SZNPG v Minister for Immigration and Citizenship

[2011] HCATrans 135

[2011] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S156 of 2010

B e t w e e n -

SZNPG

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

FRENCH CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MAY 2011, AT 12.16 PM

Copyright in the High Court of Australia

MR B.D. O’DONNELL:   If it please your Honours, I appear for the applicant.  (instructed by the applicant)

MR S.B. LLOYD, SC:   If the Court pleases, I appear with MR T. REILLY for the first respondent.  (instructed by
DLA Piper Australia)

FRENCH CJ:   There is a submitting appearance for the second respondent.  Yes, Mr O’Donnell.

MR O’DONNELL:   Your Honours, the grant of special leave in this case would give this Court an opportunity to clarify two areas of administrative law doctrine.  The first is, what exactly is required for an administrative decision‑maker to have considered a matter he or she is obliged to consider?  This is what is sometimes is referred to as the proper, genuine and realistic consideration of point, although that verbal formulation has come in for some criticism.  The second question relates to this Court’s doctrine on the requirement that a decision‑making process not be irrational, illogical or based upon findings or inferences of fact not supported by logical grounds.  To understand how those issues arise it is necessary to look at the error that the applicant says the Tribunal fell into. 

It was an essential element of the applicant’s claim to be entitled to a protection visa that he had been baptised as a Christian.  His claims could be put in point form this way.  He had been baptised as a Christian, he remained a devout Christian, he proselytised on behalf of Christianity in India and he had been persecuted for that proselytisation.  An essential element of the Tribunal’s reasoning towards its conclusion that the applicant was not entitled to protection was that it rejected that he had ever been baptised.  The Tribunal said that he had never been baptised and on that basis he was not a Christian.  On that basis he did not proselytise and on that basis he could never have been persecuted for proselytising.  So the Tribunal’s reasoning depends critically on this finding as to whether or not the applicant had ever been baptised.

Before it made its final decision, the Tribunal put a number of concerns to the applicant in the letter that the Tribunal characterised as a 424A letter, but I think we can take it as read that it was a 424 letter given this Court’s doctrine as to what information means.  That letter pointed out what the Tribunal perceived to be inconsistencies in the applicant’s evidence to the delegate as against his evidence to the Tribunal as to when he had been baptised.  It also expressed concerns about the extent of his knowledge of Christian doctrine and practice particularly as it applied to baptism and the Baptist Church in India. 

The letter sought the applicant’s response to those concerns and in response the applicant sent two documents to the Tribunal, one of which was a baptism certificate which was consistent with his claim to have been baptised in Hyderabad at around the age of 15.  One thing that I have noticed is that the application book, which was prepared before I came into the matter, does not include a copy of that baptism certificate.  I have copies if the Court wants to see it, but I do not think there is any dispute as to what is in it.

FRENCH CJ:   At the very least, it is a purported baptism certificate.

MR O’DONNELL:   Yes.  I mean, as I said, I can hand up copies if the Court wants to see it but I do not think there is any dispute about it.  In its reasons for decision the Tribunal repeated the concerns that it put in the 424 letter regarding the applicant’s oral evidence and then – and this appears at appeal book page 10 in paragraph 35 – it said:

This means that the Tribunal is not satisfied that the applicant is Christian or has been baptised.  The Tribunal has considered the baptism certificate given its concerns with the applicant’s knowledge of his own baptism, it is not prepared to give this document sufficient weight to overcome its concerns with the applicant’s evidence.

One would expect a finding that the applicant had never been baptised to imply a finding – or one might expect to imply a finding that the baptism certificate was either a fabrication or did not apply to the applicant; it applied to someone of the same name.  There is no reasoning to that effect explicitly set out in the Tribunal’s decision.  Indeed, the way in which the Tribunal treated the certificate is in inconsistent with that inference because had the Tribunal concluded implicitly that the certificate was a fabrication, one would have expected the Tribunal to have given it no weight or, indeed, to have given it weight in the opposite direction for it to have weighed against the applicant. 

It is clear from the choice of words the Tribunal has used “not prepared to give it sufficient weight to overcome the concerns with the applicant’s evidence” that the Tribunal gave it weight and gave it weight in the applicant’s favour.  On that basis, in my submission, it is very hard to draw an inference from the Tribunal’s reasoning that it concluded that the certificate was a fabrication.

HAYNE J:   Why then at application book page 16 line 45 is it described as “an alleged baptism certificate”?

MR O’DONNELL:   That is the only point in the reason at which the word “alleged” is used.  Everywhere else it is referred to simply as the applicant’s baptism certificate.  Especially in that part of its reasoning, at the critical passage, it is not referred to as an alleged baptism certificate.  In my submission, with respect, that is a very thin reed to build an implication that the Tribunal has concluded that the certificate is fabricated, especially when one considers that the Tribunal gave it some weight and some weight in the applicant’s favour.

With respect to the question of considering relevant material, it is clear that the decision‑maker will only have considered relevant material if he understood the matter and its significance to the decision and engaged in an active intellectual process of evaluating it which is worthy of being called considered.  It is also clear that mentioning or adverting to a matter, a decision‑maker’s reasons for decision is not necessarily determinative of the question of whether it has been considered, and that cuts both ways. 

It is possible that the fact that a matter is not mentioned at all in the reasons does not necessarily mean that it was not considered, as the Full Federal Court said in WAEE.  It may be a matter that was, given the way in which the matter was argued and the issues before the decision‑maker, a matter of peripheral significance which is dealt with in an omnibus fashion by findings of greater generality, et cetera, but cutting in the other direction, it may be that a mere mention of a matter in the reasons is not enough to count as the matter having been considered. 

This was expressed by Justice Tobias in the Anderson Case as saying that – and it should be noted that Justice Tobias in that case was heavily criticising the proper, genuine and realistic consideration formulation that had been around for some time.  His Honour nevertheless said but, of course, the decision‑maker must do more than pay, in his Honour’s words, mere lip service to the matter.  As I said, the formulation of proper, genuine and realistic consideration has been – it appears to have been originated by Justice Gummow in the case of Khan v Minister in 1984 when his Honour was in the Federal Court. 

The formulation has been criticised in recent years on the basis that it is a temptation to merits review.  As I said, however, even those critics acknowledge that there is some limit.  In my submission, the problem with the standard, proper, genuine and realistic consideration is that it is prescriptive rather than proscriptive, that is to say, it says what the Tribunal must do; it sets a standard it must reach.  The temptation to merits review there is that it is always possible that a sympathetic judicial officer may say, well, it did not quite get there. 

The solution may well be, and the opportunity that this case provides this Court to enunciate, is that the solution is to give rise to a proscriptive standard, that is, a description of what the decision‑maker must not do, such as Justice Tobias’ formulation that it must do more than pay mere lip service.  As I have submitted earlier, in the context of this case, the issue of whether the applicant had ever been baptised was central.  The baptism certificate was a central, indeed, I would submit the central piece of evidence for that question.  It is hard to conclude that anything other than that the Tribunal’s treatment of that baptism certificate was mere lip service. 

In my submission, there is no finding as to its authenticity or at least there is not enough material there given the importance of the issue of its authenticity for this Court to conclude that the authenticity had been considered.  Once that is the case, it is extremely hard to see how one could say that the certificate had been given adequate consideration whatever the test is.  The second way in which the argument of the applicant could be put is that the way in which the Tribunal treated the issue of whether the applicant had ever been baptised was irrational, illogical or not founded on findings of fact based on logical inferences from evidence.

FRENCH CJ:   This is all in a context where, on the Tribunal’s view of it, the applicant has told the Tribunal (a) at one point that he was baptised 15 years ago or it was at age 15 ‑ ‑ ‑

MR O’DONNELL:   He tells the delegate at age 15.

FRENCH CJ:   Yes.  Then another time says when he was very young and then there is also a whole set of findings in relation to his knowledge of the Christian faith.

MR O’DONNELL:   To be specific, I am not cavilling without some need to.  Before the delegate he said he had been baptised at 15.  Before the Tribunal he says he was baptised when young.  The Tribunal asks him, “Were you baptised as a baby?”  He says, “I cannot remember, although I remember my father saying something about that.”  He is asked to name certain Christian festivals.  He, or the person translating for him, cannot come up with the word “Easter” and he displays a lack of knowledge about the history and organisation of the Baptist Church in the fact that it comes from overseas, that it is an overseas organisation, et cetera, in India. 

The question, though, because the Tribunal founded its reasoning on this issue of whether he had ever been baptised, is, had he been baptised.  The evidence against it is different, not necessarily inconsistent, although the Tribunal saw it as inconsistent, different evidence to the delegate and to the Tribunal as to when he had been baptised; 15 before the delegate, young before the Tribunal.  “Were you baptised as a baby?”  “I do not remember.  My father said something about that.” 

Normally, there is no doubt that in the vast majority of cases, the weight to be given to a particular piece of evidence is a matter for the Tribunal and is not a matter for a court on judicial review.  It is well established that there is a limit exception to that principle where the way in which a decision‑maker treats a piece of evidence indicates that the decision‑maker has not engaged in the intellectual process prescribed by the relevant statute has fallen into jurisdictional error.

HAYNE J:   Well, because that decision‑maker has failed to address the relevant question.  The question presented in this application is whether there is a mere deficiency of expression of reasoning or whether, read as a whole, the reasons show that there was a failure to address the question of whether the applicant had a well‑founded fear of persecution on the ground of religion.

MR O’DONNELL:   Yes, your Honour.  The reasons should be read as a whole.  Wu Shan Liang applies.  Your Honours should not trip the decision‑maker up for a comment in one place when in context it is read differently in another.  But, your Honour, the whole context of the discussion of the baptism certificate is a mention that it was delivered in response to the 424 letter, a mention at the beginning of the critical paragraph of the reasons in which, as your Honour points out, the word “alleged” is used and then a one sentence mention after a finding as to credit at the very end of the critical paragraph where it is said that the applicant was not baptised. 

Given that the Tribunal hung its hat on the question of whether or not the applicant had been baptised and the authenticity of the baptism certificate was, in my submission, determinative of that issue, if the baptism certificate is authentic, the applicant has been baptised.  One would expect a Tribunal that had engaged in the prescribed process of reasoning to have grappled in its reasons with that central piece of evidence more than it actually did.  That is not a question of the obligation on a Tribunal in 430 to give reasons.  It is a question of what the Court can take from those reasons, given that obligation exists. 

When a decision‑maker is obliged to give reasons, this Court is entitled to assume that those reasons reflect the actual reasoning process the Tribunal undertook.  If there is nothing there or there is insufficient material in those reasons to indicate that an issue the Tribunal was obliged to consider has been considered, this Court is entitled to draw the inference that it was not considered.

HAYNE J:   What are we to make then of the sentence at application book 17, lines 9 and 10:

This means that the Tribunal is not satisfied that the applicant is Christian or has been baptised.

MR O’DONNELL:   That conclusion is made before it addresses the baptism certificate.

HAYNE J:   I understand that.  That is the order in which the reasons appear.

MR O’DONNELL:   Yes.  So what it says is, on the basis purely of the inconsistencies, I conclude he has never been baptised.  I now have a certificate of baptism, that is not enough to get over my inconsistencies on the question of whether he had been baptised.  As I say, the baptism certificate is determinative of the baptism if it is authentic.  There is no finding, in my submission, and there is no basis for drawing the inference that there was a finding that the baptism certificate was not authentic because if it was not authentic, it would have been given no weight.

FRENCH CJ:   Even if there is a finding that he had been baptised, gone through a form of baptism, the Tribunal has made a finding he is not Christian.

MR O’DONNELL:   Absolutely.

FRENCH CJ:   It is critical in this case, is it not?

MR O’DONNELL:   It is because, your Honour ‑ ‑ ‑

FRENCH CJ:   He is not being persecuted, on his account of it, because he has been baptised.  He is being persecuted because he is a Christian.

MR O’DONNELL:   Exactly, but the Tribunal’s reasoning as to why he is not a Christian is that he has not been baptised.  I mean, the Tribunal could have said, “Okay you were baptised, but I do not believe that you are a devout Christian”, or, “Okay, you have been baptised and you are still a Christian ‑ ‑ ‑

FRENCH CJ:   I am looking again at page 17, after going through the inconsistencies and the inadequacies in his account of knowledge of the Christian faith and so forth:

This means that the Tribunal is not satisfied that the applicant is Christian or has been baptised.

MR O’DONNELL:   With respect, I do not think you can say they are independent findings.  I think they are two strands of the same cable.  I do not think he has been baptised because of what I perceived as inconsistencies in his evidence as to when he was baptised and also inadequacies in his knowledge and I do not believe he was a Christian because of inadequacies in his knowledge and that I do not believe he was ever baptised.  I mean, they are all tied up together.  They are strands in that cable.  It is not a chain of reasoning or independent lines of reasoning, in my submission. 

The principle I was referring to earlier that there is a limit case in which the weight given to evidence can show that the proper question has not been addressed, in Peko Wallsend Justice Mason described this as a species of Wednesbury unreasonableness, but more recently this Court has said that in cases such as this one which are not matters of broad discretion but are matters of what I might call jurisdictional opinion, where there is an obligation to grant a visa or not grant a visa turn on jurisdictional fact, that fact being the state of satisfaction of the Minister or his delegate as to whether or not protection obligations apply, the determination as to the existence of that fact must not be irrational, illogical or based on findings or inferences of fact not supported by logical grounds. 

As I have said, it is very hard to understand the logic of the Tribunal’s reasoning whereby – in a sense the Tribunal is caught in a dilemma.  It is hard to believe that it found that the certificate was authentic because it gave it some weight in the applicant’s favour.  If it accepted that it was authentic, it is hard to understand how it could have made the finding, given that there was an authentic baptism certificate, that the applicant had never been baptised.  Whichever way you interpret the reasoning you are caught on a fallacy.

In my submission, another way of putting it is that the decision was not based on findings or inferences supported by logical grounds.  That finding would be an intellectual grappling with the question of whether this certificate was authentic because that was, in a sense, how the whole question of whether he had been baptised collapses to that question.  If he has not been baptised, this certificate must be inauthentic.  In a sense, it is not just a piece of evidence towards that question, that piece of evidence is the question.

There is another aspect to this case that might attract the Court’s interest for special leave which does not arise directly.  It arises tangentially from these facts, but I think it is important, and that is the point that was made by Federal Magistrate Driver below about comments of Justice Gummow and Justice McHugh in this Court’s decision in Applicant S20 v The Minister about it being possible for a decision‑maker to have concluded that an applicant’s credibility is so damaged that corroborative evidence provided need be given no weight.

Now, the Minister disavowed any reliance on Applicant S20 in the Full Court below.  There is some question as to whether he relied upon it in the Federal Magistrates Court but Federal Magistrate Driver certainly thought he relied upon it.  He understood an argument had been put to him like this.  Giving this certificate insufficient weight cannot be an error because the Tribunal could have given it no weight, under Applicant S20, and there would be no error.  One of the problems here is that this case and the companion case that was run simultaneously with it in the Full Federal Court below arose out of concerns in the Federal Magistrates Court.

FRENCH CJ:   Your time is just about up, Mr O’Donnell.  In fact, it is up, so perhaps you can just finish with one sentence.

MR O’DONNELL:   Your Honours have seen the written submissions.  As to whether their Honours comments in Applicant S20 had been misinterpreted or taken too far by Tribunal members in the way in which they treat corroborative material and that giving rise to serious policy issues that could attract the attention of this Court.  I am sorry for going over my time.

FRENCH CJ:   Thank you, that is all right.  We will not need to call on you, Mr Lloyd.

This application for special leave involves the contention that the Refugee Review Tribunal’s treatment of a document purporting to be a baptismal certificate evidencing the applicant’s baptism as a Christian involved jurisdictional error.  The applicant, an Indian national, had applied for a protection visa on the basis of apprehended persecution by Hindu activists on account of his Christianity.  On the basis of the applicant’s oral testimony, the Tribunal was not satisfied that he was either a Christian or had been baptised.  The Tribunal considered the baptism certificate proffered to it, but in light of its concerns about the applicant’s knowledge of his own baptism, it was not prepared to give that document sufficient weight to overcome its concerns with his evidence. 

The Tribunal did not fail to consider the baptismal certificate.  Nor did its reasons disclose irrationality or apprehended bias as claimed by the applicant.

Despite Mr O’Donnell’s careful submissions, the prospects of success on the appeal are not sufficient to warrant the grant of special leave.  Special leave will be refused with costs.

The Court now adjourns to 10.15 am on Tuesday, 31 May 2011 in Canberra.

AT 12.39 PM THE MATTER WAS CONCLUDED