SZHXE v Minister for Immigration
[2007] FMCA 1050
•6 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHXE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1050 |
| MIGRATION – Review of a Refugee Review Tribunal decision – Refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 483A |
| Applicant M153 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 820 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 Applicants S1266 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1771 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Minister for Immigration and Ethnic Affairsv Pochi (1980) 31 ALR 666 Minister for Immigration and Multicultural Affairsv SGLB (2004) 204 ALR 12 Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 Minister for Immigration and Multicultural and Indigenous Affairs v W306/01A [2003] FCAFC 208 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 SZAPC v MIMA [2005] FCA 995 VWAL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 266 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 W389/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 432 |
| Aronson, M, Dyer B, Groves M, Judicial Review of Administrative Action (3rd Edition), Thomson Book Company, 2004 |
| Applicant: | SZHXE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3760 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 3 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 July 2007 |
REPRESENTATION
| Counsel for Applicant: | Mr B Zipser (on direct access basis) |
| Counsel for the First Respondent: | Mr J A Potts |
| Solicitors for the First Respondent: | Ms S Kantaria of Clayton Utz |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration & Citizenship’.
The application filed on 20 December 2005 is dismissed.
The applicant is to pay the first respondent's costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3760 of 2005
| SZHXE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZHXE”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Act, filed in the Sydney Registry of the Federal Magistrates Court of Australia on 20 December 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 8 November 2005 and handed down on 1 December 2005. The Tribunal decision affirmed a decision of a delegate of the first respondent made on 29 May 1997, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
A Court Book (“CB”) prepared by the first respondent's solicitors was filed and served on 22 February 2006. I have marked it Exhibit “A” and it was read into evidence.
Background
The Tribunal decision of Ms P Pope, reference N05/51537, provides the following background information:
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australian on 7 August 1996. On 5 September 1996 he lodged an application for a Protection (Class XA) Visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (the Act). On 29 May 1997 a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refused to grant a protection visa. DIMIA renotified the applicant on 8 June 2005 of the decision taken in May 1997 and on 22 June 2005 the applicant applied for a review of that decision.(CB 83)
The following information is provided in the Tribunal decision in respect of the applicant’s claims:
According to a statement provided by the applicant with his application for protection visa he believes that if he returns to China he will suffer torture and inhuman punishment and will be deprived of freedom of thought because of his political views and because of his religious belief in Buddhism. The applicant refers to a Chinese Government publication in October 1995 of the document which he calls “The Policy regarding illegal Organisations and Their Members”. This document categorises illegal and oppositional organisations: those in category two are those who have been influenced by oppositional organisation and joined or participate in illegal activities. Those in category three are persons who participate in the 1989 political riot. He said that it is a policy of the Chinese Communist party to brainwash these people and punish them severely if they do not confess and willingly undergo brainwashing.(CB 85)
Tribunal's findings and reasons
A summary of the Tribunal’s findings is contained in the first respondent's written submissions prepared by Mr Potts and I adopt paragraphs 8 to 10 of those submissions:
8. The Tribunal was prepared to accept that the applicant personally supported the ideas and the political protest activities of student activists in Shanghai in June 1989. The Tribunal accepted that the applicant witnessed some of the student demonstrations and activities as he returned from work in June 1989. Beyond this, the Tribunal did not accept that he was active in the pro-democracy movement, expressed support publicly for the pro-democracy movement, or came to the adverse attention of his employers or the authorities for that reason after the events of June 1989.(CB 97.2)
9. The Tribunal found that the applicant’s evidence in relation to significant aspects of his claims was inconsistent and unconvincing and concluded that he was not a credible or reliable witness.(CB 97.5) The Tribunal contrasted the oral evidence he gave with that the claims in the written statement handed up at the hearing.(CB 97.5)
10. In short, the Tribunal did not regard significant aspects of the applicant’s claims as credible.
Application for review of the Tribunal's decision
On 20 December 2005, the applicant filed an application for review under s.39B of the Judiciary Act. At the commencement of the hearing, Mr Zipser, for the applicant, sought leave to file an amened application. There was no objection from Mr Potts and leave was granted. The grounds in the amended application are as follows:
1. The Tribunal did not accept that the applicant came to the adverse attention of his employer or authorities after the events of June 1989 on the basis that it was “implausible that if the applicant had come to such adverse attention in his company he would have been able to move subsequently to other employment where he earned significantly more money”. The Tribunal fell into jurisdictional error in making this finding.
2. The Tribunal rejected the applicant’s claims principally because of inconsistent evidence he gave concerning the date and details of cessation of his employment with the Shanghai Taxi Company. The Tribunal fell into jurisdictional error in finding that the applicant’s evidence was inconsistent and, even if the applicant’s evidence was inconsistent in some respects, in rejecting all the applicant’s claims principally on this basis.
Submissions and reasons
The first ground of the amended application relates to the applicant’s claim that when he expressed support for the June 1989 pro-democracy protest in China, he was “demoted to menial” duties.(CB 87, 91)
Mr Zipser submits that the Tribunal found in response to this claim:
(T)he Tribunal does not accept that he was active in the pro-democracy movement, expressed support publicly or came to the adverse attention of his employers or the authorities for that reason after the events of June 1989. The Tribunal does not accept that because of his encounter with the demonstrations in early June 1989 and comments which he later made about their cause, the applicant was required to attend “politic study class”. The Tribunal finds it impossible that if the applicant had come to such an adverse attention in his company he would have then been able to move subsequently to other employment where he earns significantly more money…[emphasis added](CB 97)
Mr Zipser submits that the applicant takes issue with this finding as follows:
a)The Tribunal reasoning process begs the following questions:
i)Did the country information indicate that whenever a person was “warned to be careful” by the Chinese police (CB 91.5), they would not obtain other employment with higher wages?
ii)Alternatively, was there country information indicating that if a person was required to attend “politic study classes”, they would not be able to retain employment?
iii)If the Shanghai Taxi Company was a private company, could the authorities prevent someone from being employed there?
b)These questions were left unanswered because the Tribunal did not refer to or rely on any country information in support of its finding.
c)In the absence of the Tribunal referring to or relying on country information and in light of the ambiguity of its reasoning process, it is open to the Court to conclude that there is no country information.
Mr Zipser submits that the Tribunal is required by s.430 of the Act to set out the reasons for its decision and explain why it makes certain findings of fact. Mr Zipser contends that because the Tribunal did not refer to any evidence or country information in support of the finding referred to at [8] above, it committed jurisdictional error: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
First, Mr Zipser submits that the Tribunal did not discuss the issue he raised at [9(a)(iii)] above in respect of the Shanghai Taxi Company. Mr Zipser acknowledges that while the Tribunal is not required to address every specific point, the Tribunal made an assertion without supporting evidence.
Secondly and in the alternative, Mr Zipser submits that the Tribunal’s finding was “irrational, illogical and not based on finding or inferences of fact supported by logical grounds”: Minister for Immigration and Multicultural Affairs v SGLB (2004) 204 ALR 12 at 38; SZAPC v Minister for Immigration and Multicultural Affairs [2005] FCA 995 at [58]. Mr Zipser also relies on the decision of SZAPC v Minister for Immigration and Multicultural Affairs per Madgwick J at [45]-[46], [57]-[58]:
45. For completeness, consideration will be given to the applicant’s argument that the Tribunal satisfaction that ‘independent country information indicates that the situation… has improved’ was either contrary to independent country information referred to and relied upon by the Tribunal or at least not supported by that information.
46.…it was submitted, however, that where the actual basis for that conclusion was based on intermediate findings for which there was no evidence, this nonetheless constitutes jurisdictional error.
57.Thus it seems to me that the position arrived at in the High Court may be summarised in the following way:
1. a ‘no evidence’ attack will only suffice as such if it can be said that there is an actual ‘absence of any foundation and fact for the informant of the condition upon which, in law, the existence of the power that pends’, that is, is there no evidence to support a finding of a jurisdictional fact.
2. nevertheless, there are constitutional minimal standards of judicial review and the power of the decision maker such as the Tribunal are not to be exercising suspiciously – not ‘according to honour’, but accordingly to law.
3. It is a critical legal requirement that the determination should be not be able to be characterised as ‘irrational, illogical and not based on findings or inferences of fact supported by logical grounds’. My own short hand paraphrase of this is that, in that minimal sense, the determination must be a rational one.
4. If that critical requirement is not met there will be jurisdictional error sufficient to warrant the issue of constitutional writs.
58.To my mind it is plain that, if an important finding has been made without evidence to support it, that circumstance may be relevant to the question of whether the determination exhibits such rationality. A fortiori, when a crucial finding to be determined has been made without evidence to support it, there will be a very raw question whether, to that extent, the determination is not objectively arbitrary.
Mr Zipser submits that the applicant claimed that one or two events occurred to him in relation to the persecution, however the Tribunal dismissed the claim in a single sentence: at [8] above. Mr Zipser contends that the no evidence finding SZAPC was the ratio decidendi of that decision, and, as the facts in this matter are similar, SZAPC is binding on this Court.
The second authority Mr Zipser relies upon in respect of this issue is W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [37] per Lee J. Mr Zipser submits that although Lee J was in the minority in that decision, the principle His Honour stated was supported by the majority of the Court. In that case, the Full Court was critical of the Tribunal’s use of the term “implausible”. Mr Zipser argues that a finding of implausibility can be overturned on review because it can be an arbitrary or irrational finding.
W148/00A at [37] per Lee J states:
37.If material not inheritably improbable is dismissed by a decision-maker, who relies upon no more than the assertion that the material is ‘implausible’ or ‘not credible’, such an act by the decision-maker may attract judicial review under the Act. That is to say, in some cases a bare statement by the decision-maker that a claimed circumstance is ‘not credible’ or is ‘implausible’ make cloak the failure of the decision-maker to address and resolve a material question of fact and therefore fail to take into account a relevant consideration; or suggest that the decision-making power was exercised arbitrarily or capriciously; or that a finding on a material question of fact was irrational, not being supported by probative material or logical grounds; any of which may demonstrate “jurisdictional error” and a failure to perform the decision-making function reposed in the decision-maker by Act.
W148/00A at [67] per Tamberlin and R D Nicholson JJ states:
67. There is one aspect of the approach taken by the decision-maker in the present case which give us some cause for concern. It is this. Where the question of credibility is determinative of a tribunal decision, to simply assert that the tribunal considers the applicant’s account to be “implausible” or “highly unusual” does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments rather than findings. The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant.
Mr Zipser contends that if this Tribunal had given other reasons for rejecting the applicant’s claim of the “June 1989 issue”, then even if the Tribunal had found the assertion implausible, this would not result in jurisdictional error.
Thirdly, Mr Zipser submits that it “is an ordinary requirement of natural justice that a person bound to act judicially based his decision upon material which tends logically to show the existence or non-existence of facts irrelevant to the issue to be determine”: Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 689 per Deane J. In the present case where the Tribunal did not identify any evidence on which it based its decision, the requirements of natural justice were breached. Mr Zipser contends that s.422B of the Act is limited in its application to “the natural justice hearing rule”. The rule identified by Deane J in Pochi is not concerned with a “hearing” but the decision-making process which follows the hearing. Mr Zipser submits that in Pochi the decision-maker relied on tenuous hearsay evidence to make crucial findings of fact adverse to a person about to be deported. A number of courts have expressed concern about a decision-maker so doing, even when the rules of evidence do not apply.
Pochi was an appeal from an Administrative Appeals Tribunal decision reviewing a decision of a delegate of the Minister for Immigration. Justice Deane stated at 682:
On the hearing before the Tribunal, evidence was led from a member of the New South Wales Police Force…which was relied upon by the Minister as tending to implicate Pochi in the growing of Indian hemp at places other than Colleambally and to assign him to more important role than that of farm labourer in both the activities at Colleambally and other illegal operations. The evidence so led was vague. It consisted, in essence, of suspicion, opinion and hearsay.
Justice Deane then commented on the decision of the president of the Tribunal, Brennan J, to reject the evidence:
In the result, he declined to accept the evidence led in confidence to which reference has been made as constituting a proper or adequate basis for a finding of any involvement of Pochi, beyond the facts implicit in his conviction, in illegal drug activities.
His Honour then commented on the evidence:
…that evidence which is hearsay “invariably lacks the cogency inherent in evidence given by a person who has personal knowledge of the facts to which he deposes”.(Pochi at 683)
Mr Zipser submits that Brennan J was concerned about the reliability and probative value of the evidence in question. Mr Zipser submits that although this case is not about unreliable evidence, it is about no evidence.
Mr Potts submits that the Tribunal summarised the applicant’s claims as follows:
Essentially the applicant claims that he has experienced harassment and poor treatment since June 1989 when he expressed his support for the student democracy movement. He claims that his wife also lost her job because of his matters. He also made earlier claims that he fears harassment on account of his Buddhist beliefs.(CB 96-97)
The Tribunal then analysed these two claims dealing first with the fear of harm because of an imputed political opinion. Mr Potts submits that the Tribunal was prepared to accept that the applicant may have personally supported the ideals and activities of the students in Shanghai in June 1989, and that he may have witnessed student demonstrations and activities returning from work at that time. However, it did not accept that he was publicly active in the pro-democracy movement or came to the adverse attention of his employers or the authorities. It rejected as implausible that he had come to the attention of his company and the authorities but was able to move on to other employment with increased pay.
Mr Potts submits that s.65 of the Act requires the Minister or his/her delegate to reject a visa application if the level of satisfaction specified in the Act is not reached. If the Tribunal cannot reach that state of satisfaction, it is duty bound and legally obliged to refuse the application. Mr Potts submits that this happened in this case and the explanation is in the Tribunal decision.(CB 97-98)
Mr Potts submits that after the implausibility finding considered above, the Tribunal found that there was no evidence that the applicant was involved in the pro-democracy movement since 1989, nor did he say that he would continue to be interested in the cause if he returned to China. The Tribunal concluded that the applicant was not a credible or reliable witness and noted the discrepancies in his evidence. This Court cannot determine whether or not there was inconsistencies but rather whether the Tribunal acted properly and if it was open for it to make that finding.
The Tribunal then considered evidence from the applicant said to be cooperative and then concluded:
Even if the Tribunal were to accept these statements on their face, they do not overcome those problems in the applicant’s evidence which have been identified and discussed in detail.(CB 98.4)
The Tribunal then concluded that the applicant’s evidence was neither truthful nor reliable.
The Tribunal then considered a number of significant points. The first was that after the applicant lost his job, he did not have full time employment but was had access to a considerable sum of money to obtain a visa to Australia and travel to Thailand in June 1996. The Tribunal found this unbelievable, especially together with all the other problems with the evidence. The Tribunal also found curious why the applicant did not avail himself of the opportunity to escape from China when he was in Thailand. It found implausible his explanation that he was too timid and afraid to execute an escape plan. Mr Potts submits that in totality, the Tribunal was unable to accept the applicant as a witness of credit and was unable to be satisfied of the truth of his claims. Consequently, s.65 of the Act mandated a refusal of the application.
Mr Potts submits that the applicant challenges the Tribunal’s implausibility finding on three separate bases. That:
i)It had no evidence.
ii)It was irrational, illogical and not based on findings or inference of fact supported by logical grounds.
iii)A person bound to act judicially must base his/her decision on material logically shows the existence or non-existence of facts relevant to the issue to be determined, thus complying with natural justice.
Mr Potts further submits that “no evidence” as a ground of review only applies when a decision-maker makes a positive factual finding in order to reject an application or to found an adverse decision. It does not operate when the decision-maker rejects a claim. As the decision-maker can use his/her ordinary experience or logic to base its rejection of claim, it does not need to locate country information in support of its finding.
In support of that contention, Mr Potts referred to VWAL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 266 which reviewed a Tribunal decision about a mother who claimed fear of persecution on the grounds of her imputed political profile as a supporter of the Tamil Tigers. Justice Ryan at [21]-[27] said:
21. In Minister for Immigration and Multicultural Affairs v Eshetu (supra), Gleeson CJ and McHugh J, after identifying, at 627, the question as being "whether the Tribunal was satisfied that Mr Eshetu’s fear of persecution was well-founded," continued, at 629;
‘... The Tribunal concentrated its attention on Mr Eshetu's explanation of his fears. Having rejected that explanation, it did not embark upon a search for some alternative explanation which he did not advance. Once again, different minds could form different views about the reasonableness of that approach. However, it involves no error of law. The ultimate question was whether the Tribunal was satisfied about something. The approach adopted by the Tribunal does not manifest a legally erroneous view as to what it was about which it needed to be satisfied. For the Tribunal to conclude that, although it was satisfied that Mr Eshetu feared persecution, an examination of the reasons he advanced as to why he held that fear failed to satisfy the Tribunal that the fear was well-founded, does not reflect any misunderstanding as to the meaning of the concept of a well-founded fear.’
22. That passage makes it clear, I consider, that it is not a legal or jurisdictional error for the Tribunal, in evaluating the assertions of fact relied on by an applicant as giving rise to a well-founded fear of persecution, to reject one or more of those assertions as "unclear", "incoherent" or "implausible". That is so even if there is no identifiable piece of evidence which tends against acceptance of the relevant assertion. As Gleeson CJ and McHugh J indicated, in the passage just quoted, different minds may form different views about issues which arise for determination on the way to resolving the ultimate question. The fact that a reviewing Court might disagree, even strongly, with a conclusion reached by the Tribunal on a question on the way to determining the ultimate question does not import jurisdictional error on the part of the Tribunal.
23. It is true that in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 231 a Full Court of this Court observed, at [19];
‘ ... 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: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357. If the decision of the Tribunal was "Wednesbury" unreasonable 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) 198 ALR 59 (‘S20’) at 62, 67, 76, 90-91.’
24. However, by that passage I take their Honours to mean that a positive finding, in the absence of any supporting evidence, of the existence of a fact which is a critical step in deciding the ultimate matter as to which the Tribunal has to be satisfied, may signify jurisdictional error.
25. Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference — — in other words, the particular inference is reasonably open — — even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
26. The fact that the rejection may appear to a reviewing court to be illogical it is not to the point.
27. It follows that the impugned finding of fact, even if illogical or uranous does not entail jurisdictional error in the sense in which that concept was explained by McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.
In reference to VWAL, Mr Potts submits that illogicality or irrationality are not synonymous with jurisdictional error and therefore not in themselves grounds for judicial review.
Applicant M153 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 820 at [15] per Sundberg J states:
15 Before proceeding to the Tribunal’s other reasons that are under attack, it is convenient to refer to some authorities on "no evidence" or "no information" submissions in the context of jurisdictional error. In SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 at [18] to [20] a Full Court said:
"...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."
16 In VWAL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 266 at [24], after quoting the second above paragraph from SFGB, Ryan J said:
"by that passage I take their Honours to mean that a positive finding, in the absence of any supporting evidence, of the existence of a fact which is a critical step in deciding the ultimate matter as to which the Tribunal has to be satisfied, may signify jurisdictional error."
18 The question then is whether any of the impugned reasons that caused the Tribunal to reject the appellant’s account of the December events involves a positive finding, in the absence of any supporting evidence, of the existence of a fact which is a critical step in the Tribunal’s ultimate conclusion.
Justice Sundberg noted that the applicant relied on the observations of Madgwick J in SZAPC, which is also relied upon by Mr Zipser in his submissions.
I believe that the principles in VWAL and Applicant M153 of 2004 are similar to the question before this Court. I note the claims have been put before the Tribunal by the applicant, who then believed them to be inherently improbable. In the absence of further significant material, that finding was open to the Tribunal. The “no evidence” ground cannot be sustained.
In respect of the second limb of the first ground, being irrationality or illogicality, Mr Potts submits that there was nothing illogical in what the Tribunal which can be supported through its findings. Mr Potts referred to Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 per Sundberg, Emmett and Finkelstein JJ at [34]:
34 The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. That is because, before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a different conclusion. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, there is no error of law simply in making a wrong finding of fact. Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law. A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place - Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6.
Mr Potts acknowledged that Al-Miahi, like W148/00A, was decided prior to the privative clause amendment to the Act. However, subsequently authorities have made clear that the principle in both cases remain good law. In W389/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 432 at [46]-[47], Lee, RD Nicholson, Finkelstein JJ state:
46 In Bond (at 355-357) Mason CJ pointed out that, to that point, the High Court had not adopted English authorities which suggested that findings or inferences of fact per se were reviewable for error of law under the rubric of "want of logic".
47 None of the foregoing is controversial. If the material before the decision-maker provides a reasonable basis for a finding made, or an inference drawn, no error of law can be said to arise in respect of the finding made, or inference drawn. However, experience dictates that want of logic or rationality in making findings, or drawing inferences, of fact is likely to point to, or reveal, the existence of an error of law.
Mr Potts submits that above is consistent with the line of authority in Al-Miahi and W148/00A.
Minister for Immigration and Multicultural and Indigenous Affairs v W306/01A [2003] FCAFC 208 at [46] per French, Hill and Marshall JJ states:
46 Whether considered in the light of Pt 8 of the Migration Act as it stood prior to October 2001 or the Act as it stood after that date, there is a substantial divide between irrationality or want of logic in reasoning on the one hand and reviewable error on the other.
Mr Potts submits that the statutory amendment has not altered the effect of Al-Miahi.
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [131] and [134]-[135] per Allsop J states:
131 The precise extent of the role of factual error and want of logic and irrationality in the reaching of factual conclusions and state of satisfaction is not entirely clear: Applicant S 20 at [8] and [9] per Gleeson CJ and [34]-[37] per McHugh and Gummow JJ.
134…referred to a number of Full Court decisions of this Court which have either rejected irrationality or illogicality as a separate ground of jurisdictional error, or dealt with Applicant S 20 in (if I may be permitted to say without intending the slightest disrespect to the High Court or the Full Courts in question) a somewhat cautious manner.
135…The Tribunal was required to reach its state of satisfaction in a reasoned fashion (even if, for the purposes of this discussion, exhibiting a degree of illogicality). It was obliged not to act capriciously, that is, it was obliged not to reach an opinion arbitrarily or by whim or, with the exception of proper credit findings, by intuition.
Applicants S1266 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1771 at [12]-[13] per Bennett J states:
12…acknowledges that mere illogical reasoning on the part of the Tribunal is not sufficient to attract jurisdictional error (Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at [34]).
13 In NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [136]–[137], Allsop J (with whom Moore and Tamberlin JJ agreed) provided some elucidation of the analysis to be undertaken in dealing with an allegation of illogicality. As his Honour pointed out, perfect logicality is a standard not necessarily achieved in the reasoning process of many decision makers; indeed, illogicality may highlight the understanding of how an error occurred within jurisdiction. There must, of course, be a process of reasoning.
Mr Potts submits that the above authorities indicate that it is insufficient to claim that a decision is illogical without identifying the error associated with the illogicality. I agree with the submissions made by Mr Potts that in this matter, the error is not identified and the second limb of the first ground cannot succeed.
In respect of the third limb of the first ground, Mr Potts contends that the Tribunal decision did not lack logic. The material on which the Tribunal member based its finding of implausibility was open to it.
Mr Potts then referred to Aronson, M, Dyer B, Groves M, Judicial Review of Administrative Action (3rd Edition), p.370 which states:
There are two traditional rules of natural justice. The hearing rule requires the decision-maker to hear a person before making a decision effecting the interests of that person. The bias rule provides for disqualification of a decision-maker where circumstances raise a doubt as to that decision-maker’s impartiality. These rules can be described as procedural, in a broad sense, in that they address the manner in which a decision is made, and not the merits of the decision itself. The review in Court is concerned with the fairness of the procedure adopted, not the fairness of the decision produced by the procedure.
Mr Potts submits that the above statement has been reinforced in the recent High Court decision of Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 at [14] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ:
14 In the courts below much emphasis was given to the Tribunal's statement, in its reasons, that it gave no weight to the letter or its contents. This statement was treated as inviting two questions: was the statement to be taken at face value and, if it was, could the letter nonetheless have had some influence upon the outcome of the matter? As these reasons will show, it is not useful to begin the inquiry about procedural fairness by looking to what the Tribunal said in its reasons. Rather, as procedural fairness is directed to the obligation to give the appellant a fair hearing, it is necessary to begin by looking at what procedural fairness required the Tribunal to do in the course of conducting its review.
Judicial Review of Administrative Action, p.372 then states:
A more recent line of authority, drawing on statements by Lord Diplock and Deane J, identifies another requirement of natural justice which is not procedural in the narrower sense described above. This is a requirement that decisions be based upon logical probative and relevant material, effectively importing into natural justice a level of review for factual error.
The suggestion that a requirement of logically probative material forms part of natural justice has not been endorsed by the High Court, however several judges appear to be moving to that view. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant s120/2002 Kirby J (in dissent) and Gleeson CJ both drew on this authority to support a conclusion that, in appropriate circumstances, irrationality or illogicality may provide a basis for a review.
Mr Potts submit that s.422B of the Act reflects the traditional dichotomy between the hearing rule and the bias rule. Division 4 of Part 8 of the Act does not exclude the operation of the common law bias rule. Mr Potts argues that Mr Zipser’s reliance on the rules of natural justice must fail with regard to the hearing rule. If it is not part of the rules of natural justice then s.422B no longer assists, however if Mr Zipser relies upon “want of logic” or irrationality, then that must also fail.
Mr Zipser acknowledges that s.422B applies to the present case even though the applicant lodged an application for a protection visa before its introduction. However, by the time that the applicant applied to the Tribunal for review in 2005, s.422B had been enacted for a number of years. Mr Zipser also acknowledges that s.422B applies to hearings including issues such as the right to attend and put one’s case orally to the Tribunal. Mr Zipser did suggest that an adoption of Deane J’s approach in Pochi about the rules of procedural fairness causes s.422B to not apply to the present case. I then gave Mr Zipser leave to file further submissions on this issue. As I have received no new submissions, I proceeded on the assumption that the distinction drawn by Mr Zipser was not pursued. I proceeded on the basis that s.422B applies to this case.
Therefore, I am satisfied that the argument and authorities relied upon by Mr Potts are correct. As a consequence, the third limb of the first ground cannot be sustained. With all three limbs unsuccessful, the first ground of the amended application must fail.
In respect of the second ground, Mr Zipser summarises the Tribunal’s findings regarding inconsistent evidence:
a)The Tribunal rejected the applicant’s claim concerning events shortly after June 1989.(CB 97.2-97.4)
b)The Tribunal found that the applicant’s evidence inconsistent and unconvincing and concluded that he was not a credible or reliable witness.(CB 97.5)
c)The Tribunal said that this was due to “inconsistent evidence” about dates and the circumstances surrounding the end of his employment with the Shanghai Taxi Company.(CB 97)
d)The Tribunal rejected most of the applicant’s claims.(CB 98.1-98.4)
e)The Tribunal considered “other aspects of the applicant’s claim which suggest that the applicant’s evidence is neither truthful nor reliable”.(CB 98.5-98.8)
Mr Zipser submits that a fair reading of the Tribunal’s findings indicate that the principle reason it rejected the applicant’s claims was for the reason listed at [44](b) above. Mr Zipser submits that the evidence was as follows:
a)The applicant gave to the Tribunal a written statement at the commencement of the hearing, which explained the incident that occurred on 30 September 1995. The applicant also said that “under pressure I was fired again by the Company”. However he did not say when he was fired by the company.(CB 86.8-88.8)
b)The applicant stated that from 1989 to 1996 he worked as a driver for the Shanghai Taxi Company (CB89.5).
c)In response to a question about when he was dismissed from the company, the applicant first said “that it was about one or two months after the events he had spoken about”.(CB 92.2) He later said that his employment ceased in January or February 1996.(CB 92.5). He explained that during this period “he could not go to work for some time because of injuries he sustained” when he was beaten on 30 September 1995.(CB 92.2)
Mr Zipser submits that the applicant’s evidence was not inconsistent and there was no basis for the Tribunal to find it so.(CB 97.9) Alternatively, it is unfair (and may constitute apprehended bias) for the Tribunal to dismiss the applicant’s claim on the basis of small inconsistencies between evidence he gave in 2005 and what occurred in 1995. It is submitted that there is no evidence to support the Tribunal finding that the applicant’s evidence was inconsistent: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Further the Tribunal’s findings were irrational, illogical and not based on findings of inferences of fact supported by logical grounds: Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12 at [38]; SZAPC v Minister for Immigration and Multicultural Affairs [2005] FCA 995 at [58].
In response to the second ground, Mr Potts submits that the Tribunal decision dealt with these issues at length.(CB 97-98) Mr Potts argues that if this Court considers whether there were minor inconsistencies within the decision, it becomes a impermissible merits review. The only question that should be before the Court is whether the inconsistencies were open to the Tribunal on the evidence.
Mr Potts contends that the it is for the Tribunal to decide whether it would allow some latitude in reviewing events which took place 10 years prior to when the evidence was taken. Similarly, it was open to the Tribunal after taking oral evidence from the applicant to conclude that it was not satisfied. Further, the dates in question were significant because they related to major events which would have had a profound impact on the applicant and it was not unreasonable to expect that they would be prominent in his memory.
I accept the submissions of Mr Potts that the Tribunal’s reasons should be viewed as a whole and in the context in which they were considered. The Tribunal was unable to accept the applicant’s evidence because the inconsistencies related to issues of significance, resulting in the Tribunal’s lack of satisfaction as to the veracity of the applicant’s claims. I am satisfied that this ground of review cannot be sustained.
Conclusion
I am satisfied that none of the grounds contained in the amended application can be sustained and consequently the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 6 July 2007
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