said at [44] and [45] (CB 327-328):
44. As to this second submission, there may be doubt concerning whether it is open for this Court to dismiss an appeal on the ground that a failure to address a significant submission “would inevitably result in the making of the same order”. That would apply strictly the remarks of Mason CJ, Wilson, Brennan, Deane and Dawson JJ in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145, which was itself a case concerning the exercise of a power to allow an appeal despite a failure of procedural fairness. There may be doubt concerning whether that decision would always be applied in cases involving significant denials of procedural fairness: see, for instance, Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 298; (2003) 133 FCR 541 [108] and, by analogy, Weiss v R [2005] HCA 81; 224 CLR 300, 317 [45] (the Court).
45. In any event, I am not satisfied that if this matter had been considered by the Federal Circuit Court then the application for judicial review would inevitably have been dismissed. It would be necessary to focus closely on the reasoning in [92] of the Tribunal’s reasons and other passages such as [106]. The reasonableness or rationality (in the sense I have described) of findings in those paragraphs would need to be assessed in the context of the whole of the Tribunal’s reasons. Further, it would also invite consideration of other matters. For instance, was the Tribunal in [92] considering whether the truthful explanation about conversion would endanger the appellants? Would that be a sufficient ground for the application for judicial review to succeed? None of these matters was addressed in detail on this appeal. I do not suggest that counsel for the Minister should have addressed these matters on this appeal, but I point this out merely to say that I am not satisfied that the application for judicial review would inevitably have been dismissed.
Background and Claims
The Applicants are nationals of Lebanon. The First Applicant (“the Applicant”) is the husband and father, who arrived in Australia on 2 July 2007 on a student visa. The Second Applicant is his wife (“the wife”) who arrived in Australia in April 2009, after the Applicant and his wife were married in Lebanon in accordance with the Muslim faith. The Third Applicant is their son who was born in April 2009 in Australia. Since arriving in Australia, the wife has given birth to a daughter.
The Applicant and his wife lodged an application for a Protection visa on 13 July 2012, which was refused on 18 October 2012 by the delegate.
Both the Applicant and the wife claim to be owed protection obligations, primarily on the basis that they feared persecution or significant harm because they have converted to the Jehovah’s Witness religion and are former Sunni Muslims. The Applicant claims he converted whilst in Lebanon, whereas his wife claims she converted after she arrived in Australia.
The material facts relating to the claim were set out in a statement from the Applicant that accompanied the visa application (CB 54) and were extracted in the Tribunal decision record (CB 209 at [22]):
a)the Applicant learned about the Jehovah’s Witness faith in Lebanon in 2005 from a university lecturer. He continued to meet with this lecturer and learn more about the religion;
b)the Applicant invited the lecturer to visit him at his village. He was required to obtain permission from his family for the visit. When seeking permission, the Applicant's father learned the lecturer was a Jehovah’s Witness and assaulted the Applicant; and
c)the Applicant informed the lecturer about what had happened and they decided to continue to meet in secret. The lecturer then advised the Applicant to leave Lebanon and go to another country.
The Tribunal also noted the further evidence and claims of the Applicant and his wife that:
a)while in Australia, the Applicant did not initially pursue his religion as a Jehovah’s Witness. The Applicant claimed he did not know where to go to practise his religion, and did not want to do something that would cause his wife not to join him in Australia (CB 211-212 at [40]-[42]);
b)the Applicant re-pursued his religion as a Jehovah’s Witness in 2012 and has since been attending Jehovah’s Witness gatherings at a Kingdom Hall (CB 211at [40]);
c)while in Australia, a man called Fadi visited the Applicant, saw a copy of the Bible on the Applicant’s table and asked the Applicant if he was Christian. He then told everyone in Altona, the area where the Applicant lived Melbourne, that the Applicant was a Christian and no longer went to mosque. The Applicant’s father in Lebanon found out, cut off the Applicant’s financial support and disowned him. The Applicant’s father also threatened to kill the Applicant (CB 212 at [42]-[45]);
d)the wife had been receiving threats and had been assaulted on two occasions at shopping centres (CB 214 at [594]);
e)three Sheikhs from the community visited the Applicant at his home and told the Applicant to return to the Muslim faith. The Sheikhs mentioned the incidents involving his wife (CB 214 at [60]); and
f)the Applicant’s car and house had been vandalised on numerous occasions (CB 215 at [62]).
Tribunal Decision
The Tribunal rejected all of the Applicants’ claims on the following bases:
Assault on the wife
In relation to the claims about the assault on the wife, the Tribunal made the following findings:
a)the wife may have been physically assaulted, however these were random attacks by people who did not know the Applicants, nor did they have any connection to the Muslim community in Melbourne (CB 215 at [68]);
b)noting that the Applicant believed that those who attacked his wife were the Sheikhs who visited his house, the Tribunal said it did not accept the Applicant’s explanation that reporting the Sheiks to the Police would be futile. This was because the Tribunal found that, as the Sheikhs would not have been of unknown identity, the Applicants’ had an ability to positively identify them and the Police would have been more likely to take action (CB 215-216 at [69]); and
c)the Applicants’ house and car may have been vandalised, but this was not due to their claimed religion (CB 216 at [70]).
Jehovah’s Witness religion
In relation to the Applicants’ claims about their Jehovah’s Witness faith, the Tribunal made the following findings:
a)it did not accept any of the Applicant’s claims regarding his activities in Lebanon and that there was a university lecturer who convinced the Applicant to become a Jehovah’s Witness. The Tribunal also did not accept that a practising Jehovah’s Witness in Lebanon would recommend the Applicant leave Lebanon in order to practise his new found religion (CB 216 at [72]-[73]);
b)the Applicant's father did not attack him as claimed (CB 216 at [74]–[75]);
c)it did not accept the claims regarding the Bible in the Applicants’ home and the claims regarding a man called Fadi (CB 217 at [76]-[79]);
d)it accepted that the Applicant had attended Kingdom Hall since 2012 on a regular basis, that he delivered an address at a Jehovah’s Witness gathering and that the Applicant attends to “witness” on weekends. It noted that, at the date of the second Tribunal hearing, neither the Applicant nor his wife had been baptised in the faith. The Tribunal, however, found that the Applicant started his religious activities in Australia to strengthen his claims to be a refugee. Thus, for the purposes of the claims under sub-s.36(2)(a) of the Act, it disregarded these activities pursuant to sub-s.91R(3) of the Act (CB 217 at [80]-[82]);
e)it did not accept the Applicant’s reasons for refraining from practising his religion from 2007 to 2012 in Australia (CB 217-218 at [83]);
f)it did not accept that the wife was convinced to become a Jehovah’s Witness, or that she is one. The Tribunal described the wife’s explanation that she only became convinced she should become a Jehovah’s Witness some three to four months before the Tribunal hearing as a “convenient fabrication” to explain her lack of engagement in any religious activities (CB 218 at [85]-[86]);
g)it did not accept the Applicant’s attendance at Kingdom Hall, and his other activities were known to his relatives or widely known in the Lebanese community. The Tribunal also did not accept that the Applicants had ever been threatened by any relatives, strangers, ‘Sheikhs’ or anybody else or harmed by anyone in any other way in Lebanon or Australia for reasons of a real or imputed Jehovah’s Witness religion (CB 218 at [87]-[88]); and
h)if the Applicants returned to Lebanon, they would not engage in any Jehovah’s Witness activities, as the sole purpose of their activities in Australia was to obtain protection and, therefore, they would not be accused of apostasy or conversion away from Islam: (CB 219 at [91]).
Applicants’ Sunni religion
The Tribunal considered the Applicants’ representative’s alternative submissions regarding the current turmoil in Lebanon and whether the Applicants would be harmed due to being Sunni Muslims (CB 219-221 at [93]-[104]). The Tribunal concluded that they did not have a subjective fear of persecution for reasons of their actual or imputed Sunni religion, or their actual or imputed political opinion in support of Sunni dominated parties in Lebanon (CB 220 at [99]).
The Tribunal also considered available country information and did not accept that the Applicants faced a real chance of serious harm amounting to persecution for this reason (CB 220-221 at [100]-[102]).
Complementary protection
With respect to the Applicants’ claims to fear significant harm under the complementary protection provisions of the Act, the Tribunal said (CB 221 at [105]-[107]):
105. As already noted above, even though the tribunal does accept that the first named applicant has engaged in some Jehovah’s Witness activities, the Tribunal is not satisfied on the evidence that he is a genuine convert and that he has a well-founded fear of persecution for that reason.
106. On the available evidence the Tribunal does not accept there is a real risk that any one of the applicants will be subjected to significant harm in connection with their alleged Jehovah’s Witness religion upon their return to the receiving country Lebanon .
107. The Tribunal has also considered the alternative submissions and finds that while they are in fact Sunni Muslims, there is no real risk that they will suffer significant harm in relation to their religion or political views associated with that religion upon their return to the receiving country Lebanon.
The Tribunal concluded that the Applicants did not meet the criteria under sub-s.36(2)(aa) of the Act (CB 221 at [108]).
Judicial Review
The Applicants’ grounds of judicial review are as follows:
1. The decision of the Refugee Review Tribunal is made without jurisdiction and is affected by jurisdictional error.
Particulars
a. The Tribunal had no evidence to base its conclusion that the applicant started these religious activities with the Jehowah's Witness [sic] in order to strengthen his claims of a refugee [sic].
b. The Tribunal has fallen into error by disregarding these activities pursuant s.91R (3) of the Act.
c. There is no evidence to suggest that the Applicant and his wife would not engage in Jehowah's Witness [sic] activities on their return to Lebanon.
d. There is a real risk that the applicant and his wife will suffer persecution from family and in- laws in Lebanon and be accused of apostasy or conversion on their return to Lebanon.
The Tribunal should have taken into account the question of apostasy in Lebanon and the likely effects on the applicant and his wife.
e. The tribunal has erred in that it comes to the conclusion that there are not substantial grounds for believing there was a real risk the applicants would be subjected to significant harm because of their religion conversion and the fact they are former Sunni Muslims. Also, substantial grounds include the current political/religious situation in Lebanon and the manner in which apostasy/conversion is treated by the general Muslim population in Lebanon.
The Federal Court found that there was no error in the reasoning of the Federal Circuit Court’s findings in MZAFH 1 that the Applicants’ first to fourth judicial grounds of review (subparagraphs (a)-(d) of the Particulars) did not disclose jurisdictional error (CB 324-325 at [27]-[30]). However, Edelman J found that the Federal Circuit Court erred in its finding that ground five (subparagraph (e) of the Particulars) did not disclose jurisdictional error (CB 327 at [39]-[40]).
Strictly speaking, ground five of the Applicants’ grounds of judicial review is the only ground this Court should be concerned with on remittal. However, as the Orders in MZAFH 2 were expressed in general terms, that is, setting aside the Order of the Federal Circuit Court dismissing the application for judicial review, it falls to this Court on remittal to consider each of the grounds of judicial review. However, I make it clear that I find (for the reasons set out below) no jurisdictional error in relation to grounds one to four of the Applicants’ grounds of judicial review and, to this extent, I respectfully concur with the findings of the Federal Circuit Court in MZAFH 1 and the Federal Court in MZAFH 2.
The Federal Court noted that grounds one to four challenge factual findings made by the Tribunal (CB 324 at [27]). I agree with the Minister that Parliament has given the role of making findings of fact to the Tribunal. There was sufficient evidence before the Tribunal for it to make the findings that it did, and those findings were rational and reasonable: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611.
Ground one
The Applicant claimed that the Tribunal erred because it did not have evidence to conclude that the Applicant had started his religious activities with the Jehovah’s Witnesses in order to strengthen his claims to be a refugee.
There was evidence before the Tribunal that supported its conclusion that the Applicant had started his religious activities in order to strengthen his claims to be a refugee:
a)the Applicants did not provide evidence of having been baptised in the Jehovah’s Witness faith (CB 217 at [81]); and
b)the Applicant came to Australia on a student visa in 2007 and did not participate in Jehovah’s Witness activities until 2012 (CB 212-213 at [41], [47] and [49]);
It follows that the Tribunal’s findings were open on the evidence.
Ground two
The Applicant claims that the Tribunal fell into error by disregarding the Applicant's religious activities pursuant to sub-s.91R(3) of the Act.
Sub-section 91R(3) of the Act provided:
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
At [82] of its decision, the Tribunal found that the Applicant had started his religious activities recently in order to strengthen his claims to be a refugee. It followed that under sub-s.91R(3) of the Act, the Tribunal was required to disregard the Applicant’s religious activities in Australia, which it did (CB 217 at [82]).
Ground three
The Applicant claimed that there was no evidence to suggest that he and his wife would not engage in Jehovah’s Witness activities on their return to Lebanon.
Tribunal found that the Applicants had engaged in Jehovah’s Witness activities in Australia for the sole purpose of obtaining protection. It was, therefore, open to the Tribunal to conclude that the Applicants would not engage in Jehovah’s Witness activities on their return to Lebanon (CB 219 at [91]).
Ground four
The Applicant claimed that the Tribunal failed to consider the issue of apostasy in Lebanon and the likely effects on him and his wife. This ground cannot be sustained. At [91], the Tribunal considered this issue and concluded the Applicants would not be accused of apostasy or conversion away from Islam (CB 219).
Ground five
This ground was characterised by the Federal Court as being, that the conclusions of the Tribunal in relation to the Applicant’s claim of religious conversion and former Sunni Muslim status under the complementary protection provisions of the Act, were irrational or unreasonable in the senses described in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”). See also ARP15 v Minister for Immigration and Border Protection [2015] FCA 1220, [34]-[36] (“ARP15”).
In ARP15, Edelman J identified the two senses in which the term “legal unreasonableness” may be used, at [34] to [36]:
34. The first sense in which the term is used is sometimes used is in a compendious sense to describe the variety of different possible errors in decision making including where the decision maker has committed “a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense”: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 366 [72] (Hayne, Kiefel and Bell JJ); see also at 350 [27] (French CJ).
35 . There is no apparent unreasonableness in the Tribunal’s decision in this first sense.
36 . The second sense in which the term “unreasonableness” is sometimes used is where “‘upon the facts [the result] is unreasonable or plainly unjust’ … [for] the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power”: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 367 [76] (Hayne, Kiefel and Bell JJ); see also at 350-351 [28] (French CJ). In the same case, Gageler J explained that the “stringency of the test” was such that a judicial determination of reasonableness in Australia has in practice been rare: at 377 [113].
In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (“SZUXN”), Wigney J also identified the two senses in which irrationality or unreasonableness may be asserted, at [44]:
In Singh, the Court analysed and elaborated on the reasoning in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 concerning legal unreasonableness. Importantly the Court drew attention to the two different contexts in which the concept of legal unreasonableness is employed. The first is a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision making process. The second is outcome focused: a conclusion reached by a supervising court that the outcome of the exercise of power was arbitrary, capricious or outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law. Both Li and Singh concerned the exercise of statutory discretions that were found to be legally unreasonable in the outcome sense.
In this case, having regard to the Applicant’s oral submission at the hearing, it seems to me that the Applicants rely on the second sense in which legal unreasonableness may be used; namely that, on the facts, it would be plainly unjust or unreasonable for the Tribunal not to find that if returned to Lebanon they would suffer significant harm (within the meaning of sub-s.36(2)(aa) of the Act) because of their “religious conversion” and the fact they are “former Sunni Muslims”. However, I will consider whether the Tribunal’s decision was legally unreasonable in both senses identified.
Turning to SZUXN, commencing at [49], his Honour summarised the relevant principles in circumstances where legal unreasonableness is concerned with the reasoning of the Tribunal:
49. There may be circumstances where illogicality or irrationality in the decision-making process may constitute or justify a finding of an underlying jurisdictional error. A Tribunal that employs irrational or illogical reasoning, or makes irrational findings of fact not based on probative material, is likely to be in breach of the implied requirement that it act reasonably in exercising its statutory review powers and jurisdiction. A decision based on, or flowing from, irrational and illogical reasoning or factual findings is likely to be legally unreasonable and beyond power.
50. As was made clear by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 647-648 [130]-[132], however, not every lapse in logic in the decision-making process will result in jurisdictional error. If particular findings or reasoning on the way to the decision-maker’s ultimate conclusion and decision are challenged on the basis of illogicality or irrationality, jurisdictional error will not be made out unless it is shown that the findings could not have been made, or the reasoning could not have been employed, by a reasonable or rational decision-maker. At 648 [131] their Honours said:
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
51. Crennan and Bell JJ found that the impugned finding or reasoning by the Tribunal was not illogical or irrational because on the probative evidence before the Tribunal a logical or rational decision-maker could have come to the same conclusion. Heydon J, who was the other member of the majority in SZMDS, also found that the Tribunal’s reasoning was not illogical because it was a matter about which reasonable minds might differ: the “difference was one of degree, impression and empirical judgment” (at 632 [78]). Gummow ACJ and Kiefel J dissented. They found that the Tribunal’s reasoning was illogical. Their Honours nevertheless emphasised that the “critical question” whether a determination of the Tribunal is irrational, illogical and not based on findings or inferences of facts supported by logical grounds “should not receive an affirmative answer that is lightly given” (at 625 [40]).
52. As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or rationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
53. The Minister submitted that a decision of the Tribunal can only be overturned on the basis of illogicality or irrationality if it is shown that the end result is one which no logical or rational decision-maker could arrive at. The submission appeared to be that, where a decision is challenged on the basis of illogicality or irrationality, the reviewing court should decide for itself whether the end result was irrational on the materials that were before the decision-maker, as opposed to whether the decision-maker’s reasoning was illogical or irrational. This was said to flow from the judgment of Crennan and Bell JJ in SZMDS.
54. The Minister’s submission in that regard is rejected. The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].
55. Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].
It is appropriate to observe that caution must be exercised in resorting to identified categories of legal unreasonableness. In Minister for Immigration and Border Protection v Stretton[2016] FCAFC 11 (“Stretton”), Griffiths J said:
61. The relevant principles established in Singh may be summarised as follows:
(a) legal unreasonableness “is invariably fact dependent” and requires a careful evaluation of the evidence. The outcome of any particular case in which it is claimed that there has been a legally unreasonable exercise of a discretionary power will depend on the application of the principles from Li and the authorities discussed therein, rather than on an analysis of factual similarities or differences between individual cases, including Li (at [42]);
(b) there is a presumption of law that the Parliament intends an exercise of statutory power to be reasonable (at [43]);
(c) there are two species of legal unreasonableness, namely where the review court has identified an underlying jurisdictional error in the decision-making process but the concept of legal unreasonableness can also be “outcome focused” where there is no “evident and intelligible justification” (citing Li at [66] per Hayne, Kiefel and Bell JJ and at [105] per Gageler J) (at [44]);
(d) where there are reasons in support of an exercise of discretion, those reasons provide the focus for an assessment as to whether the decision is unreasonable in the legal sense and, in such a case, it would be rare where the reasons demonstrate a justification but the ultimate exercise of the power is found to be legally unreasonable ([45]-[47]); and
(e) perhaps most importantly of all, the standard of legal unreasonableness applies across a wide range of statutory powers, but the indicators of legal unreasonableness are found in the scope, subject and purpose of the particular statutory provisions in issue in any given case, as well as being fact dependent (at [48]).
62. Cases such as Li and Singh identify important principles which guide the nature and scope of the head of judicial review for legal unreasonableness. Just as there are “subtleties” encompassed in the broad concept of jurisdictional error (see Plaintiff M64 at [26]) so there are with the head of unreasonableness and its relationship with the concept of proportionality. The relevant principles which have emerged to date provide helpful guidance but they ought not to be viewed as exhaustive or as encouraging a formulaic approach to the application of these heads of review which proceeds by way of an exercise in “ticking the boxes” (see the pertinent observations of Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [77] ). A more sophisticated approach is required, one which focuses central attention on the question whether an administrative decision is one which is within the authority of the decision-maker to make. This necessarily requires that close attention be given to relevant features of the particular statutory framework within which that authority arises. That framework necessarily includes the subject matter, scope and purpose of the relevant statutory power. But the statute also frequently provides additional indicators which assist in determining whether a particular exercise of a statutory discretionary power is one which exceeds the authority of the decision-maker and is legally unreasonable. Rather than discuss these matters in the abstract, it is desirable to illustrate their relevance to the standard of legal unreasonableness by reference to the Minister’s discretionary power under s 501(2) of the Migration Act, to which I now turn.
(emphasis in original)
In Stretton, Allsop CJ (agreeing with Griffiths J) said in his judgment:
10. This concept of legal unreasonableness is not amenable to minute and rigidly‑defined categorisation or a precise textual formulary. For instance, in argument, the submission was put that [76] of Li in the judgment of Hayne, Kiefel and Bell JJ contained two (different) “tests”: (1) if upon the facts the result is unreasonable or plainly unjust and (2) if the decision lacks an evident and intelligible justification. The submission reflected the dangers of overly emphasising the words of judicial decisions concerning the nature of abuse of power, and of unnecessary and inappropriate categorisation. The plurality’s discussion of unreasonableness at [63]‑[76] in Li should be read as a whole – as a discussion of the sources and lineage of the concept: [64]‑[65], of the limits of the concept of reasonableness given the supervisory role of the courts: [66], of the fundamental necessity to look to the scope and purpose of the statute conferring the power to find its limits: [67], of the various ways the concept has been described: [68]‑[71], of the relationship between unreasonableness derived from specific error and unreasonableness from illogical or irrational reasoning: [72], of the place of proportionality or disproportion in the evaluation: [73]-[74] (as to which see also French CJ at [30] and see also McCloy v New South Wales [2015] HCA 34; 325 ALR 15 at [3] (French CJ, Kiefel, Bell and Keane JJ)), of the guidance capable of being obtained from recognising the close analogy between judicial review of administrative action and appellate review of judicial discretion: [75]-[76].
11. The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
12. Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.
13. The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.
Wigney J, agreeing with Griffiths J, said at [92]:
The critical point is that, in reviewing a decision on the ground of legal unreasonableness, the Court’s role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76], [105]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44]-[45]), or if the decision is within the “area of decisional freedom” of the decision-maker (Li at [28], [66], [105]; Singh at [44]), it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently. Unfortunately, and with the greatest respect to the primary judge, it is difficult to escape the conclusion that that is what occurred here.
At the judicial review hearing, both the Applicant and his wife made oral submissions. The Applicant said, in summary:
a)he is a Jehovah’s Witness and a former Sunni Muslim;
b)it is well known that Jehovah’s Witnesses are persecuted in Lebanon;
c)in Lebanon persons who convert from Islam to another religion are sentenced to death and this is sanctioned by the Government;
d)because of his conversion he will be persecuted;
e)the Tribunal did not look at the particular incidents that Jehovah’s Witnesses are facing in Lebanon; and
f)the Tribunal made its decision without taking into consideration all the suffering that he has been through, which includes his human rights.
The wife submitted, in summary, that:
a)in rejecting their claims the Tribunal reached its decision without any evidence because it failed to take into account the evidence that the Government in Lebanon is persecuting Jehovah’s Witnesses; and
b)she has removed her hijab and for that she is now condemned and her safety is at risk if she returns to Lebanon.
Counsel for the Minister first noted that Edelman J decided that the Federal Circuit Court erred in treating ground five as if it only related to the Sunni Muslim status of the Applicants. The Minister submitted that, when regard is had to the way in which ground five is expressed, there is an anterior question; namely, that the Applicants claimed they had converted from their Muslim religion to the Jehovah’s Witness faith.
The Minister submitted that it is evident from the Tribunal’s reasoning that the Tribunal rejected the Applicant and the wife’s claim that they had converted from their Muslim religion to the Jehovah’s Witness faith. In particular:
a)first, the Tribunal rejected that the Applicants were religious converts (CB 218 at [87] and CB 219 at [91]); and
b)second, it follows from the first factual finding, the Tribunal implicitly found the Applicants were not “former” Sunni Muslims but rather, “current” Sunni Muslims, as claimed in the alternative by the Applicant (CB 209 at [25], 218 at [84], 219 at [92] and 220 at [98]).
The Minister argues that once the Tribunal made those findings, it was open to it to reject the Applicants’ claims that there was substantial grounds for believing that they would suffer significant harm on account of their religious conversion or because they were “former” Sunni Muslims.
The Ministers observed that, if the second part of the ground refers to a more general claim of a risk of significant harm because of the current political and religious situation in Lebanon (which the Minister denies), it is apparent that the Tribunal extensively canvassed country information and the Applicants’ circumstances (CB 220 at [100]-[102]). The Minister further argued that, for like reasons, the Tribunal concluded that there was not a real risk of significant harm to the Applicants if they were to return to Lebanon (CB 221 at [107]-[108]).
The Minister submits that those conclusions were open (for the reasons the Tribunal gave) and were rational and reasonable: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611.
Consideration
It is evident from the Applicant’s and the wife’s submissions to the Court that, ground five is premised on the assertion that they converted from their Sunni Muslim religion to the Jehovah’s Witness faith. They submit that they are Jehovah’s Witnesses and are former Sunni Muslims. The further claim is that persons who are of the Jehovah’s Witness religion and those who convert are persecuted in Lebanon and are not protected by the Government. For this reason, they submit that there are substantial grounds for believing that there is a real risk that if they are returned to Lebanon they will be subjected to significant harm.
The questions then becomes, what was the evidence that the Tribunal failed to consider or properly consider, which rendered its finding that the Applicants had not converted to the Jehovah’s Witness faith unreasonable? In other words, were the factual findings made by the Tribunal open to it, rational and reasonably made in light of the evidence before the Tribunal? Further, was the reasoning evidenced in the Tribunal decision record so deficient in the sense it could be said to amount to “extreme illogicality”?
Without elucidating further, Edelman J found that, had the Federal Circuit Court given consideration to the integer of ground five of the judicial grounds of review relating to their status as religious converts and former Sunni Muslims in the context of the Tribunal’s treatment of the claim under the complementary protection provisions of the Act (CB 328 at [45]):
… It would be necessary to focus closely on the reasoning in [92] of the Tribunal’s reasons and other passages such as [106]. The reasonableness or rationality (in the sense I have described) of findings in those paragraphs would need to be assessed in the context of the whole of the Tribunal’s reasons. Further, it would also invite consideration of other matters. For instance, was the Tribunal in [92] considering whether the truthful explanation about conversion would endanger the appellants? Would that be a sufficient ground for the application for judicial review to succeed?
In written and oral submissions, the Minister did not address these particular matters raised by Edelman J with respect to the Tribunal’s decision record.
Contrary to the Minister’s submission, the Tribunal did not, in express terms, reject the Applicant’s claims that he had converted to the Jehovah’s Witness religion. The paragraphs relied on by the Minister to support the submission that the Tribunal rejected the Applicant’s claims that he converted to the Jehovah’s Witness religion do not, in terms, make this finding.
What, in fact, is found by the Tribunal, is that the “conversion” was not genuine:
a)at paragraph [87] (CB 218), the Tribunal merely finds that the “[conversion] is not genuine”; and
b)at paragraph [91] (CB 219), the Tribunal finds that, if the Applicants were to return to Lebanon, they would not engage in any Jehovah’s Witness activities.
Having regard to the paragraphs of the Tribunal decision record relied on by the Minister, I do not accept that it can be said that the Tribunal found the Applicants were not former, but rather current Sunni Muslims:
a)at paragraph [25] (CB 209), the Tribunal notes the Applicant’s evidence that he was one of nine children and they are all Sunni Muslims;
b)at paragraph [84] (CB 218), the Tribunal said that it considered the fact that the Applicant married his wife (in 2009) in a Muslim ceremony in Lebanon “because they [were] both Muslims”;
c)paragraph [92] (CB 219) (which is extracted in full at [65] below) says nothing about the status of the Applicants as Muslims; and
d)paragraph [98] (CB 220) refers to a claim made by the Applicant’s representative that the Applicants fear persecution because of status as Sunni Muslims (evidently without a real understanding of the claim of the Applicants: see paragraph [99]). This claim was rejected by the Tribunal (CB 220 at [102]).
I can see no other paragraph of the Tribunal decision record which can be said to constitute a finding by the Tribunal that the Applicants were not former Sunni Muslims.
The Tribunal findings that there was not a genuine conversion arises from its reasoning that the religious activities that the Applicant engaged in, in Australia, were for the purpose of strengthening his case and, therefore, would be disregarded pursuant to sub-s.91R(3) of the Act. However, this reasoning is only relevant for the purpose of the Tribunal’s satisfaction regarding sub-s.36(2)(a) of the Act; not its consideration of sub-s.36(2)(aa) of the Act. These activities were required to be considered by the Tribunal in relation to the claim by the Applicants, that they would suffer significant harm because of their conversion to Jehovah’s Witness faith and because they were former Sunni Muslims.
There can be no doubt that the Tribunal rejected the Applicant’s claim regarding his introduction to the Jehovah’s Witness faith in Lebanon, including the existence and advice of a practicing Jehovah’s Witness lecturer. However, this does not bear upon the relevance or impact of the Applicant’s claimed religious activities in Australia, in so far as sub-s.36(2)(aa) of the Act is concerned.
The Minister’s submission that there was an anterior finding which effectively disposed of the Applicant’s claims to fear significant harm on return to Lebanon, because of their religious conversion and their status as former Sunni Muslims is, therefore, to be rejected.
I will now turn to the Tribunal’s consideration of the Applicant’ claims for the purpose of its statutory task in deciding whether they met sub-s.36(2)(aa) of the Act.
The Tribunal’s reasoning commences by repeating its earlier findings under sub-s.36(2)(a) of the Act, that it is not satisfied that the Applicant “is a genuine convert and that he has a well-founded fear of persecution for that reason” (CB 221 at [105]).
On its face, this statement can be taken to mean the Applicant is a convert, but that his conversion was not genuine. It is evident from the earlier reasoning of the Tribunal that the Tribunal is referring to the religious activities engaged in by the Applicant from 2012 onwards in Australia. It is also evident that the Tribunal found that the Applicant engaged in these activities to strengthen his case and thereby, correctly, disregarded the activities for the purpose of deciding whether the Applicant met the criterion in sub-s.36(2)(a) of the Act.
The Tribunal then proceeds to find, in a somewhat pithy paragraph, that the Applicant does not meet the criteria under sub-s.36(2)(aa) of the Act. The Tribunal commences at paragraph [106] of the decision record (CB 221), by stating “[o]n the available evidence…”, and then proceeds to state that it does not accept that there is a real risk that they will be subjected to significant harm in connection with their “alleged Jehovah’s Witness religion” on return to Lebanon.
The Tribunal’s reasoning leaves a reader (who is careful not to be attuned to the possibility of legal error) the task of:
a)identifying what was the available evidence relied on by the Tribunal; and
b)determining the meaning of the phrase “alleged Jehovah’s Witness religion.” Is this another way of saying the Applicants’ conversion to the Jehovah’s Witness religion was not genuine or simply a reference to the Applicants’ claims to have converted to a Jehovah’s Witness?
I will first consider the question of what evidence the Tribunal is referring to. First, it must be the Tribunal’s factual findings that, whilst the Applicant did not convert to or engage in the Jehovah’s Witness faith in Lebanon, he did engage in the faith in Australia. It might easily be said that the evidence is that, whilst in Australia he converted, but that his conversion was not genuine. Accepting this evidence or the factual findings, what is the basis for the Tribunal’s findings that there is not a real risk that the Applicants would suffer significant harm if they returned to Lebanon?
The reasoning in the Tribunal decision record that is relevant to the question of “real risk”, commences at paragraph [87] (CB 218), and culminates at paragraph [92] (CB 219), which is as follows:
The Tribunal has already found that it is only the first named applicant who has engaged in some ostensible Jehovah’s Witness activities. There is no more than a remote chance that Muslims from the Lebanese community in Australia who know the first named applicant would have observed his Jehovah’s Witness activities in Australia and that any of the applicants would be asked questions by members of his family or his in-laws or people from his Sunni community in Lebanon if they were to return to Lebanon. If this were to happen, the applicants could explain that they did not have a genuine interest in the religion and/or that they only engaged in these activities in order to stay in Australia. The Tribunal finds that both of these explanations would be truthful, that is, they would not be lying in order to avoid harm.
The meaning and relevance of this paragraph is not easily discerned. The Tribunal begins by stating it had earlier found the Applicant had engaged in “some ostensible Jehovah’s Witness activities”. It proceeds to state that there is no more than a remote chance that the Applicants would be asked by the Applicant’s relatives or members of the Sunni community about these activities. However, the Tribunal then proceeds to deal with what might happen if the Applicants were asked about these activities. This speculation seems to suggest that the Tribunal considered that there was more than a remote chance, perhaps even a “real risk”, that the Applicants may be questioned. If this is the case, as Edelman J observed, “was the Tribunal… considering whether the truthful explanation about conversion would endanger the appellants?” (CB 328 at [45]). Clearly, the Tribunal is referring, in that paragraph, to steps that the Applicants can take to “avoid harm”.
It is true that the Tribunal had stated in the previous paragraph that the Applicants would not engage in Jehovah’s Witness activities in Lebanon because of its finding relevant to sub-s.91R(3) of the Act. However, this does not overcome the clear and accepted evidence that the Applicant engaged in Jehovah’s Witness activities in Australia, nor does it overcome the Tribunal’s speculation about the explanations the Applicants might give to avoid harm if these activities came to the attention of the Applicant’s relatives in Lebanon or the Sunni Muslim community generally.
If, on the reasoning of the Tribunal, it was considering whether these explanations would or could endanger the Applicants, then there is clearly a disconnect in the reasoning between paragraphs [92] (CB 219) and [106] of the decision record (CB 221). That is to say, paragraph [106] of the Tribunal’s reasoning could not be said to be characterised by logical or rational findings.
On balance, I am satisfied that the reasoning of the Tribunal, in rejecting the Applicants’ claims that they fear significant harm arising from their religious conversion, is irrational and illogical. It was clearly critical to the Tribunal’s ultimate conclusion that it was not satisfied that the Applicants met the criteria of sub-s.36(2)(aa) of the Act.
I further note that the Tribunal’s use of phrases such as “genuine conversion”, “ostensible Jehovah’s Witness activities” and “alleged Jehovah’s Witness religion” served to obscure any finding that the Applicants were persons of the Sunni Muslim religion. Consequently, it can be said that the Tribunal made its ultimate finding on whether the Applicants met sub-s.36(2)(aa) of the Act because they were former Sunni Muslims, without probative evidence.
I am satisfied that, in the absence of any elucidation by the Tribunal of the available evidence that it relied on at [106], the Tribunal’s decision conclusion that the Applicants did not meet the criterion of sub-s. 36(2)(aa) of the Act can be said to be arbitrary or unjust.
Accordingly, I find the Tribunal’s decision in relation to the Applicants’ claims that they would suffer significant harm (within the meaning of sub-s.36(2)(aa) of the Act) because of their religious conversion and former Sunni Muslim religious status, was legally unreasonable.
Conclusion
For the reasons set out in this Judgment, writs will be issued quashing the decision of the Second Respondent and directing the Second Respondent to determine the matter according to law. An Order will also be made requiring the First Respondent to pay the Applicants’ costs.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 2 February 2017
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