MZZBT v Minister for Immigration - [2013] FCCA 462

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZBT v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 462

Catchwords:
MIGRATION – Independent Protection Assessor – reasonable apprehension of bias – unreasonableness – failure to give genuine and proper consideration.

Legislation:
Migration Act 1958 s.65

Cases Cited:
Goodwin v Commissioner of Police [2012] NSWCA 379
Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; [1987] 14 ALD 291
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; (2011) 282 ALR 685; (2011) 86 ALJR 14; [2011] HCA 48
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446; [2010] HCA 48
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16
Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507; (2001) 65 ALD 1; (2001) 178 ALR 421; (2001) 75 ALJR 679; (2001) 22(6) Leg Rep 2; [2001] HCA 17
NADH of 2001 v Ministerfor Immigration and Multicultural and Indigenous Affairs(2004) 214 ALR 264; [2004] FCAFC 328
Re Minister for Immigration and Multicultural Affairs v Durairajasingham (2000) 58 ALD 609; (2000) 168 ALR 407; (2000) 74 ALJR 405; (2000) 21(2) Leg Rep 2; [2000] HCA 1
Re Refugee Review Tribunal; Ex parte H(2001) 179 ALR 425; (2001) 75 ALJR 982; (2001) 9 Leg Rep 20; [2001] HCA 28

Applicant:

MZZBT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

IMOGEN SELLEY IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER

File number:

MLG 1312 of 2012

Judgment of:

Judge Riley

Hearing date:

3 May 2013

Date of last submission:

3 May 2013

Delivered at:

Melbourne

Delivered on:

13 June 2013

REPRESENTATION

Counsel for the Applicant:

Nola Karapanagiotidis

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Martin Smith

Solicitors for the First Respondent:

Sparke Helmore Lawyers

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Sparke Helmore Lawyers

ORDERS

The application filed on 18 October 2012 and amended on 6 February 2013 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1312 of 2012

MZZBT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

IMOGEN SELLEY IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a recommendation made by an Independent Protection Assessor. The assessor recommended that the applicant not be recognised as a person to whom Australia owes protection obligations.
The applicant is a citizen of Iran. He claimed that:
a)he had a well-founded fear of persecution by reason of an imputed political opinion;
b)he copied and distributed political material;
c)he had a compact disc copying business;
d)he was asked by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCCA 462
Decision Date: 13 June 2013

CaseChat Overview and Summary

This matter came before Judge Riley of the Federal Court of Australia. The applicant, MZZBT, sought judicial review of a decision made by the Minister for Immigration. The core of the dispute concerned the lawfulness of the decision-making process, particularly in relation to the assessment of the applicant's claims.

The legal issues before the Court included whether the decision-maker's reasoning was so illogical or irrational as to constitute jurisdictional error. The applicant also sought to rely on the High Court's decision in *Minister for Immigration and Citizenship v SZMDS*, but specifically on the dissenting judgment. The Court was required to consider the principles governing judicial review for unreasonableness and how they apply to administrative decision-making, particularly in the context of a satisfaction requirement under a statute.

Judge Riley considered the majority judgments in *SZMDS*, which clarified that for illogicality or irrationality to give rise to jurisdictional error, the decision must be one that no rational or logical decision-maker could arrive at on the same evidence. The Court noted that not every lapse in logic constitutes jurisdictional error and that courts should be slow to interfere. The Court also referred to principles established in *Michael Wilson & Partners Ltd v Nicholls*, which distinguish between apprehended bias and actual bias, and importantly, that the assessment of apprehended bias must be made objectively and cannot rely on the final judgment or reasons for judgment delivered after the decision. The Court indicated that these principles apply equally to administrative decision-makers as they do to curial proceedings.

The Court ultimately found that the applicant had not demonstrated that the decision-maker's reasoning was so illogical or irrational as to constitute jurisdictional error. The Court applied the principles from *SZMDS* and *Michael Wilson* to conclude that the applicant's arguments did not meet the threshold for judicial review on the grounds of unreasonableness or apprehended bias.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant referred to the recent High Court decision dealing with unreasonableness, Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, ; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16 but relied on the dissenting judgment. Crennan and Bell JJ, in the majority, said:129.It can be acknowledged that the contemporary invocation of "illogicality" or "irrationality" as a basis for judicial review may well have first emerged in Australia, as intimated by Gleeson CJ in S20, as a reaction to the ouster of the review ground of "Wednesbury unreasonableness" in immigration law. Equally it may be that the development of "irrationality" as a basis for judicial review in England grew out of dissatisfaction with the inherent circularity of the Wednesbury test and the implicit suggestion in Wednesbury that there were degrees or grades of unreasonableness. Be that as it may, accepting that an allegation of "illogicality" or "irrationality" must mean something other than emphatic disagreement as explained above by reference to Eshetu and S20, and also accepting that a demonstration of bona fides will not save an illogical or irrational decision or finding on a jurisdictional fact as stated in SGLB, how do "illogicality" and "irrationality" fit with the clearly related body of law concerned with error, particularly jurisdictional error, in respect of reasoning which is "clearly unjust", "arbitrary", "capricious" or "Wednesbury unreasonable"? 130.In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case. (emphasis added) (citations omitted) Heydon J, also in the majority, said at [86]:The difference between the Federal Court and the Tribunal may be put thus. The Federal Court thought that the first respondent's explanation for not seeking asylum in the United Kingdom was "perfectly plausible". There are pejorative meanings of the word "plausible", but they are not the meanings which the Federal Court was conveying. The Federal Court was saying that the explanation was "capable of being believed" or "apparently believable". The Tribunal, however, did not believe it. Something can be capable of being believed without actually being believed. For the Tribunal member to withhold belief from something which is "perfectly plausible" but which she did not find to have been satisfactorily explained and which she found not to be probable is not illogical.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In that case, Gummow A-CJ, Hayne, Crennan and Bell JJ said at [67] and [68]:[67] As pointed out earlier in these reasons, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been "the crystallisation of that apprehension in a demonstration of actual prejudgment" … impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.[68]The Court of Appeal was wrong to take account as it did of the reasons for judgment published by Einstein J after the trial in deciding whether in this case there was a reasonable apprehension of bias. … (emphases added) Basten JA explained in Goodwin v Commissioner of Police [2012] NSWCA 379 at [15] the effect of Michael Wilson as follows: The test of reasonable apprehension of bias, formulated by reference to how a fair-minded bystander might view the matter before determination of the case, cannot rely on the final judgment: Michael Wilson & Partners Ltd v Nicholls[2011] HCA 48; 244 CLR 427 at [67] (Gummow ACJ, Hayne, Crennan and Bell JJ). Where a party seeks to rely upon a final judgment, following an earlier recusal application based on a reasonable apprehension of bias, it will usually be necessary to plead actual bias: Michael Wilson & Partners at [65] and [68]. Actual bias was not relied upon in the present case and it would be necessary, therefore, to put to one side any concerns arising from the flaws in the approach adopted by the primary judge, as revealed in the final judgment, in order to address the challenge based on apprehended bias, raised at the commencement of the second hearing below. … Neither Michael Wilson nor Goodwin concerned a decision of an administrative decision maker. However, the point made in those cases seems to apply equally to both curial and non-curial proceedings. Consequently, it appears that the High Court in Michael Wilson overturned previous authority to the contrary. I proceed on the basis that I should not look at whether the reasons for the recommendation:somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias … .