FEDERAL COURT OF AUSTRALIA

MZAIR v Minister for Immigration and Border Protection [2015] FCA 1316

THE COURT ORDERS THAT:

1.    The appellants have leave to amend their notice of appeal and the notice be amended nunc pro tunc to substitute for the grounds presently stated therein the following single ground of appeal:

The Federal Circuit Court erred in failing to find that the decision of the Refugee Review Tribunal was affected by jurisdictional error in that the tribunal engaged in an illogical or irrational line of reasoning in respect of the first appellant’s credibility.

2.    The appeal be dismissed.

3.    The appellant pay the costs of the first respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Before the Court is an application to amend the Notice of Appeal in an appeal from a judgment of the Federal Circuit Court of Australia given on 17 June 2015. In the proceeding from which that judgment arose, the appellants’ applications for review of a decision of the Refugee Review Tribunal published on 27 June 2014 were dismissed. In that decision, the Tribunal had affirmed an earlier decision of a delegate of the respondent Minister not to grant the appellants’ Protection (Class XA) visas under the Migration Act 1958 (Cth) (“the Act”).

2    Of the three grounds of appeal sought to be relied on, two would involve points of substance not taken in the Federal Circuit Court. No explanation has been provided as to why these points were not taken below. The appellants were legally represented at all stages in the Tribunal, and their application for review in the Federal Circuit Court was professionally drawn. A period of almost 12 months passed between the publication of the Tribunal’s reasons and the hearing in the Federal Circuit Court. There was ample time for the appellants to have given those reasons thorough scrutiny and to have marshalled the grounds and arguments upon which they proposed to base their application for review.

3    In the second of the appellants’ proposed grounds they would wish to contend that –

... the decision of the Refugee Review Tribunal was affected by jurisdictional error in that it denied the appellants a fair and just hearing by concluding that the threat letter was not authentic without inviting submissions or comment on the issue.

The “threat letter” referred to was the letter dealt with in the following passage of the Tribunal’s reasons.

The [first appellant], has produced a translated letter from [Lashkar-e-Islam] which threatens him for getting an education in Australia. [the Department of Foreign Affairs and Trade “DFAT”] have commented that ‘the incidence of fraudulent documentation in Pakistan is high’. When I put this to him at the hearing that this may make me think that the document was not authentic, he said when they came to his house he believed the matter was serious. Whilst this DFAT information would lead me to conclude on its own that the document was not authentic, given the other concerns I have about the [first appellant’s] credibility, I find this document is not authentic and that its provision detracts from the applicant’s overall credibility. I note that the agent has invited the Tribunal to confirm the authenticity of the threatening letter but given the concerns I have with the [first appellant’s] credibility and given that it has purportedly been issued by a Sunni extremist group it is clearly not a document that the Tribunal or Australian government would be able to verify.

4    Counsel for the appellants conceded that this proposed ground could not succeed if the only evidence about the way the Tribunal dealt with the letter was as set out above in its reasons. That was the situation before the Federal Circuit Court and remains the situation here. But the appellants seek to address that deficiency by tendering a tape of the hearing before the Tribunal which will, it is said, demonstrate, more fully than the passage to which I have referred does, the terms in which, and the extent to which, the Tribunal in fact alerted the first appellant to the prospect that it might not accept the authenticity of the letter. The tape was not in evidence before the Federal Circuit Court, and would have to be received in this Court as new evidence.

5    The appellants’ difficulty here is that the requirements of r 36.57(2) of the Federal Court Rules 2011 have not been complied with, either in a timely way or at all. Neither has application been made for the Court to dispense with compliance with that subrule. Indeed, counsel for the appellants, in reply in relation to this second ground, made no reference to the Minister’s reliance on r 36.57. The appellants’ omission to comply with the provision is, in my view, a matter of substance, not merely of form. In the circumstances, I am not prepared to admit the tape into evidence on the appeal.

6    As indicated, that has the consequence that the evidentiary basis for the viability of the second proposed ground is lacking. Together with the considerations of timing to which I have referred, and in the absence of any explanation why this point was not raised below, that situation inevitably leads to the conclusion that leave to introduce this ground into the appeal should not be granted.

7    In the third of the appellants’ proposed grounds, they would wish to contend that –

Tthe decision of the Refugee Review Tribunal was affected by jurisdictional error in that it:

(a)    denied the Appellants procedural fairness; and/or

(b)    constructively failed to exercise its jurisdiction;

by giving only limited weight to the statutory declarations submitted in support of the Appellants’ application.

8    Where it was recorded that only “limited weight” was given to the statutory declarations referred to in this proposed ground was in the following passage in the Tribunal’s reasons:

In making these findings, I have taken into account the statutory declarations of Bakhtiar Muhammad and Muhammad Faisal Mumtaz, but given the very serious issues that I have with the [first appellant’s] credibility, I have given these only limited weight in my assessment. I note that the agent has invited the Tribunal to confirm the veracity of the claim with Mr Bakhtiar Muhammad, however, given the very substantial concerns I have with the applicant’s credibility outlined above, I have decided not to do so.

The argument which the appellants desire to make is that the reference to “limited weight” in this passage could not, as a matter of logic, have accurately reflected the Tribunal’s reasons: either it declined to take the statutory declarations into account at all, in which case it would have constructively failed to exercise its jurisdiction, or it took them into account but rejected them, in which case it was a denial of procedural fairness for the appellants not to have been given the opportunity to deal with whatever concerns the Tribunal had.

9    The statutory declarations had been forwarded to the Tribunal by the appellants’ solicitor, and at their own initiative, some time after the hearing of their claims in the Tribunal, but before the Tribunal had reached its decision in the case. In fact, they were not statutory declarations at all, but signed statements, a distinction which, for present purpose, may be treated as not involving a difference. Subject to that, the statements were by two men who knew the first appellant, and provided some corroboration of the evidence he had presented to the Tribunal. To a limited extent, the contents of the statements appeared to be independent of the first appellant, but for the most part they were based on things said to the makers, or documents shown to them, by the first appellant himself.

10    In SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 [24]-[26], Lander J said:

The appellate process is to correct error. If a party is entitled to raise issues for the first time on appeal, the court will become de facto the primary court. That is undesirable. It is particularly undesirable where the appellate jurisdiction of the Court is being exercised by a single judge and any right of appeal from the single judge is to the High Court. If a party is entitled to raise an issue for the first time on appeal in this Court, the High Court will be burdened by applications to leave to appeal from judges sitting alone who have not had their decision reviewed. That must be particular undesirable from the High Court’s point of view.

Moreover, to allow new grounds of appeal is to defeat the purpose of a legislation which requires that judicial review of a decision of the Refugee Review Tribunal be within solely the jurisdiction of the [Federal Circuit Court]. If new grounds are advanced on appeal, it effectively means that the jurisdiction is being exercised by this Court.

Of course, appeals of this kind are particularly sensitive: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788. It is particularly important to the party seeking refugee status that that party’s claim be considered by the Tribunal in accordance with law. That said, however, it seems to me that it is necessary to protect the integrity of the appellate jurisdiction that parties be bound by the way in which they conducted their application for judicial review before the [Federal Circuit Court]: H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43.

11    As I have mentioned above, there is no explanation for the appellants’ failure to put this point to the Federal Circuit Court, notwithstanding the lengthy period which had elapsed since the Tribunal published its reasons. Realistically, the proposed third ground must be treated as the appellants, having failed on the grounds upon which they did prosecute their application for judicial review, now seeking to run a case which might have been, but was not, advanced at first instance. As Lander J pointed out in the case referred to, to allow an amendment in circumstances such as these would have the effect of conflating the distinction between the original jurisdiction of the Federal Circuit Court and the appellate jurisdiction of this Court.

12    If there were obvious merit in the ground now sought to be argued – such that it could easily be seen that an injustice would be done if the amendment were not allowed – the Court would, notwithstanding the considerations to which I have referred, be sympathetically disposed to the appellants’ application. But the most that can be said for the point, in my view, is that it is fairly arguable. From what I have been told by counsel for the appellants, making the point good would involve a close analysis of the jurisprudential basis of a number of Full Court and High Court authorities, none of which were decided on facts closely similar to those of the present case, and in some respects would involve an examination of the limits of Div 4 of Pt 7 of the Act. All that can be said is that the case proposed by the appellants might succeed, but then again it might not.

13    At base, the problem for the appellants is the Tribunal’s statement that it did take the statutory declarations, as it called them, into account, but gave them “limited weight”. This statement is not self-evidently indicative, as submitted on behalf of the appellants, of a refusal to take the statutory declarations into account at all. By the time the statutory declarations were provided to the Tribunal, it had been exposed to all of the other material in the case, and had conducted its hearing, at which the first appellant appeared and gave evidence. At least as a broad approximation (such as will be sufficient on this application to amend) there is a very obvious sense in which the Tribunal’s thinking about the statutory declarations may have been, as it effectively said, affected by the view which it otherwise took in relation to the first appellant’s credibility. That was its task. It was a task which the appellants implicitly invited the Tribunal to perform when they forwarded the statutory declarations to it.

14    I have not, therefore, reached the conclusion that the case which the appellants would or wish to conduct under the proposed Ground 3 – either with respect to the procedural fairness point or with respect to the constructive failure to exercise jurisdiction point – is obviously a meritorious one. Taken alongside the considerations of timing and the absence of an explanation as to why the ground was not advanced below with which I have already dealt, this leads to the conclusion that the application to amend to introduce this proposed new ground should be rejected.

15    In the first of the appellants’ proposed grounds, they would wish to contend that “the Federal Circuit Court erred in failing to find that the decision of the Refugee Review Tribunal was affected by jurisdictional error, in that the Tribunal engaged in an illogical or irrational line of reasoning in respect of the first appellant’s credibility.” As it was explained on the present application, this ground would relate to the following passage in the reasons of the Tribunal:

Country information set out above and that referred to in the delegate’s decision indicates that [Lashkar-e-Islam] is a very violent organisation. It is not plausible or credible in the circumstances that the applicant would not take a threatening letter from them seriously (as stated in his statutory declaration) and that after receiving a threatening letter warning him not to return to Australia and to participate in education that he would ignore this and then return to his home area in Pakistan with his wife and new born child. It is even more implausible and less credible that having disobeyed this threat, that the [Lashkar-e-Islam] would visit him and give him a further warning without attempting to harm him for his blatant disobedience. At the hearing the applicant stated that his wife was homesick and they could not live without their parents and that he took a chance but it was not a good idea. The agent has referred to Tribunal decisions whereby the Tribunal has accepted that applicants have faced multiple threats from Taliban groups and submitted that the applicant was not harmed because he promised he would follow their demands. I am not obliged to follow the reasons in other Tribunal decisions and I must come to my own conclusions on the country information before me and the individual circumstances of these applicants. I note that in 1308491 the Tribunal did not accept the threat letter as genuine whilst the cases involved claims of threatening calls made to the applicants’ fathers. I have also considered the country reports cited by the agent and I accept that Taliban groups do issue warnings to potential victims. However, I do not accept in the case before me the [Lashkar-e-Islam] would fail to take any serious action against a person who had so clearly ignored their precise warning as claimed. I accept that people can be homesick but in all the circumstances, I do not accept that the applicant would return to his home area with his family if such a threat from such a violent organisation had been made and he had in fact acted contrary to their demands.

Although the subject matter of the first appellant’s claim to fear persecution if he and his family returned to Pakistan is clearly visible in this extract from the Tribunal’s reasons, the principal purpose of the Tribunal in the way it dealt with this subject was to set out the first of what were three quite lengthy indications as to the concerns which it had about the first appellant’s credibility.

16    It is in the context of the Tribunal’s expression of those concerns that the appellants now seek an amendment to introduce this first ground of appeal. It is said that it was neither rational nor logical for the Tribunal to regard it as a mark against the first appellant’s credibility that he did not take the letter from Lashkar-e-Islam (“LeI”) seriously, and that LeI would go no further than to provide him with a further warning on his return to Pakistan after he had blatantly disobeyed, the formally expressed, quite chilling, warning set out in the letter referred to.

17    Counsel for the appellants describes this proposed ground of appeal as a reconfiguration of a corresponding ground which was advanced in the Federal Circuit Court. Counsel for the Minister offered no resistance to that characterisation of what is now proposed. One of the grounds advanced by the appellants in the Federal Circuit Court was the following:

The Tribunal engaged in legal error by coming to a conclusion that was so illogical or irrational or unreasonable that no reasonable decision maker could have reached it.

Particulars

(a) In paragraph 44 of its Decision Record, the Tribunal made a finding that Taliban groups do issue warnings to potential victims;

(b) The Tribunal engaged in illogical or irrational speculation that the First Applicant had not received a warning letter or a verbal warning from the Tribunal because they would have taken serious action against him instead of warning him.

So far as I can see, the first ground proposed to be introduced by the appellants differs from the corresponding ground which they advanced in the Federal Circuit Court in detail only. In substance, the complaint which they now seek to make corresponds closely with the complaint which they made at that level, and which was rejected. In the circumstances, I can see no reason not to allow this amendment, and I shall do so.

18    The next question is whether the appeal should be upheld insofar as it is based upon this new first ground of appeal. The way the Federal Circuit Court dealt with the ground which was advanced before it was as follows:

The applicants claim that the tribunal’s decision was illogical because it involved speculation that the first applicant had not received a warning letter because, if he had, the Taliban would have taken serious action against him instead of warning him a second time.

As set out above, the tribunal, in the first paragraph at CB354, set out its reasons for not accepting that the first applicant had been threatened as he claimed “by Taliban groups”. Matters of plausibility and credibility are almost uniquely matters within the purview of the tribunal. In any event, it does not appear to me that the tribunal was illogical or irrational, in the required sense, in drawing the conclusions that the applicant had not been threatened as he claimed. This ground is not made out.

19    On appeal, counsel for the appellants focused upon the second and third sentences in the reasons of the Tribunal earlier set out. With respect to the first sentence, it was pointed out that the Tribunal did not, in this part of its reasons, advert to the evidence which had been before it which provided a rational basis for the first appellant not having taken the letter seriously. That evidence was in one of the two statutory declarations to which I have referred in connection with the appellants’ proposed third ground. The declaration was made by a friend of the first appellant who lives in Pakistan and to whom, according to what he said in the declaration, the first appellant showed the letter from LeI upon which he relied in the Tribunal.

20    Having referred briefly to the contents of that letter and to the threats contained in it, the maker of the so-called declaration stated that the first appellant told him that the letter might not be from the Taliban and would, by which I understand he meant “might”, be a prank from someone, or would, that is “might”, be from his relatives with whom he did not have a good relationship, and who did not want him to go back to Australia for education. As this ground was supported in argument before me today, the appellants’ point is that for the Tribunal to have marked the first appellant’s credibility down because of the conspicuous inconsistency between the terms and self-evident solemnity of the letter and his statement that he did not take it seriously, without having at least adverted to, much less explained, the material contained in the statutory declaration, was both irrational and illogical.

21    With respect to the third sentence in the passage set out from the Tribunal’s reasons above, counsel submitted that it was neither rational nor logical for the Tribunal to have said that LeI was a very violent organisation, that statement having been based on country information to which the Tribunal referred, and then to have leapt to the supposition that LeI would have harmed the first appellant and his family rather than simply visiting him and providing him with a further warning about continuing in the conduct which was considered to be unacceptable.

22    Now, I must say that I had some difficulty in understanding why it was said that this was an irrational or illogical step for the Tribunal to have taken, but I am prepared to treat the appellants’ submission as one which proposes, in effect, that with no more sound evidentiary basis than a finding that LeI was a very violent organisation, it was not defensible, logical or rational to conclude that LeI would necessarily have inflicted harm on the first appellant and his family rather than warning him, in the circumstances here being dealt with. Thus it was said that it was neither rational nor logical for the Tribunal to mark down the first appellant’s credibility for the reason that he presented it with a version of events which went no further than to have that feature.

23    It is uncontroversial that the law to be applied in this area of legal discourse is that articulated by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 647 to 650. Their Honours said:

In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

I think what their Honours meant in the final sentence of this extract was that a court should be slow to interfere, although not unwilling to do so in an appropriate case, and I understand their Honours’ reasons accordingly. Later in those reasons, Crennan and Bell JJ said (240 CLR at 649-650 [135]):

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision-maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision.

In my view, the same could be said of the relevant parts of the Tribunal’s reasons in this case.

24    In relation to the second sentence in the extract, and assuming that the Tribunal acted by reference to all of the evidence before it, including the statutory declaration upon which the appellants relied, it could hardly be denied that a decision-maker acting rationally and logically might have regarded it as neither plausible nor credible that the first appellant would not take the letter from LeI seriously. Such a decision-maker might very well have read the statement by the maker of the statutory declaration that he told the first appellant that the letter might not be from the Taliban at face value, that is to say, going no further than alerting the first appellant to the prospect that the letter might be quite innocent. Such a decision-maker would not be acting irrationally or illogically, in my view, to perceive as neither plausible nor credible a response on behalf of the first appellant that he did not take the letter seriously.

25    It must be remembered here that the Tribunal had a photocopy of the letter before it, both as originally written and as transcribed into English, and from the transcription it is held out as being written on the letterhead of LeI and as having been sealed by the chief of LeI and signed by him. It is also to be recalled that the first appellant himself, in the central aspects of the case which he prosecuted before the Tribunal, relied upon the reality of the threat contained in the letter.

26    With respect to the third sentence in the passage set out, the postulate that LeI was a very violent organisation was clearly something that the Tribunal was entitled to accept, and the contrary has not been submitted today. This is an expert Tribunal charged specifically with dealing with issues of claims of persecution. The court is in no position to deny the existence of a logical and rational link between the violence of that organisation and the implausibility of it having gone no further than to give the first appellant a further warning when his disobedience came to its attention. I am in no position to say that the making of that link, and the perception of the consequences which it had for the Tribunal’s view of the first appellant’s credibility, are not steps which could be rationally and logically taken by any Tribunal acting reasonably.

27    For the reasons which I have given, I am not persuaded that the way in which the Judge in the Federal Circuit Court disposed of the corresponding ground of review was in error. Nor am I persuaded that the reformulated ground in this court provides any sufficient basis to uphold the appeal from the Federal Circuit Court’s judgment.

28    I reject, therefore, the appellants’ first ground. I disallow the second and third grounds.

Associate:

Dated:    4 December 2015