WAJS v Minister for Immigration
[2003] FMCA 416
•3 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WAJS v MINISTER FOR IMMIGRATION | [2003] FMCA 416 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – whether the RRT’s findings on credibility based upon logically probative material – whether the rules of procedural fairness include a requirement that the conclusions of an administrative decision maker be based on logically probative material – whether it was reasonably open to the RRT to reach the degree of satisfaction required by s.65 of the Migration Act 1958 (Cth) to reject the visa application. |
Administrative Decisions (Judicial Review) Act 1974 (Cth)
Evidence Act 1995 (Cth), s.55
Migration Act 1958 (Cth), ss.36, 65, 414, 420, 422B, 474, 476
Migration Amendment (Excision from Migration Zone) Act 2001 (Cth)
Attorney General (NSW) v Quin (1990) 170 CLR 1
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Craig v South Australia (1995) 184 CLR 163
Bruce v Cole (1998) 45 NSWLR 163
Epeabaka v Minister for Immigration (1997) 150 ALR 397
GTE (Australia) Pty Limited v Brown (1986) 76 ALR 221
Kioa v West (1985) 159 CLR 550
Mahon v Air New Zealand [1984] AC 808
Minister for Immigration v Epeabaka (1998) 84 FCR 411, 160 ALR 543
Minister for Immigration v N989/01 [2002] FCAFC 237
Minister for Immigration v Pochi (1980) 31 ALR 666
Minister for Immigration v Rajamanikkam (2002) 75 ALJR 1048; (2002) 190 ALR 402
Minister for Immigration v W64/01A [2003] FCAFC 12
Minister for Immigration v Wu Shan Ligan (1998) 185 CLR 259
Minister for Immigration v Yusuf (2001) 206 CLR 323
N989/01 v Minister for Immigration [2002] FCA 434
Plaintiff S157 of 2002 v Commonwealth (2003) 77 ALJR 454
R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Limited (1953) 88 CLR 100
R v Deputy Industrial Injuries Commissioner; ex parte Moore [1965] 1 QB 456
Re Minister for Immigration; ex parte Applicant S20 of 2002 [2003] HCA 30
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
Re Minister for Immigration; ex parte Epeabaka (2001) 206 CLR 128
Re Pochi v Minister for Immigration (1982) 29 ALR 247
SDAV v Minister for Immigration [2003] FCAFC 129
Taveli v Minister for Immigration (1989) 86 ALR 435
Thevendram v Minister for Immigration (2000) 182 ALR 190
VGAO of 2002 [2002] FCAFC 6
W64/01A v Minister for Immigration [2002] FCA 970
| Applicant: | WAJS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | WZ60 of 2003 |
| Delivered on: | 3 October 2003 |
| Delivered at: | Sydney, via telephone to Perth |
| Hearing date: | 28 August 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr S Ower, pro bono publico |
| Solicitors for the Applicant: | Refugee Advocacy Service of South Australia Inc |
| Counsel for the Respondent: | Mr R Hooker |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements, of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
WZ60 of 2003
| WAJS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 30 January 2003. The RRT affirmed a decision of a delegate of the respondent Minister not to grant the applicant a protection visa. The applicant, who is a citizen of Sri Lanka, arrived on the Cocos (Keeling) Islands on 15 September 2001, two days before those islands were excised from Australia’s immigration zone under the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth). The applicant applied for a protection visa on 3 September 2002, which was refused by a delegate of the respondent on 13 November 2002. The applicant applied to the RRT for review of the delegate’s decision on 14 November 2002.
The review application, which was filed in the Federal Court on 19 February 2003, asserts first that the RRT exceeded its jurisdiction in making its decision to affirm the respondent’s decision and, secondly, that the RRT constructively failed to exercise its jurisdiction in arriving at its decision.
On the trial of this matter the applicant was represented pro bono by Mr Ower, instructed by the Refugee Advocacy Service of South Australia Inc. It is appropriate that I place on record the Court’s appreciation for the willingness of counsel and his instructing solicitors to appear and represent the applicant on this basis.
The applicant’s claim for a protection visa related to events that he alleged occurred to him in 2000-2001, namely that he was forced to assist the Liberation Tigers of Tamil Eelam (LTTE) and, as a consequence, was imprisoned and tortured for three months by the Sri Lankan authorities (court book, pages 265-268).
The RRT did not believe that these claimed events happened. The relevant findings of the RRT supporting its conclusion that it was not satisfied that the applicant is a person to whom Australia has protection obligations appears at pages 276-280 of the court book.
The applicant submits that, by making these findings, the RRT decision displayed a jurisdictional error in two respects:
b)first, it is said to breach the RRT’s obligation to afford procedural fairness, by failing to base its findings relating to the claimed events upon probative material, being material that tended logically to show the non-existence of facts relevant to the issue to be determined; and/or
c)secondly, it is said that the RRT constructively failed to exercise the jurisdiction vested in it and the duty placed upon it by ss.65 and 414(1) of the Migration Act 1958 (Cth) (“the Migration Act”), by being “not satisfied” in circumstances where the probative material underpinning its findings was inadequate.
The RRT decision
I accept as accurate the description of the RRT decision contained in the applicant’s outline of submissions at paragraphs 6 – 16. I adopt that statement for the purposes of this judgment as follows:
The RRT made five findings of fact in relation to the claimed events (court book, page 278).
None of these findings of facts were expressed as being based upon the general credibility of the applicant. Each was made on the basis of an inconsistency with other material. By way of contrast, see Re Minister for Immigration; ex parte Applicant S20 of 2002 [2003] HCA 30 (“Applicant S20”) at [42].
First finding
The RRT found it was:
…not satisfied that the applicant has given an accurate account of being taken into custody and detained in three separate locations as he has claimed occurred (court book, page 278).
It did so on the basis that it was:
…implausible that the applicant was detained and tortured in three separate locations and each time accused of having supplied batteries, oil and petrol to the LTTE and that he continually denied having done so (court book, page 278).
Second finding
The RRT also found that it was:
…unable to accept that the applicant was taken blindfolded to Colombo and detained there for three months in connection with the allegation… (court book, page 278).
Its reasons for so finding were threefold.
First, this would not occur:
…when interrogatory capacity and detention facilities exist at police and military facilities throughout the country which could deal with allegations involving the local supply of small batteries and gallon cans of fuel (court book, page 278).
Secondly, “in the context of all of the evidence”, it rejected the contention raised in supplementary written submissions by the applicant’s advisers (court book, pages 251, 252, 269) that “the applicant’s eye injury led to his transfer to Colombo and his extended detention there: (court book, page 278).
Thirdly, it stated:
In reaching this conclusion, I have had regard to the applicant’s evidence about his release: he said that he had been charged but was unaware of the progress of the case and whether it involved court. I consider that the applicant would have known more abut this had he been detained and released in the circumstances he has claimed (court book, page 278).
Third, fourth and fifth findings
The RRT found that it did not believe:
(a)that the applicant had provided goods to the LTTE;
(b)that the CID came looking for the applicant in connection with any allegation that he supplied goods to the LTTE or in connection with his detention for his reason; and
(c)that the CID have interrogated his aunt and searched her house for these reasons (court book, page 278).
It did so on the basis that these findings “followe[ed] from” the first and second findings (court book, page 278).
Submissions
Mr Ower, for the applicant, submits as follows:
It is submitted that the RRT breached its obligation to afford procedural fairness, by failing to base these findings upon probative material, being material that tended logically to show the non-existence of the facts relevant to the issue to be determined.
The RRT owes a duty of procedural fairness to the applicant, except where that duty is abrogated by statute: Plaintiff S157 of 2002 v Commonwealth (2003) 77 ALJR 454 (“Plaintiff S157”).
A decision made in breach of the rules of procedural fairness is one involving jurisdictional error and, as such, not a “decision ... made under [the] Act” and therefore not a “privative clause decision” as defined by s 474(2) of the Act: Plaintiff S157 (supra) at [75]-[78], per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
Procedural fairness includes the requirement that the RRT base its decision on evidence, in that it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined: R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 487-488, per Diplock LJ (“Moore”); Re Pochi v Minister for Immigration (1982) 29 ALR 247 at 256, per Brennan J; Minister for Immigration v Pochi (1980) 31 ALR 666 at 688-690, per Deane J (“Pochi”); Mahon v Air New Zealand [1984] AC 808 at 821 (“Mahon”); GTE (Australia) Pty Limited v Brown (1986) 76 ALR 221 at 249-250, per Burchett J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367-368, per Deane J (“Bond”); Minister for Immigration v Rajamanikkam (2002) 75 ALJR 1048 at [25], per Gleeson CJ, at [100], per Kirby J; Applicant S20 (supra) at [9], per Gleeson CJ.
This requirement is not modified or abolished by the existence of s.422B of the Migration Act, which was enacted as part of the Migration Legislation Amendment (Procedural Fairness) Act. Section 422B provides that Division 4 of Part 7 is “an exhaustive statement of the requirements of the natural justice hearing rule” (emphasis added). The stated requirement is not part of the requirements of the hearing rule: Moore (supra), at 487; Aronson and Dyer, Judicial Review of Administrative Action (2nd ed., 2000), at pp 301-304.
Epeabaka
It is submitted that the decision of the Full Court in Minister for Immigration v Epeabaka (1998) 84 FCR 411 (“Epeabaka”) is not authority to the contrary of the above analysis.
At first instance, Epeabaka v Minister for Immigration (1997) 150 ALR 397, Finkelstein J held that a failure to rationally consider probative material was an error of law under the former s.476 of the Act. As authority, his Honour cited Moore (supra), Pochi (supra) and Mahon (supra) (at 400-402).
However, it is clear that a breach of the rules of natural justice was not a ground of review available under the former s.476: s.476(2)(a). As such, His Honour held that such a failure was an error in itself – one that amounted to a failure to observe procedures that were required by the Act (s.476(1)(a)) or one involving an incorrect interpretation of the law (s.476(1)(e)) (at 406-407).
On appeal, the Full Court (Black CJ, von Doussa and Carr JJ) held that:
a)Finkelstein J’s criticisms of the reasoning of the RRT on matters of fact and, in particular, on the applicant’s credibility were unjustified; and
b)in any event, the finding that such a failure was an error of law was inconsistent with Mason CJ’s judgment in Bond (supra). See Epeabaka (supra) at 421 [23]; Bond (supra) at 356, per Mason CJ.
It is respectfully submitted that this is correct on the issue of whether such a failure is an error of law “in and of itself”: see also Re Minister for Immigration; ex parte Epeabaka (2001) 206 CLR 128 at [9].
However, neither the Full Court nor Finkelstein J were able to consider whether such an error constituted a breach of procedural fairness. It is submitted that, in Bond (supra), Mason CJ left this issue open (at 355-357). See also Bruce v Cole (1998) 45 NSWLR 163 at 186-187, per Spigelman CJ.
Furthermore, it is submitted that Mason CJ’s decision in Bond (supra) should be understood as “not considering notions of jurisdictional error elaborated in the decisions given under s.75(v) of the Constitution” and restricted to the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth): Applicant S20 (supra) at [57], per Gummow and McHugh JJ.
Probative material
In Moore (supra), Diplock LJ said:
... it must be based on material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.
See also Pochi (supra) at 689-690; Bond (supra) at 368.
It is submitted that this requirement of probative value is analogous to the test of relevance under s.55 of the Evidence Act 1995 (Cth), namely that material is probative where it “could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding” (See also the definition of “Probative Value” in the Dictionary of the Evidence Act 1995 (Cth)).
It is submitted that none of the RRT’s reasons for its findings “rationally affect the assessment of the probability of the existence of” the claimed events.
First finding
No material is cited to support the first finding, other than the fact that it is “implausible”.
It is submitted that the comments of McHugh J in Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [65] and [67] are distinguishable on the basis that His Honour was only concerned with the obligation to set out reasons for decision under s.430 of the Act, rather than the obligation to base findings on probative material. In any event, the applicant expressly reserves its position in relation to arguing that.
In the present matter, there is nothing in the material before the RRT to demonstrate that the first finding was “implausible”.
Second finding
The probability of the existence of the second finding is only supported by the first reason (the existence of local facilities).
It is submitted that the second reason (the rejection of the eye injuries) does not rationally affect the reason why the applicant would be moved to Colombo.
It is difficult to see how the applicant’s information regarding his release could rationally effect a finding that he was not transferred to Colombo. In any event, the RRT has misquoted the applicant’s answers in this regard (court book, page 267). As such, the reason can not rationally support such the probability of such a finding.
Third, fourth and fifth findings
It is submitted that if there is no relevant and probative material that shows the non-existence of the first finding and the second finding, then those findings cannot be relied upon to support the third finding, the fourth finding and the fifth Finding.
Even if the first finding and the second finding are correct, it is submitted that the first finding (not taken into custody) and the second finding (not moved to Colombo) do not rationally affect the probability of the existence of the third, fourth and fifth Findings.
In summary, it is submitted that the decision falls within the following as described by Lee J in Thevendram v Minister for Immigraiton (2000) 182 ALR 190:
... if the Tribunal does no more than assert that some part of an applicant's account of past events is "not credible", or is "implausible", and relies upon that assertion not to make findings of fact on material issues in the applicant's case, the decision-making process engaged in by the Tribunal may require analysis. ... If general statements to the effect that claims of an applicant are "not credible", or are "implausible", are regarded as "credibility" findings not dependent on findings of fact, and that any decision based thereon is beyond the scope of judicial review, there is a real risk that reasons for decision will be constructed accordingly (at [26]).
See also the comments generally of Lee J in Thevendram (supra) regarding the credibility of the testimony of asylum seekers.
In relation to the second ground of review Mr Ower submits as follows:
It is submitted that the RRT failed to exercise the jurisdiction vested in it and the duty placed upon it by ss.65 and 414(1) of the Act, by not being “not satisfied” that the applicant fulfilled the criteria set out in s.36(2) of the Act for a protection visa.
If made out, such an error is a jurisdictional error and not protected by s 474 of the Act: SDAV v Minister for Immigration [2003] FCAFC 129 (Hill, Branson and Stone JJ).
It is submitted that the errors in making the findings above support an inference that the RRT is not in reality “not satisfied” of the requisite matters: R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Limited (1953) 88 CLR 100 at 119; Applicant S20 (supra) at [36]-[37], per Gummow and McHugh JJ. See also Applicant S20, per Gleeson CJ.
This inference is supported by the fact that:
a)the RRT failed to advert to the fact that the applicant’s claims have been consistent since his arrival in Australia (court book, pages 42-45);
b)the delegate believed the applicant’s claims (court book, pages 116-117);
c)the RRT misquoted the applicant’s answers regarding his release (compare court book, page 267 with court book, page 278); and
d)in addition to the material put forward by the applicant’s adviser, the RRT’s own country information supports a finding that Tamils are detained where they have “visible scars” (court book, page 271).
In light of the foregoing, it is submitted that the RRT has not properly fulfilled its duty to consider whether it is satisfied, or not satisfied, that the applicant is a person to whom Australia owes protection obligations.
In response, Mr Hooker submits as follows:
Whilst the respondent does not oppose the granting of leave to the applicant to rely upon the grounds as expressed [in] his outline of submissions, it is submitted that those grounds do not reflect jurisdictional error of the kind that may ground judicial review of a decision of the RRT made under the Migration Act.
With respect to the first proposed ground, it is not established in Australian law that the content of the principles of procedural fairness (in any circumstances, let alone in the circumstances of a review being conducted by the RRT pursuant to ss.414 and 420 of the Migration Act) encompasses a requirement that findings be based upon probative material. As a matter of common law, the respondent makes several points:
a)The clear balance of authority is inconsistent with such a proposition and, in particular, is not accepting of the principles suggested by Deane J in Bond. See, in particular: Kioa v West (1985) 159 CLR 550 at 583-585, 622; Attorney General (NSW) v Quin (1990) 170 CLR 1.
b)Even if the judgment of Mason CJ in Bond (supra) at 355-357 be read, beneficially to the applicant, as leaving the question open for the future, it nevertheless rejects the proposition that this component of the rules of natural justice is presently applicable to Australian law.
c)Any intimations from judgments of the High Court in Minister for Immigration v Rajamanikkam (2002) 190 ALR 402 (at [25] per Gleeson CJ and [100] per Kirby J) and Applicant S20 (at [9] per Gleeson CJ) are obiter, at best equivocal, and unsupportive of the principle as forming part of the doctrine of procedural fairness.
d)Whilst it may be said, in one sense, that the decision of the Full Court of the Federal Court in Minister for Immigration v Epeabaka (1998) 84 FCR 411; 160 ALR 543 is not authority against the proposition, neither can it in any way be construed as being supportive of the proposition. Indeed, in light of s.476 of the Migration Act as it then stood, it is unsurprising that that Full Court judgment is of no assistance as to the content of the principles of procedural fairness.
e)In light of the nature of the task of the RRT, namely to be satisfied, or not, as to the preconditions for the grant of a protection visa, is difficult to see how the concept of a requirement necessarily to act on the basis of probative evidence can have any meaningful operation. In any given case, the RRT may fail to reach a requisite level of satisfaction based on one or more of a variety of circumstances that are not necessarily sourced in "evidence" one way or the other. For example, a tribunal member may reject an applicant's account as being utterly incredible, or reject an applicant's account as being a fabrication based entirely on the unsatisfactory demeanour or means of giving evidence before the RRT.
…
In any event, the position under the Migration Act is clear. Section 422B, operative in respect of applications to the RRT on and from 4 July 2002, provides that that Division of the Act, in dealing with the conduct of a review, contains an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with. The existence or non-existence of evidence is an aspect of the nature and content of the hearing undertaken by the RRT. As with other features sometimes claimed to be components of the natural justice hearing rule at common law (such as an entitlement to cross-examine, a entitlement to counsel, and an entitlement to appear in person), it is to be contrasted with the distinct "bias" rule, or limb.
Hence, whilst it is acknowledged that a decision made in breach of the rules of procedural fairness is one involving jurisdictional error and is therefore not a "decision … made under" the Act and therefore not a "privative clause decision" as defined by s.474(2) of the Act (as to which see Plaintiff S157, there is neither any authority binding this court, nor any legitimate balance of authority, supporting the proposition that the kind of potential error as described in paragraph 5.1 is capable of grounding relief.
As to the second proposed ground, it is acknowledged that, in some circumstances of administrative decision-making, a tribunal may not be in reality "satisfied" of the precondition to the exercise of power, contrary to its own assertions. But there are no examples cited to this Court – and none of which the respondent is aware – where an error of this kind has been established and shown to be, relevantly, a jurisdictional error perpetrated by the RRT.
The observations of McHugh and Gummow JJ in ApplicantS20, supra, at [36]-[37] are obiter and do not, with respect to their Honours, give any content to the so called Melbourne Stevedoring doctrine to decision-making by the RRT. Moreover, any principle to be distilled from SDAV v Minister for Immigration is elusive – certainly nothing in the ratio of that Full Court decision assists the present applicant.
The respondent submits that it will take a very clear case for a court undertaking judicial review to conclude that an RRT, whilst asserting that it is in fact "not satisfied" of the fulfilment of the criteria for a protection visa, has not truly reached that state of "non-satisfaction". No such case is made out here.
In addition, Mr Hooker submits that the findings of the RRT were reasonably open to it on the material before it:
For present purposes, the respondent addresses the five findings as isolated in the applicant's outline of submissions in paragraphs 8-16, and the subject of comment at paragraphs 32-39.
With respect to the first finding, it was open to the RRT to regard the account of the applicant being taken into custody and detained in three separate locations as implausible. It is unrealistic to suggest that there will necessarily be independent evidence on a specific claim of that kind that will tend to disprove it. Rather, it was open to the RRT member to assess the inherent likelihood of such events having occurred. That this is a task for the RRT in its process of fact-finding is the point made by McHugh J in Re Minister for Immigration; ex parte Durairajasingham at [67]. The force of His Honour's observation is not detracted from by the fact that an error of a different nature was being pressed as sufficient to ground judicial review in the circumstances of that case.
With respect to the second finding, the two reasons as expressed by the RRT provided a feasible foundation therefor. The contentions advanced by the applicant constitute no more than an attempt to review that process of fact-finding. To the extent that the applicant relies on notions of logic, or the rationality of the decision-making into the analysis, the submission then slides away from the grounds of review as previously put by the applicant. Judicial review on those bases is not open, at least without further and specific refinement of a proposed ground of jurisdictional error – cf. Applicant S20, supra.
Having formed a view as to the plausibility (and hence overall credibility) of the applicant's account of events commencing in 2000, it was then open to the RRT to proceed to make, in turn, the third, fourth and fifth findings. Again, the contentions for the applicant slide into the prohibited area of the analysis of fact-finding as being "rational" or otherwise.
Finally, Mr Hooker referred me to Federal Court authority concerning the process of fact finding in administrative tribunals:
The comments of Lee J in Thevendram need to be seen, with respect, in the context of a range of decisions of the Federal Court on like matters. For example, His Honour made similar observations in W64/01A v Minister for Immigration [2002] FCA 970 at [31]. However that decision was overturned on appeal by a Full Court in Minister for Immigration v W64/01A [2003] FCAFC 12. Again, His Honour's judgment reflecting a similar application of principle in N989/01 v Minister for Immigration was overturned on appeal by a Full Court in Minister for Immigration v N989/01 [2002] FCAFC 237. See too VGAO of 2002 [2002] FCAFC 6 at [2]-[4], [7], and [55]-[58].
Taken at its highest, on the approach suggested by Lee J in Thevendram, one is merely prohibited from denying the potential for judicial review simply because assertions of an applicant are rejected as being "not credible" or "implausible". Rather, His Honour asserts, the use of epithets of that kind may mean that the decision-making does require analysis. But the preferable starting point is to acknowledge that a finding of "fabrication" (cf of "not believing" an account – court book, page 278) does amount to a strong credibility finding against a visa applicant: see W64/01A, supra, at [64] per Carr J.
Ultimately, there is no basis in precedent or legitimate legal principle to support the grounds advanced. This Court could have no confidence in itself enlarging the doctrines of jurisdictional error to accommodate the present circumstances.
Moreover, there is nothing beyond mere disagreement with the RRT’s fact-finding approach to warrant judicial review. The applicant's contentions invite this Court to engage in over zealous review with an eye keenly attuned to the perception of error, contrary to Minister for Immigration v Wu Shan Liang (1998) 185 CLR 259 at 272, 291-292. The application should accordingly be dismissed with costs.
Reasoning
I accept that in the United Kingdom the rules of procedural fairness comprise three limbs, namely the fair hearing rule, the rule against apprehended bias and the rule that decisions be based upon probative evidence. In Australia, the third limb of the procedural fairness rules was adopted by Deane J in Minister for Immigration v Pochi (1980) 31 ALR 666 at 688-690. However, in Bond, apart from Deane J at 367-368, the High Court failed to adopt into Australian law the principle that procedural fairness requires that an administrative decision maker base his or her decision upon probative material. In that case, Mason CJ, at 356-357, left the door open. Judicial opinion since then has been inconclusive.
The decision of the Full Federal Court in Epeabaka v Minister for Immigration appears inconsistent with the proposition that the third limb of the procedural fairness rules applies in Australia but, as pointed out by Mr Ower, that decision was based upon an analysis of the former s.476 of the Migration Act, now repealed. The grounds of review are now those available under the general law. Also, I accept Mr Ower’s submission that s.422B is not relevant. That section is an exhaustive statement of the fair hearing rule. We are not dealing here with a question of whether or not the hearing was fair. We are dealing with a question of whether the decision of the RRT was fair because it was not based upon logically probative evidence.
However, for my part, I have real difficulty in distinguishing the supposed third limb of the rules of procedural fairness from the Wednesbury unreasonableness ground of review and the no evidence ground of review. In R v Deputy, Industrial Relations Commissioner; ex parte Moore [1965] 1 QB 456 Diplock LJ observed at 488:
These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions, must base his decision upon evidence means no more than it must stand upon material which tends logically to show the existence or non existence of facts relevant to the issues to be determined and to show the likelihood or non likelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he must take into account any material, which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its own view for his.
This statement was approved by the Privy Council in Mahon at 820-821.
I find that it is arguable whether or not the English rule requiring administrative decisions to be based on probative material is part of the rules of procedural fairness in Australian law. If it is, it is not readily distinguishable from the no evidence ground and the Wednesbury unreasonableness ground. See, for example, Taveli v Minister for Immigration (1989) 86 ALR 435 at 453 per Wilcox J. The distinction, if there is one, may be illusory in migration proceedings in any event. In the face of the privative clause, jurisdictional error must be found. As the law currently stands, the class of jurisdictional errors that would suffice is expressed broadly in Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration v Yusuf (2001) 206 CLR 323 at [82]. If a decision were to be found invalid on the basis of the statement in Moore it must necessarily also be invalid on the basis of the statements of principle in Craig and Yusuf. Conversely, if there was any evidence which logically supported the findings of the RRT, the ground of review contended for could not be made out in migration proceedings, whether it is based upon an argument of procedural unfairness or another ground of judicial review identified in Craig and Yusuf as constituting jurisdictional error.
The critical findings of the RRT are set out on page 278 of the court book. It is claimed that the presiding member disbelieved the applicant’s account and found it implausible. The evidence before the presiding member which led to the adverse findings on credibility was the applicant's own account. The presiding member found the applicant’s account to be implausible and illogical. The presiding member did not require other evidence to support her rejection of the applicant’s evidence. She had to satisfy herself, or not, on the basis of the material put before her. It is up to an applicant to satisfy the decision maker that he or she faced persecution. If an applicant presents evidence and it is rationally rejected by the decision maker, the applicant can hardly complain that there was no evidence supporting the rejection. There plainly was evidence, being the evidence presented by the applicant himself. Provided that the presiding member approached the consideration of the applicant’s evidence in a rational and logical manner, which, in my view, she did, the applicant cannot found a judicial review application on a no evidence ground, or on the third limb of the rules of procedural fairness, if it exists in Australia.
The second ground of review is based upon the decision of the High Court in R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Limited at 119. This ground was considered recently by the High Court in Applicant S20. In that case, McHugh and Gummow JJ said at [36]-[37]:
It was pointed out in Eshetu that some stricter view perhaps should be taken of what must be shown to make out the case of error grounding relief under s.75(v) of the Constitution where the legislation, as does s.65, conditions the attraction of jurisdiction upon the attainment by the decision maker of satisfaction that a certain state of affairs exists and that state of affairs includes factual matters. Such a stricter view would appear to have been taken with the distinction drawn in R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd. This contrasts insufficiency of evidence to support a conclusion of fact by an administrative decision maker and the absence of any foundation in fact for the fulfilment of the conditions upon which, in law, the existence of the power depends. In Melbourne Stevedoring, Dixon CJ, Williams, Webb and Fullager JJ went on:
The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the Tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the Tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.
Without further consideration of what was said in Melbourne Stevedoring the formulation of the criterion which is relied upon by the appellant may be accepted for present purposes. But, as will appear, much depends upon the particular circumstances disclosed by the written statement required by s.430 of the Act. In this case, the determination by the Tribunal was not irrational or illogical as the appellant contends.
Kirby J reached a similar conclusion at [126] – [129].
I see nothing irrational, perverse or illogical in the reasoning of the presiding member in this case. The presiding member was unable to accept that the applicant was taken to three separate locations by the Sri Lankan authorities and ultimately taken blindfolded to Colombo and detained there for three months in connection with a simple allegation that he had been supplying batteries and fuel to the LTTE. I do not necessarily agree with the reasoning of the presiding member. It is conceivable that the Sri Lankan authorities thought that they may have caught a bigger fish than might have been thought apparent from the nature of the accusations. The applicant’s eye injury could have marked him out as a combatant. It is possible that a different presiding member might have reached different conclusions on the evidence. However, mere disagreement with the analysis undertaken by the presiding member does not establish perversity, illogicality or irrationality. The conclusions reached by the presiding member were reasonably open to her on the material before her. In that regard I adopt Mr Hooker’s submissions set out above at paragraph 11. I find that the applicant has failed to make out either of the grounds of review advanced.
I will therefore dismiss the application.
As to costs, this has been a reasonably complex matter involving significant legal argument. In the circumstances, an order for costs somewhat higher than I would ordinarily allow is called for. An order for costs fixed in the sum for $5,000 in this matter is, in my view, appropriate. I will so order.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 3 October 2003
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