FEDERAL COURT OF AUSTRALIA

SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58

FEDERAL COURT OF AUSTRALIA

SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58

CORRIGENDUM

In the Reasons for Judgment of the Honourable Justice Reeves:

1.    in [113], delete the reference to:

(a)    “[23]–[25]” and insert in lieu thereof “[46]–48]”;

(b)    “[26]–[27]” and insert in lieu thereof “[49]–[50]”;

(c)    “[28]–[29]” and insert in lieu thereof “[51]–[52]”;

(d)    “[30]–[31]” and insert in lieu thereof “[53]–[54]”; and

(e)    “[34]–[36]” and insert in lieu thereof “[57]–[60]”.

2.    in [114], delete the reference to “[72]–[79]” and insert in lieu thereof “[95]–[102]”.

3.    in [115], delete the reference to “[85]–[87]” and insert in lieu thereof “[108]–[110]”.

Associate:

Dated:    29 May 2012

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

RARES J:

1    I have had the privilege of reading the reasons prepared by McKerracher J in draft. I gratefully adopt his outline of the facts. I have reached the same conclusion as his Honour but prefer to state my own reasons.

wHAT IS IRRATIONAL, ILLOGICAL AND NOT BASED ON FINDINGs OR INFERENCES of FACT SUPPORTED BY LOGICAL GROUNDS?

2    There are differences in reasoning apparent in the three separate judgments in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 as to what will suffice to support a finding that a decision of the decision-maker’s state of satisfaction that a statutory criterion had or had not been met is irrational, illogical, and not based on findings or inferences of fact supported by logical grounds. That formulation derived from what Gummow J had said in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 656-657 [141]- [145]: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 66-67 [34], see too at 67 [35]-[36] per McHugh and Gummow JJ: see too: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ, cp the view of Deane J at 367.

3    In SZMDS 240 CLR at 632 [77]-[79] Heydon J reasoned that a decision as to satisfaction was not illogical if the issue was one on which minds might differ because, for example, the difference was one of degree, impression and empirical judgment. His Honour inferred that the decision-maker there had selected a major premise as the foundation of her reasoning and operated on that premise, even though she had not stated it (240 CLR at 631 [74]-[75]. Crennan and Bell JJ held that illogicality or irrationality sufficient to give rise to jurisdictional error meant that, where the question was whether a decision-maker had been satisfied of a matter, the decision to which he or she came was one at which no reasonable decision-maker could arrive on the same evidence (240 CLR at 647-648 [130]). Their Honours appear to have decided that where a decision-maker gives reasons and those reasons do not reveal a logical or rational path of thought, but the decision is one to which some logical or rational mind could have come, even if no logic or rationality appears in the reasons given, a jurisdictional error will not be found. At least, that is what I understand their Honours to be saying in the following passage (240 CLR at 648 [131]; see too at 649 [135]):

“The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.” (emphasis added)

4    Their Honours went on to say that the correct approach was to ask whether it was open to the decision-maker “to engage in the process of reasoning in which it did engage and make the findings it did make on the material before it” (240 CLR at 648 [133]).

5    In dissent Gummow ACJ and Kiefel J characterised the issue as being whether the decision-maker made a jurisdictional error having regard to the reasons he or she gave in response to a statutory requirement to give reasons (240 CLR at 624 [36]) However, they were anxious to maintain the distinction between judicial and merits review of administrative decision-making by emphasising (following Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) that reasons are meant to inform and are not to be scrutinised in an over-zealous fashion (240 CLR at 623-624 [35]). They went on to say (240 CLR at 624 [39]):

“The second distinction concerns attacks upon the exercises of discretionary power which are said to be unreasonable in the sense attributed to Associated Provincial Picture Houses Ltd v Wednesbury Corporation ([1948] 1 KB 223). The concern here is with abuse of power in the exercise of discretion, again on the assumption that the occasion for the exercise of discretion had arisen upon the existence of any necessary jurisdictional facts (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1169-1170 [20], 1177-1178 [67]-[69], 1194 [174]; 198 ALR 59 at 64, 75-76, 98-99). Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review (see, in particular, the remarks of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 37-38) will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view.”

6    In the end, as the divergence in views in SZMDS 240 CLR 611 shows, Gleeson CJ was correct to say in Applicant S20 198 ALR at 64 [20]:

“As with illogicality and irrationality, unreasonableness is a protean concept, and may require closer definition where it is said to be relevant to judicial review of an administrative decision.”

He also observed it is often unhelpful to discuss, in the abstract, the legal consequences of irrationality or illogicality or unreasonableness of some degree. In such a context it is necessary to identify and characterise the suggested error and then relate it to the legal rubric under which the decision is challenged: 198 ALR at 62 [9]; see too MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441 at 450-451 [42]-[45] per Keane CJ, Perram and Yates JJ and Cane P and Donald L, Principles of Administrative Law (Oxford, 2008) pp 155-156 . Emphatic judicial disagreement with a decision-maker’s reasoning is not a sufficient basis to make out this ground: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 176-177 [34] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

7    Australian administrative law principles have developed differently to the approach in the United Kingdom recently distilled by Lord Mance JSC in AXA General Insurance Ltd v HM Advocate [2011] 3 WLR 871 at 911 [97], namely:

“In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410 Lord Diplock said of irrationality in the Wednesbury sense, that it “applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”. There can be decisions – to take a familiar extreme example, a blatantly discriminatory decision directed at red-headed people - where, irrespective of any limitation on the purposes for which the decision-maker might act, a court would regard what has been done as irrational, because of the way in which the decision operated.”

8    Another approach to this issue has been taken by the Supreme Court of Canada as can be seen in its recent decision in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) [2011] 3 SCR 708. However, in Canada as Abella J explained in giving the reasons of the Court, the standard for judicial review of administrative decisions is reasonableness ([2011] 3 SCR 708 at [8]). At [14], her Honour explained that it was not the law in that jurisdiction that:

“the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one for the result (Donald J. M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at §§12:5330 and 12:5510). It is a more organic exercise — the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir [v New Brunswick [2008] 1 SCR 190] when it told reviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes” (para. 47).”

9    However, the Constitutional safeguard supplied by s 75(v) makes every officer of the Commonwealth amenable to judicial review. This recognises the importance of subjecting administrative decision-makers to the rule of law: cf Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 513 [103]. Despite this, the protean concepts of illogicality, irrationality and unreasonableness, as this Court is bound to apply them, have produced a result that appears to authorise decision-makers to act on and accept information in anonymous letters as the truth. No-one in the community would like to think that decision-makers exercising power given to them by an elected Parliament can decide a matter as serious as whether a person should be given a protection visa by accepting the contents of an anonymous letter as fact. But, that is what the authorities that bind us appear to require this Court to find in a case like the present where the Tribunal did just this.

10    An analogue of s 430(1) of the Migration Act is s 25D of the Acts Interpretation Act 1901 (Cth). In Dalton v Deputy Commissioner of Taxation (1986) 160 CLR 246 at 250 Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ said that the purpose of the requirement to give reasons “appears to be to enable a person affected by a decision for which reasons must be given to be supplied with findings and a reference to the evidence or other material on which they are based so that he may shape the course of his future conduct accordingly”. And, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69] McHugh, Gummow and Hayne JJ said that the obligation in s 430 “ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion”.

11    It is one thing for reasons to be expressed inelegantly or, even, clumsily, provided that what is recorded portrays a reasoning process. But the dividing line between what is not rational or logical reasoning and a mere error of fact is far from clear. That can be because, as experience teaches, fact finding often has few bright lines for a decision-maker. Evidence is usually weighed as a whole so that an error in finding one fact can impact on the integrity of the whole decision. So much is recognised by the criminal appeal process from decisions by a jury that a person is guilty of an offence. If inadmissible evidence is put before a jury and they convict, generally the verdict will be set aside because the impact of the inadmissible material cannot be gauged. Where administrative decision-makers, such as the Tribunal, must give reasons, a Court can see how the decision was reached. So after making appropriate allowances for the decision-maker’s use of less than perfectly phrased language to convey his or her thought processes, a Court should be able to see whether those thought processes were, in substance, irrational or illogical vehicles to arrive at the decision.

12    Irrationality and illogicality as grounds for judicial review are distinct from an assertion that the decision-maker merely made a wrong finding of fact. Ordinarily, a decision-maker will not make an error of law or a jurisdictional error simply by making a wrong finding of fact: City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 153-154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ. After all, the jurisdiction so exercised, is to make findings of fact not to make findings of fact that are necessarily correct. However, if the fact wrongly found is a jurisdictional fact, the decision will be amenable to judicial review. That is because the decision-maker cannot create or negate the existence of his, her or its jurisdiction by an erroneous finding or supposition that the jurisdiction exists or does not exist: Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 570-571 [64], 572-573 [67]-[68] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; cf too Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 200 per Dixon J, 258 per Fullagar J; Plaintiff S157/202 211 CLR at 512-513 [102].

13    It is at this point that a difficulty arises. Under s 65(1) of the Act, the Minister or decision-maker must grant a visa “if satisfied” of particular matters and must refuse to grant it if he or she is not so satisfied. The Minister’s or decision-maker’s state of satisfaction is a jurisdictional fact. Perhaps the key to its reviewability may be to return to the approach of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119 where he said the following, which was approved as accurate by Brennan CJ, Toohey, Gummow and McHugh JJ in Wu Shan Liang 185 CLR at 275-276:

“It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.” (emphasis added)

14    In that passage Gibbs J distinguished between the decision-maker acting merely arbitrarily or capriciously and arriving at a decision that was so unreasonable that no reasonable decision-maker could properly have so decided. No recent consideration has been given to what might be within the concept of merely arbitrary and capricious conduct.

15    The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error.

16    Unfettered by the authorities to which I have referred, I would have concluded that the Tribunal’s use of the anonymous letter as evidence of the fact that the appellant had fabricated his claims was irrational, illogical and unreasonable. The author of the letter was unknown and had given no reason why he or she (1) knew the appellant, (2) knew the information conveyed in the letter, and (3) had not revealed his or her identity. For all the Tribunal knew, the letter could have been written by a former resident in the appellant’s home, or even a malicious person within the staff of the Tribunal or the Department, who had access to material on the appellant’s file. Critically, there was no material before the Tribunal to indicate that whoever was its author had any personal knowledge of the assertions in the letter about the veracity of the appellant’s claims. It is no answer that the Tribunal acknowledged that it had to treat the anonymous allegations with “extreme caution … as the information in them is untested and the author’s motivations completely unknown to the Tribunal and possibly the applicant” ), for it reasoned:

“The fact that a fairly detailed allegation is received to this very effect is also supportive of the ultimate conclusion. That the allegation was made by a person who wishes the applicant ill is undoubted, but the fact that the allegation is able to detail the nature of the fabrication which is supported by an analysis of the evidence provided by the applicant points to that allegation being true.” (emphasis added)

17    The fact that an anonymous letter writer may have access to certain information that is accurate does not logically, rationally or reasonably allow the inference to be drawn that other assertions made by the mysterious source are true. Before such a conclusion can be drawn the basis on which the source makes the relevant assertion must be known. In the example above, a person with access to a file, whether in the appellant’s home or elsewhere, can compose a very convincing letter. But if a decision-maker knew the author was a complete stranger or a person who had misused his or her access to the file but lacked any personal knowledge of the facts he or she was asserting, the decision-maker would treat the letter as scurrilous and ignore it.

18    The situation here is of a letter about whose author nothing is known. But for the authorities to which I have referred, I would have found that the letter was not capable of being treated as containing credible, relevant or significant information that a decision-maker logically, rationally or reasonably could have any regard to at all: cf the very different situations in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 225 CLR 88 at 98-100 [22]-[29] and Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448 at 457-458 [29]-[33] where the identity of the author of the letter was known to the Tribunal, but he or she gave reasons to keep his or her name confidential from the applicant for review.

19    It is difficult to see how it is in the public interest that unknown persons who give no basis for their being in a position to make prejudicial assertions about another person are entitled to any credence in decision-making under the Act: cf VEAL 225 CLR at 98-99 [24]-[25]. Unconstrained by authority, I would have found that to do so is as irrational, illogical and unreasonable as having regard to a person saying that the red headed applicant for a visa should have his claim rejected because he has red hair and is a liar. However, the law appears to be otherwise.

Was the Tribunal’s reliance on the anonymous letter severable?

20    The Federal Magistrate found that the Tribunal had reached its conclusion that the appellant had fabricated his claims, that he feared harm from terrorists associated with the madrassa, independently of the anonymous letter. His Honour reasoned that the Tribunal, having already made the finding, used the information in the letter as supporting its conclusion but this not as a “critical part of the Tribunal’s reasoning”. He held that the Tribunal’s reliance on, or use of, the anonymous letter was severable from its other reasoning. His Honour said that the letter was one piece of evidence before the Tribunal and it was a question for the Tribunal as to what weight it attached to the letter. He held that the Tribunal was entitled to find that what was said in the letter was truthful.

21    Here the letter contained no new facts that the Tribunal did not already have. Rather, it contained a series of pejorative assertions about the appellant’s veracity which the Tribunal treated as facts. The Tribunal said that it had arrived at the same conclusion as to the appellant’s veracity independently but then, significantly, said that the anonymous source’s assertions of fabrication supported its ultimate finding. That said, there was a wealth of other material available to the Tribunal to arrive at its decision. But it supported its ultimate conclusion using that letter. I do not consider that the Federal Magistrate was correct to find that the Tribunal’s reliance on the letter could be treated as severable. That is because the letter went to the issue of, and was taken into account by the Tribunal in making its finding as to, the appellant’s credibility: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 618-619 [26], [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. Thus, it can be seen that on the question of credibility, the Tribunal not only regarded, but also treated, the anonymous letter as credible, relevant and significant to the decision it made: VEAL 225 CLR at 95-96 [16]-[17].

22    It is evident that the Tribunal did not dismiss the letter from its mind in arriving at its credibility finding. It could not be said that merely because the Tribunal had, and gave, other reasons why the appellant should not be believed, the anonymous letter could not have made any difference. First, the Tribunal said that the letter supported its ultimate conclusion. Secondly, the Tribunal had written a letter to the appellant under s 424A of the Act that treated the letter as containing information that could be a reason for its rejection of his claims and invited his response. Thirdly, the letter did not go to a peripheral or minor question: cp Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2004] FCAFC 48 at [60] per Black CJ, French and Tamberlin JJ; Rosenberg v Percival (2001) 205 CLR 434 at 448 [43] per McHugh J. Rather, the letter addressed the fundamental matter of whether the appellant had fabricated all his claims of past persecution. The Tribunal accepted the truth of the anonymous author’s assertion that the appellant had done so as a basis for its ultimate conclusion to that effect.

Conclusion

23    For these reasons, I agree with the orders proposed by McKerracher J.

Associate:

Dated:    27 April 2012

REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

24    The appellant is a citizen of Pakistan. He arrived in Australia on 18 January 2006 and applied for a protection (class XA) visa on 14 February 2006. This appeal relates to a third decision of the Refugee Review Tribunal (the Tribunal) adverse to the appellant, given on 13 July 2010. Before the Tribunal the appellant advanced two bases for his claimed fear of persecution. The first was that he had a well-founded fear of persecution on grounds of imputed political opinion. The second was to fear persecution as a member of a particular social group of homosexuals in Pakistan. This appeal relates only to the first of those grounds.

25    The appellant claimed that in July 2005 while working as a cameraman with GEO Television in Pakistan he accompanied a reporter to file a news report at a madrassa (an Islamic seminary) known as Jamia Manzoor-ul-Islamia (JMI). He contends that on the day after the report was aired on GEO Television on 15 July 2006, the reporter received an anonymous call on his mobile phone. He was threatened by the caller for his anti-Islamic news report. Two days later the appellant received a threatening telephone call. He claimed:

A male voice told me that I would be killed in the name of Allah. This was because I was responsible for filming the JMI madrassa … I confided in my supervisor who told me that the threat was probably just a prank call.

26    His evidence then was that on an evening in September 2005 he was attacked by two men who claimed they were from the JMI organisation. The men bashed and threatened to kill the appellant because, as the men told him, he was involved in filming and preparing the report on the madrassa. He said that there were four further threatening calls to his office, in consequence of which he decided to leave Pakistan.

27    In support of his claims in the third Tribunal hearing, he provided written evidence from the reporter, Mr Badar Munir Chaowdhury and oral and written evidence from two other former co-workers. This evidence went primarily to the filming of the news report at the JMI madrassa and the occurrence of the threatening phone calls.

28    In order to prove the attack itself, the appellant relied upon a document known as a ‘First Information Report’ to the Lahore Police. It records the attack. The original version was in Urdu. It was translated into English (with some errors subsequently found). A corrected translation was produced by the time of the third Tribunal hearing, the subject of this appeal. There were also reports from various publications in the Pakistani print media in English and in Urdu and a letter from the Punjab Union of Journalists (PUJ). As will be seen, the authenticity of some of these documents was rejected by the Tribunal.

29    The central issue in the appeal was whether the Tribunal, by making findings against the appellant based in part on unverified allegations made in an anonymous letter which has been described in this case (as well as others), as ‘the dob-in letter’, committed a jurisdictional error. The Tribunal accepted that the anonymous letter was submitted by a person ‘wishing the [appellant] ill’.

30    In particular, the appellant relies upon jurisdictional error of the kind referred to in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

31    For the reasons which follow, the appeal is dismissed.

BACKGROUND

32    A delegate of the first respondent (the Minister) rejected the appellant’s claim for refugee status on 31 March 2006. The appellant applied for review by the Tribunal in May 2006. The first Tribunal hearing occurred on 22 August 2006 with the first decision of the Tribunal (adverse to the appellant) being given on 5 October 2006 (the first Tribunal decision).

33    An application was made to the Federal Magistrates Court on 8 November 2006 (the first Federal Magistrates Court decision). The grounds for review were:

1.    that a critical mistranslation had occurred in relation to evidence given at the first Tribunal hearing; and

2.    the first Tribunal had failed to address an element in the appellant’s claims.

34    On 20 August 2007, Smith FM upheld the application (the first Federal Magistrates Court decision).

35    The matter was remitted to the Tribunal and heard on 16 and 21 November 2007 (the second Tribunal hearing). By then and after the first Tribunal hearing, the anonymous letter had been faxed to the Tribunal on 28 November 2006. In the second Tribunal decision, no reference was made to the anonymous letter. The second decision of the Tribunal, also adverse to the appellant, was made on 16 June 2008 (the second Tribunal decision).

36    The appellant appealed to the Federal Magistrates Court and proceeded at the hearing on the basis of a further amended application. On 3 September 2009, Raphael FM remitted the matter, once again, to the Tribunal (the second Federal Magistrates Court decision).

The anonymous letter

37    The contents of the anonymous letter are as follows:

Attention: [Tribunal] Sydney Office

Following are important information about the [appellant] named below:

Name:    

[Tribunal] File No:    

[Name and other personal data which was correctly supplied has been withheld in this judgment]

1.    This person has arrived in Australia on business visit visa. He has obtained this visa to enter in Australia from Australian High Commission in Islamabad, Pakistan by providing them the false information regarding his purpose of visits to Australia. In his initial visa application submitted in Islamabad he has mentioned he is going to Australia to cover the cricket series because he has been appointed by the Geo television news, which is incorrect and false information provided to authorities in Islamabad, Pakistan to obtain Australian visa. To confirm this department could make enquiry with GEO television news whether they have ever send any crew to cover Australian cricket series during the time of his arrival in Australia, first time and also the second time.

2.    After his 2nd arrival in Australia he decided to submit his application to seek asylum in Australia on the basis of his made up story to tell the authorities in Australia. Matter of fact is he has never been attacked by the jihadi group and he has never been given a task to make footage of said madrassa mentioned in his application. It is total made up story, authorities could get a copy of that footage from the library of GEO news Television which will bring the truth in open form and authorities would be surprised to know about the [appellant’s] evil minded sharp brain to deceive Australian authorities and obtain permanent residence in Australia.

3.    All the cuttings of Pakistani newspaper are bogus and incorrect. It is true that incident has been published in local and national newspapers, but matter of fact is, that incident had never happened. Because he knows people working in media, he used his contact to get this news published in the print media so he can use it as an evidence to prove himself the genuine victim of the made up story.

4.    There was not any report submitted to any Pakistani state protection agencies such as police. The police report he has provided to authorities in Australia to support his case, is false and has no existence in the police record. This police report is bogus and acquired to use in regards to achieve success in asylum application submitted to Australia.

5.    Matter of fact he was a junior camera man employed by GEO Television in Pakistan. He has misused his employer’s letter pad, which he has made himself and designed as original because he is also trained or qualified graphic designer. GEO news is a world known organization he has taken advantage by using their name and making up false authority letters issued in his name and acquire visa for Australia, by using GEO letter pads. I assure the authorities if they enquire from GEO news there would not be any record of his appointment to any overseas task he has mentioned in his application where he has been sent officially.

6.    He has lied to Authorities he is unable to pay court charges to have his case heard in the court because he is unemployed. He is doing full time job as a process worker in Moore bank Sydney’s south west area. His employee transfer funds for his wages into his bank account with commonwealth bank Australia. He has also another account with ANZ bank Australia.

7.    Following is the detail of his Passport he has used to enter Australia;

[Name and other personal data which was correctly supplied has been withheld in this judgment]

He is very sharp and cunning man who has planed his visits to Australia just for seeking Asylum on the basis of fraud by providing bogus documents in respect of acquire Australian visit visa to enter Australia and then in support of his application made for seeking Asylum in Australia. I assure the Authorities the information I have brought to your attention is true and it will help you to make decision against his application for on shore protection visa.

By:

Anonymous person (emphasis in original)

The appellant’s comments on the anonymous letter

38    On 3 March 2010, prior to reaching the decision under consideration in this appeal (the third Tribunal decision), the Tribunal offered an opportunity, pursuant to s 424A of the Migration Act 1958 (Cth) (the Act), to the appellant to comment on the content of the anonymous letter, amongst other matters. He was informed that the content might be taken into account in reaching an adverse conclusion on his credit.

39    On 16 March 2010, the appellant responded, through solicitors, to the invitation to comment. Insofar as the anonymous letter was concerned, the response from the appellant was in these terms:

Our client does not know for certain the identity of the anonymous informant but suspects that he is a former Pakistani male friend also living in Australia with whom our client used to work. This person spoke English well and our client gave him any letters he got from the Department of Immigration and Citizenship about his refugee claim. He would ask the friend to translate them and help him with them. This friend was familiar with the various grounds of our client’s refugee claim and the various stages at which it was being processed. This was why he knew our client’s date of birth and passport number.

At some stage, our client asked this person whether he wished to haves a homosexual relationship with him. The friend became angry, turned against our client and threatened him. Our client believes that this person then contacted the tribunal in November 2006 when the tribunal was to deliver a decision on our client’s appeal and at that time made allegations that our client’s refugee claim was false.

We submit that the tribunal must exercise extreme caution in determining the weight to be given to allegations made by an anonymous informant, especially because of the possibility that the informant is our client’s former friend who has turned against him. The tribunal is not in a position to question the informant and assess that person’s credibility. The tribunal would also have to seek independent verification from Pakistani police from the newspapers concerned and from our client’s former employer, GEO Television, to properly determine the weight that could be given to these anonymous allegations. We note the tribunal has not taken these steps so far.

40    The third Tribunal decision (some 127 pages in length) was delivered on 13 July 2010. The Tribunal affirmed the decision not to grant the appellant a protection (class XA) visa.

41    The appellant applied to the Federal Magistrates Court for judicial review of the third Tribunal decision on 16 August 2010 and on 20 April 2011 Nicholls FM delivered a decision dismissing the application for review (the third Federal Magistrates Court decision).

42    It is that decision that is under appeal in this Court. The matter was referred by a single judge of this Court to the Full Court under s 25(1AA)(b) of the Federal Court of Australia Act 1976 (Cth) on 2 August 2011.

THE THIRD TRIBUNAL’S REASONS

43    The third Tribunal summarised its findings and the reasons for its findings relevant to this ground of appeal (at [166]-[188]).

General Credibility

44    On several occasions the third Tribunal stressed its rejection of the appellant’s credit.

45    The third Tribunal recorded (at [168]) that beyond the issue of his nationality, it did not believe that the appellant had presented a truthful account of his fears should he return to Pakistan or his past experiences there. It noted that the appellant had, over time, fabricated past harm and experiences, which he believed would found a conclusion as to a current fear of return to Pakistan. The third Tribunal expressed the view (at [168]) that the claim that the appellant was always of interest to people associated with the JMI was untruthful. It also rejected the homosexuality claim.

Fabricated PUJ letter

46    The fears concerning the JMI were said to have arisen from the appellant’s work as a cameraman in Pakistan. His evidence was that those who had attacked him in the past would do so again. The third Tribunal recorded (at [169]) that it did not believe, however, that any such attack occurred and did not believe the claims that threats were made against the appellant. It continued to note (at [170]) that there was now clear evidence that the appellant had presented obviously fabricated material to support his claim of past experiences.

47    The first reference made by the third Tribunal was to a letter dated 15 September 2005 purportedly from the PUJ (PUJ letter). The third Tribunal stated (at [170]) that the PUJ letter was obviously a fabricated document. The document, purportedly corroborating an attack on the appellant and condemning it, was the subject of two separate inquiries by the Tribunal into the current members of the organisation which purportedly produced it and with the purported author. The third Tribunal noted (at [170]) that in both cases, the responses indicated that the document was fabricated and that no such extraordinary meeting had ever occurred and the PUJ letter was not issued by the author as claimed.

48    When the appellant was given the opportunity to comment on the document, he suggested that it was obtained after he left Pakistan and in response to inquiries made on his behalf. The third Tribunal rejected any such explanation (at [171]) saying:

In the Tribunal’s view the document is fabricated, does not contain truthful information, and was obtained to assist the [appellant’s] claims knowing its content to be false. (emphasis added)

Fabricated medical report

49    The concern with documents supporting the application did not end with the fabricated PUJ letter. The medical examination report of the claimed injuries sustained by the appellant indicated that an examination was undertaken on 3 September 2005 and that a report was made to police on 11 September 2005. The third Tribunal noted (at [172]) that as the appellant claimed that the attack did not occur until 11 September 2005, it was clear that no medical examination could have been undertaken in respect of injuries received by the appellant on 3 September 2005.

50    The third Tribunal recorded (at [173]) that the appellant, when commenting on this document, referred to the fact that it makes reference to a police report being made on 11 September 2005 (the First Information Report). However, the third Tribunal said that this did not explain why the medical report could indicate that the examination of his injuries would be reported as having occurred on 3 September 2005. The fact that the document may have been produced after the First Information Report did not, according to the third Tribunal, explain why it would indicate that the injuries were observed eight days before that date. The appellant’s explanation was that it was a simple administrative error. However, in the context of other concerns about the documents presented and the appellant’s claims overall, the third Tribunal did not accept that this was a truthful explanation. The third Tribunal recorded once again that, in its view, the medical examination report ‘does not present a true document produced after claimed injuries to the [appellant] on 11 September 2005’ (at [173]).

Rejected news reports

51    The third Tribunal continued to find further difficulties in the documents purportedly verifying claims advanced by the appellant noting that one of the news reports of the claimed attack on the appellant exhibited a significant error. This suggested to the third Tribunal that the claims had been fabricated. The third Tribunal noted (at [174]) that the report of The Nation Newspaper, published on 16 September 2005, suggested that the attack on the appellant occurred on 13 September 2005, which was not consistent with his claims. The third Tribunal noted (at [174]) that the appellant had speculated this may be because The Nation reporter did not have daily contact with the police. Given the purported interest in the story in Pakistani media, the third Tribunal did not accept that such a fundamental error could be made when detailing the story.

52    The third Tribunal noted (at [174]) ‘this is the only published story which gives any timeline to the claimed attack, the other reports merely referring to brief facts … without referring to when events occurred’. The Tribunal said, again, ‘the fact that such a fundamental error was made, in the context of the overall assessment of the documentary evidence and the claims made’ led the third Tribunal to find that the reports which had had been published were not accurate accounts of events affecting the appellant in Pakistan.

Rejected First Information Report

53    The third Tribunal also rejected the accounts advanced personally by the appellant noting (at [175]) that while he had explained the difficulties with the information in the First Information Report as arising from a mistake in the interpretation that he provided, the third Tribunal did not believe the document genuinely reflected the appellant’s experiences. In the third Tribunal’s view, the consideration of the application shows that he had been ‘able to procure and provide obviously fraudulent documentation to support his claim’ (emphasis added).

54    The Tribunal noted (at [175]) that the First Information Report, given the conclusions about other significant documentation provided by the appellant, could not be relied upon.

‘No equivocation’ and no further inquiries

55    While it had been submitted that further inquiries in respect of material presented by the appellant should be undertaken, the third Tribunal did not believe that to do so was necessary or sensible. It considered (at [176]) that inquiries with government agencies in Pakistan with respect to documents which the third Tribunal believed were fraudulent could, on its own, create problems for the appellant in Pakistan. In respect of the PUJ letter, the further checks which were urged by the appellant’s advisor and undertaken by the third Tribunal only confirmed that the document was fraudulent.

56    The third Tribunal noted (at [176]) that it had ‘no equivocation in reaching its conclusions in respect of this application and the material which is available. For these reasons, the Tribunal does not believe there is any point in undertaking further inquiries’.

False claims about mobile telephone threats

57    The Tribunal (at [177]) continued its disparaging observations of the appellant. It also disbelieved his account because he had ‘over time displayed a propensity to make assertions about his actions and motivations which, when subjected to scrutiny, were not sustained’. He claimed in a declaration made on 29 May 2006 in respect of the impact of the threats made to him by telephone that his advisor ‘said not to worry about it but to ensure I did not receive further calls he told me to change my mobile number. I cancelled my mobile altogether’.

58    The third Tribunal noted (at [177]), however, that his mobile telephone number was included by the appellant on two applications for visas to travel to Australia after the appellant claimed to have cancelled this mobile altogether. The appellant’s evidence to the third Tribunal was the he did not cancel the mobile altogether but, rather, he simply took the SIM card from the telephone and kept it. He explained that he used the mobile number on applications because it was the mobile telephone number effectively registered to him and thought he should include this information for the sake of completeness.

59    The third Tribunal, once again, concluded that the appellant’s explanation for the continued reference to his mobile telephone number after his claims of having cancelled it altogether was simply an example of his ‘saying anything that he thinks would explain an apparent inconsistency and assist his application’ (at [178]).

60    The inclusion of the mobile telephone number in his later visa application in Pakistan was clearly for the purpose of contact. The third Tribunal reached the view (at [178]) that the reason why the appellant continued to include reference to his mobile telephone number in applications made months after the alleged threats to him was because he continued to use it and had not cancelled it as claimed. Once again, in rejecting the credit of the appellant on this topic, the third Tribunal observed ‘[i]n the Tribunal’s view, this is because the claimed threats were not in fact made’ (at [178]).

Deliberate obfuscation

61    The third Tribunal also recorded (at [179]) that it did not believe the appellant’s claims about threats made against him and attacks made on him as his claims about how those who would seek to harm him became aware of his role, had been unclear over time. Consideration of the progress of the matter clearly indicated that in the first Tribunal hearing, the appellant was being deliberately unclear about how his name came to be known by those who would seek to harm him. The third Tribunal stated that the Federal Magistrates Court found that he had never, in his evidence to the Tribunal, indicated that his name was given to those seeking to harm him. That conclusion could be contrasted, the third Tribunal said, with the evidence now advanced which was that the appellant knew from days after the threat to Mr Badar Munir Chaowdhury, that his name had been given to those seeking to harm him. It was difficult to see then why his evidence at the first Tribunal hearing could not have been more clearly understood (at [179]).

62    The third Tribunal noted (at [180]) that it needed to take great care in considering the issue, particularly as the interpreting in the first Tribunal hearing was found by the first Federal Magistrates Court decision to be deficient. The fact, however, that the appellant could not give clear evidence on this point in the first Tribunal hearing was acknowledged in the most recent submissions of his advisor. The submissions indicated that the appellant was not clear in answering questions about how his name became known because he became confused and gave the incorrect answer in that first Tribunal hearing. The third Tribunal noted (at [180]) that that answer could be contrasted with the latter apparent clarity of his claim.

Rejected psychological evidence on falsehoods

63    The third Tribunal also referred to (at [181]) a range of reports going to his psychological state over the time that the appellant had submitted. On considering that material, the third Tribunal did not believe that it supported a conclusion that his psychology was so affected that he was unable to clearly recall or give evidence about the central element of his claimed past experiences.

The anonymous letter

64    It is central to the disposition of this appeal to record those aspects of the third Tribunal decision (discussed at [21] to [40] above) before coming to the aspect of the decision which is squarely under challenge in this appeal.

65    On the use of the anonymous letter, the third Tribunal said (at [182] to [187]):

182.    In this context also the Tribunal has considered the content of the allegation about the [appellant’s] conduct which was communicated on an anonymous basis to it. This allegation was that the [appellant’s] claims of his past experiences were fabricated and that he did not have the experiences claimed. As was submitted, such allegations must be treated with extreme caution by the Tribunal as the information in them is untested and the author’s motivations completely unknown to the Tribunal and possibly the [appellant].

183.    The [appellant] has claimed that this allegation has been made by a former friend, a person to whom he made a sexual advance and who wishes him ill. In the Tribunal’s view, considering the evidence overall regarding the [appellant’s] claims in respect of feared harm from members of the madrassa, the allegation is believable and supports the Tribunal’s assessment of the reasons above, points to an applicant who has a desire to live in Australia and who has fabricated a claim to need Australia’s protection. The fact that a fairly detailed allegation is received to this very effect is also supportive of the ultimate conclusion. That the allegation was made by a person who wishes the [appellant] ill is undoubted, but the fact that the allegation is able to detail the nature of the fabrication which is supported by an analysis of the evidence provided by the [appellant] points to that allegation being true.

184.    Furthermore, the Tribunal believes that the newspaper reports which have been provided to support the claim support the substance of the allegation which has been made. The reports which have been provided all appeared in the media from 15 September 2005, with the latest reported in the Daily Inquilab on 19 September 2005. The events having occurred on 11 September 2005, there does seem to the Tribunal to be delay in the reporting of events and in the case of the report in The Nation the only report to mention the timing of the attack, the day of the attack is incorrect and somewhat closer to the publication date. The timing and gradual emergence of reports over the week after the claimed attack tends, in the Tribunal’s view, to support a conclusion that the [appellant] was involved in having these reports reproduced to the media. While he had claimed limited ability to do so given his position in the media, and the possibility that the papers reporting the matter did not have daily contact with the police, in the Tribunal’s view the error in the report of The Nation, the substance of the allegation made and the assessment overall of the credibility of this [appellant] supports the view that the media reports which have been provided did not report truthful events.

185.    Against these matters, the Tribunal had considered the fact that there is evidence presented by the [appellant] which is supportive of his claim. There have been persons prepared to give oral and written evidence on what they claim to have known about the [appellant’s] past experiences. These include former workmates of the [appellant] and other personal acquaintances. The nature of that evidence, however, is not sufficient to overcome the Tribunal’s concerns regarding the evidence as a whole. While the Tribunal accepts that some people may have been told or read about the claimed attack on the [appellant], the Tribunal does not believe the evidence that the [appellant’s] name was given to persons from the madrassa nor that any actual attack was witnessed. In the case of Mr Butt, who claims to have witnessed the attack, he is a close friend of the [appellant] who has assisted with obtaining material to support the claim. In the case of the evidence of Mr Badar Munir Chaowdhury, while it is supportive of the [appellant’s] claims regarding his name having been given to members of the madrassa, the Tribunal believes that this element of the claim has in fact been fabricated over time. The [appellant], early in the proceedings was not able to give clear and consistent evidence on this point and the Tribunal believes that this claim has been fabricated at a later point to assist the [appellant].

186.    The [appellant] has also claimed an attack on his brother during 2007 and the death of his mother during 2007 is both attributable the events which he claims affected him in Pakistan. Given the findings above regarding the documentary evidence supportive of this claim, the Tribunal does not believe that the reports which have been provided, give genuine corroboration in this matter. While the [appellant’s] mother may have been worried about the [appellant], and indeed told Mr Ghaznavi of attacks on the [appellant] and her other son, the Tribunal does not believe this evidence overcomes its concerns about the nature of the [appellant’s] claims as discussed above. The willingness of the [appellant] to procure and tender an obviously fraudulent document of significance and for the authenticity of the document to be constantly defended until it was disowned by the author, indicates that the [appellant] is capable of and willing to obtain and present fraudulent evidence to support his claim. For this reasons (sic) the Tribunal does not accept the evidence of the impact on the [appellant’s] family of the claimed attack on him.

187.    Considering the evidence overall, the Tribunal is lead (sic) to a conclusion that having formed a desire to live in Australia the [appellant] travelled here in 2006 having fabricated the basis of the claim of having been of interest to the [JMI] group in Pakistan. He arranged for the creation of fabricated documentation to support this claim and indeed personal acquaintances to assist those claims with evidence that was not accurate. While he may have informed people in Pakistan that he was of interest to those associated with the madrassa before his most recent departure from the country, the Tribunal does not believe this to be the case.

(emphasis added)

BEFORE THE FEDERAL MAGISTRATE

66    The third Federal Magistrates Court decision dealt with a number of grounds of appeal but it is only the claimed illogical or irrational use of the anonymous letter by the third Tribunal which is now the subject of appeal in this Court. In relation to that issue his Honour noted (at [88]) that whoever wrote the letter knew much detailed information about the appellant and about his claims to fear persecutory harm. In considering the argument, his Honour noted (at [91]) that the illogicality contended for was that while the third Tribunal accepted the anonymous allegation needed to be treated with great care, in spite of that, the third Tribunal made the finding that the allegation in the letter was true because the allegation was detailed. His Honour noted (at [96]) argument directed, as it was in this appeal, to SZMDS and the test as to whether there is probative evidence which can give rise to different processes of reasoning (on which minds may differ), see particularly Heydon, Crennan and Bell JJ.

67    It was contended before his Honour (and in this Court) that there was no probative evidence at all to support the truth of what was alleged in the anonymous letter and, therefore, the third Tribunal’s reasoning was illogical. The appellant argued that the third Tribunal’s findings in relation to the anonymous letter was ‘integral and not severable’ to the rejection of the credibility of the appellant’s claims.

68    The Federal Magistrate expressly rejected that argument (at [99]) saying ‘[o]n any plain, let alone fair reading, the Tribunal independently of the letter, reached its view that the [appellant] had, over time, fabricated his claims to fear harm from the “terrorists” associated with the madrassa’. The third Tribunal had made clear (at [183]) that the allegations in the anonymous letter supported the third Tribunal’s assessment of the appellant’s claims, such assessment having been derived from a number of other sources and matters (at [169] to [181]) of the third Tribunal’s decision as summarised above.

69    Before his Honour, the appellant seized on the third Tribunal’s use of the word ‘overall’ (in [187]) of the third Tribunal’s decision to argue that it had necessarily relied upon the content of the anonymous letter.

70    His Honour rejected (at [101]) such a meticulous analysis as falling foul of the rule in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 in which it is made clear the Tribunal decision should not be read with an eye finely attuned to error. His Honour said (at [102]):

Any plain holistic reading reveals that the Tribunal plainly found adversely to the [appellant] based on a range of other factors. The matter of the letter was seen as being supportive of its conclusion. The letter was not a critical part of the Tribunal’s reasoning. Nor can it be said that the Tribunal’s central analysis was contaminated by, or dependent on, its conclusion about the letter.

71    His Honour concluded (at [103]) that even if some legal error did exist in its dealings with the anonymous letter, it was not such as to amount to jurisdictional error given that the basis of the third Tribunal’s conclusions remained untouched by any such error (at [103]). His Honour relied on VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965. He noted (at [104]) that the anonymous letter was but one piece of evidence before the third Tribunal with the weight to be accorded to it being a matter for the third Tribunal: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164.

GROUNDS OF APPEAL

72    The grounds of appeal were addressed together. They directly challenge reliance upon the anonymous letter. The grounds are in these terms:

1.    The Federal Magistrate erred in finding that the decision of the [Tribunal] dated 13 July 2010 was not void on the ground of jurisdictional error, namely, in irrationality accepting as believable an anonymous letter sent to the [Tribunal] alleging that the appellant had falsified his claim to refugee status.

2.    His Honour should have found that there was no probative evidence upon which the Tribunal could have concluded that the allegations in the anonymous letter were believable, and that the irrational acceptance of the anonymous letter constituted a jurisdictional error vitiating that Tribunal’s decision.

ARGUMENT ADVANCED BY THE APPELLANT

73    The appellant focussed on what he described as the intertwined nature of the content of the anonymous letter with the analysis of the newspaper reports.

74    Shortly put, the appellant’s main point is that there was no basis on which the third Tribunal could have accepted the anonymous letter as ‘believable’ and to have acted upon it. The reasoning process before the third Tribunal meant that the impressions it formed were ‘necessarily formed’ in light of the anonymous letter itself which, given the gravity of the allegations contained within it, must have seriously affected the third Tribunal’s approach. The appellant submitted that the third Tribunal’s reasoning was therefore illogical and its findings as a whole vitiated.

75    The appellant on appeal to this Court relied heavily upon the reasoning of the High Court in SZMDS. The appellant suggested that in that decision the High Court ‘split three ways’. Crennan and Bell JJ upheld the appeal, as did Heydon J but ‘critically for different reasons’. I will return to consider this analysis. Acting Chief Justice Gummow and Justice Kiefel dissented. It was argued that the Full Federal Court decisions of Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 (at 64]) per Buchanan J (see also Tisdall v Webber (2011) 193 FCR 260 (at [126]-[127]) per Buchanan J; SZMWQ v Minister for Immigration and Citizenship (2010) 187 FCR 109 (at [124] per Flick J (cf at [52]) per Rares J)) and SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109 should not be followed to the extent they have cited SZMDS as authority on the ‘irrationality’ ground of review because in doing so they relied only on the reasons of Crennan and Bell JJ.

76    The appellant goes on to explain why he contends that Heydon J’s judgment was ‘critically for different reasons’ from the joint judgment of Crennan and Bell JJ.

77    First, it is necessary to examine the relevant content of the judgment. Dealing first with the reasons of Heydon J in SZMDS, his Honour said (at [78] and [86]) (footnotes omitted):

78    The issue was one on which minds might differ. The Federal Court evidently operated on one assumption or conclusion about that issue. The Tribunal operated on another. The difference was one of degree, impression and empirical judgment. It did not stem from an error in logic by the Tribunal member. The difference could not be said to reveal an absence of any basis whatsoever for her conclusion.

…

86    The difference between the Federal Court and the Tribunal may be put thus. The Federal Court thought that the first respondent's explanation for not seeking asylum in the United Kingdom was "perfectly plausible". There are pejorative meanings of the word "plausible", but they are not the meanings which the Federal Court was conveying. The Federal Court was saying that the explanation was "capable of being believed" or "apparently believable". The Tribunal, however, did not believe it. Something can be capable of being believed without actually being believed. For the Tribunal member to withhold belief from something which is "perfectly plausible" but which she did not find to have been satisfactorily explained and which she found not to be probable is not illogical.

(emphasis added)

78    In the passage frequently cited from the joint judgment of Crennan and Bell JJ (at [124]-[131]), their Honours note that if rationality is a separate freestanding common law standard for good administrative decision-making it seems at least related to the implied standard of reasonableness following the articulation by Lord Greene MR of what has come to be known as ‘Wednesbury unreasonableness’ (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). Their Honours noted that it appears closely allied also to the requirement in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 that extraneous matters should not be taken into consideration but relevant considerations must be. They continued (at [129]-[131]):

129    It can be acknowledged that the contemporary invocation of "illogicality" or "irrationality" as a basis for judicial review may well have first emerged in Australia, as intimated by Gleeson CJ in Applicant S20, as a reaction to the ouster of the review ground of "Wednesbury unreasonableness" in immigration law. Equally it may be that the development of "irrationality" as a basis for judicial review in England grew out of dissatisfaction with the inherent circularity of the Wednesbury test and the implicit suggestion in Wednesbury that there were degrees or grades of unreasonableness. Be that as it may, accepting that an allegation of "illogicality" or "irrationality" must mean something other than emphatic disagreement as explained above by reference to Eshetu and Applicant S20, and also accepting that a demonstration of bona fides will not save an illogical or irrational decision or finding on a jurisdictional fact as stated in SGLB, how do "illogicality" and "irrationality" fit with the clearly related body of law concerned with error, particularly jurisdictional error, in respect of reasoning which is "clearly unjust", "arbitrary", "capricious" or "Wednesbury unreasonable"?

130    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.

131    What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

(emphasis added)

79    The appellant contends that to the extent Crennan and Bell JJ referred to Wednesbury unreasonableness, those references should be treated as being obiter as the description of illogicality based jurisdictional error in S20 is fundamentally different from Wednesbury unreasonableness. The appellant argues and it is now well accepted that the test for irrationality, as was adopted by the majority in SZMDS, is that which was laid down in S20.

80    The appellant argues that there was no probative basis on which the third Tribunal could have accepted and acted upon the very specific allegation contained in the anonymous letter to the effect that the appellant had ‘planted’ the newspaper articles in the Pakistani media. Being an allegation of fraud, it required the most cogent evidence. However, what the third Tribunal relied upon, according to the appellant, in addition to the anonymous letter, was the fact that one document, the PUJ letter, was concocted. It is argued that this fact provides no basis to infer that other documents which genuinely appeared in the Pakistani print media were also placed by the appellant’s agency. Equally, the fact that one of the newspaper dates contained an erroneous date, which happened to be the date on which the First Information Report was created, was insufficient a basis on which to draw a conclusion that the appellant planted all those reports in the Pakistani media.

CONSIDERATION

The approach to the appellant’s arguments

81    It will be necessary to say something first about what may constitute reviewable error for the purposes of the analysis of the appellant’s arguments. Secondly, the analysis of the appellant’s argument proceeds on the assumption, in the first instance, that reliance upon the anonymous letter was illogical or irrational and thus a reviewable error. Thirdly, consideration is given to the question of whether reliance by the third Tribunal on the anonymous letter would have been or was relevantly objectionable.

General considerations

82    It is well established that not all errors of law made by a decision-maker will be jurisdictional errors. A court reviewing for jurisdictional error must not stray in to the area of merits review rather than jurisdictional review. Nevertheless, there are various categories of error which have been held to constitute jurisdictional error and illogicality, as argued in this appeal, is one of those areas. The meaning of illogicality in SZMDS has been discussed in [54] above.

83    The appellant is correct in observing that the remarks made by Crennan and Bell JJ in SZMDS (at [124]) concerning Wednesbury unreasonableness are part of their Honours’ analysis of the extent to which the process of fact finding might be regarded as unreasonable. As the appellant also notes, it has been made clear by the High Court that Wednesbury unreasonableness applies only to determining the validity of discretionary decisions rather than the fact finding leading to those decisions. The fact finding itself can only be impugned where the factual determination is ‘illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds’. This is the test developed from S20 (at [52]) per McHugh and Gummow JJ and with whom Callinan J agreed.

84    In SZMDS, none of the three majority judges discerned illogicality in the reasoning of the Tribunal. The test which emerged as to the circumstances in which illogicality would give rise to jurisdictional error emphasises that a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion (Crennan and Bell JJ at [131]). As stated subsequently (at [135]):

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 maker 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 a 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.

85    What was said by Heydon J at [78], cited above (at [54]), 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.

Assuming reliance on the anonymous letter was reviewable error

86    The arguments advanced by the appellant with reference to the anonymous letter, in my view, pay insufficient regard to other strong conclusions already reached in relation to the appellant’s conduct and his credibility as expressed by the third Tribunal. The Federal Magistrate, in noting this feature of the third Tribunal’s analysis, was correct.

87    From the summary appearing above, it is evident that the third Tribunal, independently of the anonymous letter, concluded that the corroborative documentary material was obviously and deliberately fabricated.

88    That documentation included the PUJ letter, which was expressly disclaimed by the purported author and referred to a meeting which had never occurred. Equally dismissed by the third Tribunal was the medical examination report which related to an examination of the appellant on 3 September 2005 when, in fact, on the appellant’s claims, he was not attacked until eight days later. Thirdly, the newspaper report suggesting that the ‘attack’ took place on 13 September 2005 was also found by the third Tribunal to have been subject of fraudulent preparation.

89    Before considering the anonymous letter, the third Tribunal set out its reasoning as to why it considered the documentation to be fraudulent in the passages recounted above. In relation to the PUJ letter, the third Tribunal concluded (at [186]), as it was entirely open for it to do so, that:

[t]he willingness of the appellant to procure and tender an obviously fraudulent document of significance and for the authenticity of the document to be constantly defended until it was disowned by the author, indicates that the appellant is capable of and willing to obtain and present fraudulent evidence to support his claim.

90    The third Tribunal reached other conclusions about credibility which were, independently of the anonymous letter, seriously adverse to the appellant. In relation to the appellant’s own evidence in support of his claims, the third Tribunal found that he had a propensity to make assertions about his actions and motivations which when subject to scrutiny were not sustained. It found that the appellant had been deliberately unclear about how his name came to be known by those who would seek to harm him. The view expressed by the third Tribunal was that he was unclear because he was making up the claims he had presented (see [181]).

91    This was not just an instance in which a tribunal could have reached the same conclusion without reliance on the anonymous letter but a case where it had so concluded.

92    It was only then after those seriously adverse conclusions were reached that the third Tribunal reasoned that the allegations contained in the anonymous letter were believable ‘considering the evidence overall’. In the key paragraph (at [183]), the third Tribunal stated that in its view:

the available evidence independently, and for the reasons given above, points to an applicant who had a desire to live in Australia and who has fabricated a claim to need Australia’s protection.

93    In this particular decision, the order in which the evidentiary events and their shortcomings were analysed by the third Tribunal made it clear that the adverse conclusions about the appellant was sufficient for the third Tribunal to reject his account, and to conclude that he was not entitled to the protection visa were expressed before the third Tribunal noted the content of the anonymous letter.

94    The Federal Magistrate was correct in concluding that the anonymous letter was relied upon but simply added satisfaction to the view already reached by the third Tribunal. It confirmed findings already made. The substance of the anonymous letter was not integral to the subsequent reasoning of the third Tribunal that the newspaper reports did not truthfully recount events. That conclusion had already been determined by the matters referred to by the third Tribunal prior to consideration of the anonymous letter.

Was reliance on the anonymous letter reviewable?

95    Accepting there was some reliance on the anonymous letter and assuming for present discussion that there should not have been, it has long been recognised (as discussed by Siopis J in Kabir v Minister for Immigration and Citizenship (2010) 118 ALD 513) judicial review relief may be withheld if granting it would be futile to the result. Special leave to appeal to the High Court was refused in Kabir v Minister for Immigration and Citizenship [2011] HCASL 24.

96    Ultimately it comes down to a question of whether it can be said that the grant of relief could not possibly make a difference to the Tribunal’s eventual deliberations. This was the test enunciated by the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141 and see also Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 and NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470. Nevertheless, it is clear from such cases and, in particular Aala, the grant of relief under constitutional writs is a matter for discretion, much depending on the facts and circumstances of each case. The majority in Aala held, as Gleeson CJ noted (in [4]-[5]) that it could not be concluded that the denial of procedural fairness made no difference to the outcome of the proceeding. All members of the High Court, however, adopted the same or similar test. All members recognised that not every breach of the rules of natural justice would affect the making of a decision. As McHugh J (who was in dissent in the actual result) observed (at [104]), a breach of the rules of natural justice would not automatically invalidate a decision adverse to a party affected by the breach. His Honour noted that in Stead the High Court had already observed that ‘not every departure from the rules of natural justice of a trial will entitle the aggrieved party to a new trial’. However, his Honour, as with the majority, emphasised that a court should refuse relief only when it is confident that the breach could not have affected the outcome.

97    Similarly, in VBAP of 2002, North J said (at [32]-[33]):

32    It was argued on behalf of the appellant that if a breach of s 424A of the Act in this respect had been shown, then as a result of the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 (SAAP), the decision of the Tribunal must be set aside. I cannot accept this submission.

33    As referred to earlier in these reasons, there were four independent bases for the decision of the Tribunal in this application. There was no challenge to the second basis of the Tribunal’s decision and I have rejected the challenges to two of the other bases. SAAP does not stand for the proposition that if there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls. SAAP was itself a case in which the only ground relied upon was a ground on which jurisdictional error was established. There was therefore no other basis upon which the decision in that case could be upheld. In the present case there are three other bases upon which the decision may be supported.

98    Special leave to appeal to the High Court was refused

99    In VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1, Gray J noted (at [23]):

23    There have been numerous cases in which decisions of tribunals under the Migration Act have been upheld, notwithstanding error apparent in the tribunals’ reasons, because those reasons also disclose that there is another basis on which the tribunal concerned found against the person applying for a visa. Recent examples include NAIF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 114 at [17], VBAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 at [33] and NAUW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1086 at [24].

100    Similarly and dealing with the same error in VCAD, Sundberg and North JJ noted (at [45]) that the relevant statement by the Tribunal, although erroneous, was merely an unnecessary fall-back position as demonstrated by the words in parentheses referring to the amnesty. As such, it did not demonstrate that the error identified by the primary judge may have affected the Tribunal’s decision.

101    In SZKMX v Minister for Immigration and Citizenship [2008] FCA 856 (at [37]) Reeves J cited Greenwood J in SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824, where his Honour reviewed many of the authorities on the distinction between an error of fact or law and jurisdictional error and concluded as follows, at [32]:

A determination of the Tribunal as to a state of satisfaction or otherwise, of the relevant criteria or criterion in question, that is based upon a finding of fact or inferences drawn from facts, not based on logical or rational grounds, will give rise to an error of jurisdiction if there is no evidence to support the finding or no proper basis for drawing the inference; or, if there be some evidence, although inadequate, reliance by the Tribunal upon that inadequate evidence gives rise to an inference that the Tribunal has misconceived the test or is not, in reality, satisfied of the requisite matters, as a result of which there has been only a purported, rather than a real, exercise of the power conferred upon the Tribunal.

102    The very clearly expressed conclusions of the third Tribunal were, after exhaustive analysis, unquestionably adverse to the credibility of the appellant. Even if subsequent reliance to any extent at all upon the anonymous letter could be said to be illogical or irrational (as well it might), it is quite clear from the manner in which the third Tribunal framed its reasons that the adverse conclusion against the appellant had already been reached, quite independently of any comfort which may have been drawn by reference to the anonymous letter. On that basis, the conclusion of the Federal Magistrate was entirely correct.

Was reliance on the anonymous letter illogical?

103    That is sufficient to dispose of the appeal but it is desirable also to express a view in relation to the contention for the Minister that the anonymous letter could be given some weight and, indeed, hypothetically speaking (not this appeal) could be given weight even if it were the only evidence available.

104    The Minister contends that the appellant’s true complaint is that the third Tribunal gave the anonymous letter any weight at all. The Minister argues that such a complaint is not open. The scheme of the Act makes clear that the making of findings of fact is squarely within the power and duty of the Tribunal under s 414 to ‘review’ an RRT-reviewable decision’ where an application is made under s 412. The Tribunal is required, ultimately, to determine, under s 415, on the material before it whether or not it is ‘satisfied’ in accordance with s 65 that an applicant meets criteria for the grant of a protection visa as set out in s 36 of the Act.

105    In particular, the Minister relies on the decision of a Full Court of this Court in Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 (at [23]) where the Court said:

In substance, the appellant's complaint is that the [Tribunal] should not have taken into account untested assertions made by an informant, even if the RRT referred to the dob-in letter only in relation to one particular factual claim and, even then, only to [support a conclusion] independently reached. But [that] is to attack the [Tribunal’s] fact finding, a course which is not permissible under Pt 8 of the Migration Act.

106    It is doubtful whether Win is directly applicable to this case. The issue in Win was whether an anonymous letter was ‘information’ (which should have been disclosed). That argument is not open or advanced in the present appeal. Moreover, Win was decided before the decision in S20 and did not require consideration of the content of s 65 of the Act. To the extent that Win observes that an attack on the Tribunal’s fact finding is not permissible, that observation differs from the question arising on the appellant’s arguments.

107    It would be a matter of concern, if administrative decision-makers were prepared to give credence to entirely untested anonymous assertions made by persons who the decision-maker accepts as having a vested interest in damaging the prospects of an applicant receiving a favourable decision.

108    While it is unnecessary to consider the Minister’s contention in order to resolve the appeal, if the anonymous letter were the only material before the decision-maker in a hypothetical case or reliance was placed on that document in order to lead to other conclusions of jurisdictional fact, doing so would involve a process which might well be tainted with illogical or irrational reasoning. Had the anonymous letter been the only evidence relied upon, this appeal might have been disposed of quite differently.

109    Even in this case, it seems quite unnecessary to have relied upon the content of the anonymous letter. The third Tribunal, as I construe it, in a sense not finally attuned to finding error, while reaching sufficiently adverse conclusions to reject the appellant’s claims, nevertheless made the point that some weight could be given to the anonymous letter as being supportive of the conclusion that it had reached. The Minister contends that the weight it gave the anonymous letter was indicated by the final sentence in [183] of its decision. It took into account the fact that the anonymous author had particular information which was only consistent with the likelihood of the content of the letter being correct. I do not consider that this would be sufficient to make sole reliance on such a letter rational. The nature of the responses to the content of such a letter may in some cases change the position again. However, in this instance, while the response was noted, it was not suggested that the response was relied upon in any significant way in determining the credit of the appellant.

110    Given the third Tribunal was able to reach its conclusion quite independently of the content of the anonymous letter, it should have done so and disregarded that letter altogether. Nevertheless, as the conclusions which it reached were reached independently of that document, those conclusions are unassailable.

CONCLUSION

111    The Federal Magistrate correctly held that no jurisdictional error was established. I would therefore dismiss the appeal with costs.

Associate:

Dated:    27 April 2012

REASONS FOR JUDGMENT

Reeves J:

112    I have had the opportunity to read the draft reasons of Rares J and McKerracher J. With one exception, I am in agreement with the reasoning of McKerracher J.

113    In particular, I agree with his Honour’s view that the Tribunal identified a number of matters, quite independently of the anonymous letter, upon which it stated it was satisfied that the appellant’s account of his persecution in Pakistan was not credible, as a consequence of which it was not satisfied of the existence of the relevant statutory criteria under s 36(2) of the Act. Those matters included the conclusions the Tribunal reached on the evidence before it that: the PUJ letter had been fabricated (see at [23]–[25] above); the medical report produced by the appellant was false (see at [26]–[27] above); the media report in The Nation newspaper as produced by the appellant was inaccurate (see at [28]–[29] above); the appellant was not able to satisfactorily explain the mistake in the first information report (see at [30]–[31] above); and the appellant had made false claims about receiving threats over his mobile telephone (see at [34]–[36] above). While minds might differ about the conclusions the Tribunal reached about some, or all, of these matters, this was not a situation where: only one conclusion was open on the evidence, and the Tribunal did not come to that conclusion; or the decision to which the Tribunal came was simply not open on the evidence; or there was no logical connection between the evidence and the inferences or conclusions drawn on these matters: see SZMDS at [135] per Crennan and Bell JJ.

114    I also agree with McKerracher J in his conclusion that, even if the Tribunal placed some reliance on the anonymous letter and thereby committed a reviewable error, that error would not, in the circumstances, be sufficient to justify granting relief to the appellant (see at [72]–[79] above). To the authorities identified by McKerracher J on this aspect, I would add Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [53] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ and at [114] per Heydon J.

115    However, I am forced to differ with McKerracher J (and Rares J for that matter) on the question whether the Tribunal could have relied on the anonymous letter to determine whether or not it was satisfied that the appellant had met the apposite statutory criteria, even if that letter were the only material before the Tribunal. Since this is a purely hypothetical question in this appeal, I would prefer not to express any concluded view on the question – even the very tentative one McKerracher J has expressed (see at [85]–[87] above).

116    For these reasons, I agree with the orders proposed by McKerracher J.

Associate:

Dated:    27 April 2012