FEDERAL CIRCUIT COURT OF AUSTRALIA
| XIE v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2839 |
| Catchwords: MIGRATION – Application to review decision of Migration Review Tribunal (now the Administrative Appeals Tribunal) – whether the Tribunal’s reasoning or conclusions were illogical, irrational or unreasonable – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.116 Migration Regulations 1994 (Cth), Schedule 8, condition 8202 |
| Applicant: | HAOMENG XIE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 686 of 2014 |
| Judgment of: | Judge Barnes |
| Hearing date: | 1 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 4 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stewart SC |
| Solicitors for the Applicant: | Juris Cor Legal |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 686 of 2014
| HAOMENG XIE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) dated 17 February 2014. The Tribunal affirmed a decision of a delegate of the First Respondent to cancel the Applicant’s Subclass 573 Student (Temporary) (Class TU) visa.
The Applicant first travelled to Australia in July 2010 as the holder of a student visa.…
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Details
- Case
- [2016] FCCA 2839
- Decision Date
CaseChat Overview and Summary
This matter came before Judge Barnes concerning an application by XIE (the Applicant) against the Minister for Immigration. The core of the dispute involved allegations of jurisdictional error by the Administrative Appeals Tribunal (the Tribunal) in its decision-making process.
The legal issues before the court centred on whether the Tribunal's findings, particularly concerning the Applicant's evidence about taking medication for depression, amounted to jurisdictional error. This involved an examination of the concept of "illogicality" or "unreasonableness" in administrative decision-making, and whether any such lapses in logic were so significant as to vitiate the Tribunal's decision. The court also considered whether the Tribunal had sufficient evidence upon which to base its findings, and whether any particular finding was critical to the overall decision.
Judge Barnes, referencing previous authorities such as *SZMDS*, *SZOCT*, *SZMWQ*, *SZNKO*, *Singh*, and *SZRLQ*, reasoned that not every instance of illogicality or a lapse in reasoning constitutes jurisdictional error. Such error will only arise where a decision is one that no rational or logical decision-maker could arrive at on the given evidence, or where the decision-making process or outcome is arbitrary or capricious. The court noted that a particular finding might not be critical if the overall decision rests on multiple findings. In this case, the Tribunal did not make a definitive "conclusion" that the Applicant was regularly taking medication. Instead, it understood the Applicant's evidence to include a claim of regular medication use. The transcript of the hearing revealed an exchange where the Applicant stated he treated his depression with "taking medication" but could not recall the specific names of the prescribed drugs, citing the passage of time. The Tribunal questioned the Applicant's ability to recall the medication, given the recency of the treatment and the potential for documents to be fabricated in China, but the Applicant maintained the genuineness of his medical reports. The court considered whether the Applicant's inability to recall the medication names, in the context of the Tribunal's questioning, rendered the Tribunal's subsequent assessment of the evidence illogical to the point of jurisdictional error.
The legal issues before the court centred on whether the Tribunal's findings, particularly concerning the Applicant's evidence about taking medication for depression, amounted to jurisdictional error. This involved an examination of the concept of "illogicality" or "unreasonableness" in administrative decision-making, and whether any such lapses in logic were so significant as to vitiate the Tribunal's decision. The court also considered whether the Tribunal had sufficient evidence upon which to base its findings, and whether any particular finding was critical to the overall decision.
Judge Barnes, referencing previous authorities such as *SZMDS*, *SZOCT*, *SZMWQ*, *SZNKO*, *Singh*, and *SZRLQ*, reasoned that not every instance of illogicality or a lapse in reasoning constitutes jurisdictional error. Such error will only arise where a decision is one that no rational or logical decision-maker could arrive at on the given evidence, or where the decision-making process or outcome is arbitrary or capricious. The court noted that a particular finding might not be critical if the overall decision rests on multiple findings. In this case, the Tribunal did not make a definitive "conclusion" that the Applicant was regularly taking medication. Instead, it understood the Applicant's evidence to include a claim of regular medication use. The transcript of the hearing revealed an exchange where the Applicant stated he treated his depression with "taking medication" but could not recall the specific names of the prescribed drugs, citing the passage of time. The Tribunal questioned the Applicant's ability to recall the medication, given the recency of the treatment and the potential for documents to be fabricated in China, but the Applicant maintained the genuineness of his medical reports. The court considered whether the Applicant's inability to recall the medication names, in the context of the Tribunal's questioning, rendered the Tribunal's subsequent assessment of the evidence illogical to the point of jurisdictional error.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
After quoting the remarks of Crennan and Bell JJ in SZMDS at [131] his Honour continued:What was said by Heydon J at [78],… in my view, while differently expressed, is not at odds with what was said by Crennan and Bell JJ. Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based. Illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision. See, for example, SZOCT (at [84]) per Nicholas J and SZMWQ (at [55]) per Rares J (emphasis added). In SZNKO Barker J pointed out (at [111]), consistent with the approach taken by Crennan and Bell JJ in SZMDS, that illogicality or irrationality sufficient to give rise to jurisdictional error meant that the decision of the Tribunal was one at which no rational or logical decision-maker could arrive on the same evidence, that not every lapse in logic would give rise to jurisdictional error, and that it was necessary to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the finding that it did on the material before it. Relevantly, in the circumstances of that case it was also suggested that the particular finding in respect of which complaint was made did not appear to be critical in relation to the Tribunal decision (which was made primarily by reference to a number of other findings and not just the impugned finding). While it is clear from Singh that legal unreasonableness may arise both in the decision-making process and in the outcome of the Tribunal review, in SZRLQ Yates J suggested (at [66]) not only that the appellant’s criticism of a particular concern expressed by the decision-maker was misplaced in relation to the actual finding made, but also pointed out that it was but one matter amongst a number of others that had led the decision-maker to question generally the completeness and reliability of the appellant’s evidence. In those circumstances his Honour was of the view that, regardless of whether the particular criticism could be made of that aspect of the decision, it could not be said that the decision-maker’s state of non-satisfaction on the ultimate question for determination was, as a consequence, arbitrary or capricious in the sense considered in SZOCT and SZNKO. As to the specific issues raised by this ground, first, the Tribunal did not reach a “conclusion” that the Applicant was regularly taking medication. The issue of whether there was “no evidence” for a conclusion did not, strictly speaking, arise in this context. Rather, the Tribunal understood that the Applicant’s evidence involved a claim that he had been taking prescribed medication on a regular basis. The Applicant told the Tribunal he had treated his depression with “taking medication”. It was in that context that he was asked to provide the names of the medication. The following exchange occurred at the hearing (transcript p.5-6):[TRIBUNAL MEMBER]: When did it start? When did it finish? How did you treat it? What happened? [INTERPRETER]: Well, it was – it started in the second half of 2012, and I was very agitated, always did things that’s (sic) out of the ordinary. Then, I went to see the school psychologist at the end of the year, and he said I’m – have a very severe depression. So I went on the leave. I went back to China to treat it. I’ve provided the records. [TRIBUNAL MEMBER]: How did you treat it?[INTERPRETER]: Talk to the psychologist, and taking medication. [TRIBUNAL MEMBER]: What medication were you taking? [INTERPRETER]: Well, the name of the medicine could be called … or it’s the Chinese name. [TRIBUNAL MEMBER]: Mr [Applicant], could you write it down?[INTERPRETER]: I don’t know how to write it in English.[TRIBUNAL MEMBER]: Well, write it down in Chinese.[INTERPRETER]: I don’t know if it’s in this …[TRIBUNAL MEMBER]: … I’m just showing the interpreter your medical report, which has the medication which you’re supposedly prescribed, to see whether that’s the one that you’ve mentioned. [INTERPRETER]: That’s on the medical records. [TRIBUNAL MEMBER]: Well, the English translation has the – your medical report shows three medications that you have been prescribed. [INTERPRETER]: Yes. [TRIBUNAL MEMBER]: Can you remember what they were? [INTERPRETER]: Too long ago.[TRIBUNAL MEMBER]: It was too long ago? [INTERPRETER]: Yes.[TRIBUNAL MEMBER]: It was about a year ago. Less than a year ago. [INTERPRETER]: Yes. [indistinct] this medicine too much, and …[TRIBUNAL MEMBER]: So you were prescribed three medications. Can you tell me what they were? I don’t want you to be reading off your report. I want you to remember, if you can, which medication you were prescribed. So why not --- [INTERPRETER]: Well, because the second half of last year, I became much, much better, so I really didn’t remember the medicine. [TRIBUNAL MEMBER]: The [indistinct] can buy pretty much any document in China, so one of the question – one of the things that we will be looking into is whether the medical reports you have presented are, in fact, genuine documents. And if you’re taking medication for more than a year, but you can’t remember what it is?[INTERPRETER]: Well, I really didn’t buy those documents. I swear.
Ratio Decidendi
Legal Principle Established
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