FEDERAL COURT OF AUSTRALIA

Soe v Minister for Immigration & Multicultural Affairs [2001] FCA 1575

MIGRATION – construction of RRT’s reasons – whether RRT’s reasons could be characterised as illogical or a non sequitur – whether the RRT had failed to ask the correct question.

Migration Act 1958 (Cth), s 430(1).

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited

Minister for Immigration and Multicultural Affairs v Perera [2001] FCA 1212, cited

NWE NI SOE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 160 of 2001

SACKVILLE, KIEFEL & HELY JJ

PERTH

5 NOVEMBER 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     This is an appeal from a decision of a Judge of this Court dismissing an application for review of a decision made by the Refugee Review Tribunal (“the Tribunal”) on 1 September 2000.  The Tribunal had affirmed the decision of a delegate of the respondent (“the Minister”) not to grant a protection visa to the appellant. 

2                     The primary Judge, in a brief judgment, rejected the two arguments advanced on behalf of the present appellant.  The first argument was that the Tribunal had breached s 430(1) of the Migration Act 1958 (Cth) (“the Migration Act”) by failing to make a finding of fact on a particular claim that had been advanced by the appellant.  The primary Judge rejected this argument, on the ground that the particular claim did not raise a "material" question of fact for the purposes of s 430(1)(c) of the Migration Act. 

3                     No challenge is made to this holding, presumably by reason of the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. The High Court (at 20) held that s 430(1)(c) of the Migration Act merely requires the Tribunal to set out its findings on questions of fact that it regards as material.  It does not require the Tribunal to set out findings on questions of fact the Court considers were material to the applicant's case.

4                     The second argument before the primary Judge was that the Tribunal's decision was not authorised by the Migration Act because it was founded on illogical reasoning.  His Honour characterised the submission as one that invited the Court to reconsider the merits of the case.  He also held that even if the Tribunal had been illogical in its reasoning, it "had a wealth of information before it on which it could conclude that the applicant did not possess a political profile on a level that was likely to attract the attention of the authorities". 

5                     The notice of appeal specifies four grounds.  The first three, however, were abandoned by the appellant's written submissions.  Ground 4 focuses upon a finding of fact made by the Tribunal which is said to be illogical or a non sequitur, or otherwise to expose reviewable error on the Tribunal's part.  Mr Walker, who appeared for the appellant, said that ground 4 was intended to re‑agitate one of the arguments put to the primary Judge; namely, that the illogicality of the Tribunal's reasons indicated that it had failed to address the real question before it and had failed to carry out its functions under the Migration Act.

6                     The finding of fact or conclusion which is the subject of challenge emerges from the following passages in the Tribunal's reasons for decision:

“The applicant's evidence was that the major period of her political activism was from 1996 to 1999.  She had claimed that she was very involved in student political activity.  The Tribunal questioned her about her role and is not satisfied that it was at the level she has claimed.

While it is important not to set too demanding a test of an asylum seeker's political knowledge, she has claimed to have been associated with the NLD [National League for Democracy] and with the organised student movement, particularly that based at the Rangoon Institute of Technology.  The Tribunal did not find her answers measured up to this claim.  She could not name the elected NLD member for her district.  She could not describe how the student movement was organised.  She gave only general answers about political activities, that poems were composed and pamphlets distributed.”

7                     The Tribunal then considered some independent country information that focused on the position of the NLD and concluded as follows:

“That is, the NLD was active.  It is not an underground movement in the sense of being a secret one.  Its members are arrested and threatened precisely because they openly oppose the government.  This is one of the factors which leads the Tribunal to be dissatisfied with the applicant's account of her political participation.  It is reasonable to expect that a Burmese who is politically active is also politically aware.”

8                     The appellant attributes to the Tribunal a process of reasoning which was founded on an assumption that a person who is a member of an underground or secret political movement will be less politically aware - that is, will have less knowledge of the activities conducted by the movement - than will a member of an openly active political movement.  That process of reasoning is then said to be illogical or to involve a non sequitur.  According to Mr Walker, if anything the exigencies of working in an underground organisation will require a more intimate knowledge of the organisation than participation in an open political party or movement.

9                     In our view, the appellant has not fairly characterised the process of reasoning which was adopted by the Tribunal.  The Tribunal was entitled to contrast the appellant's apparent lack of knowledge of the NLD, of which she claimed to be an active member, with the relatively public nature of the NLD's activities in Burma.  The Tribunal found that the appellant lacked the knowledge of the NLD that might have been expected from a member who had been as actively involved as she claimed.  The Tribunal accepted that it was difficult to undertake political activities in Burma.  It also accepted, at least implicitly, that if the NLD was an underground or secret movement, that might have explained the appellant's apparent lack of knowledge.  The Tribunal considered, however, that the independent country information before it established that the NLD was not a movement of that character and thus provided no explanation for the appellant's lack of knowledge of the organisation and its activities.

10                  The reading of the Tribunal’s reasons put forward by Mr Walker cannot be characterised as completely untenable.  But in our view it is not the more natural interpretation of the reasons.  Moreover, it is well established that the reasons of the Tribunal are to be given a beneficial construction: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 271-272.  Although we do not think it necessary to invoke that principle in this case, it would support our view of the Tribunal’s reasoning process.

11                  It follows that we see nothing illogical in the Tribunal’s approach.  Nor does its reasoning involve a non sequitur.  The foundation for the appellant’s submissions is therefore wanting.

12                  We would add four comments.  First, even if the appellant’s reading of the Tribunal’s reasons were to be accepted, it is by no means clear that the reasoning would be characterised as illogical or as involving a non-sequitur.  The fact that another view might be taken about the significance of a political movement being secret rather than open does not demonstrate illogicality or that a particular conclusion cannot follow from the expressed reasoning.

13                  Secondly, the authorities of which Minister for Immigration and Multicultural Affairs v Perera [2001] FCA 1212 is the latest, establish that a factual mistake or want of logic in reasoning does not mean that there has been an error of law giving rise to a ground of review under the Migration Act: see at [24], per curiam.  It should be noted that Minister v Perera was decided after the High Court's handed down its decision in Minister v Yusuf.  

14                  Thirdly, on the assumption (contrary to our view) that the Tribunal’s reasoning in the present case was illogical, we do not think that would demonstrate that the Tribunal had asked the wrong question.  We are prepared to assume, without deciding, that illogicality of reasoning might, in a particular case, show that the Tribunal had failed to address the correct question.  But in this case the Tribunal was concerned to assess whether the appellant's fear of persecution for her actual or imputed political beliefs was well founded.  To this end, it had to address the appellant's claim that she had been actively involved in political activities on behalf of the NLD.  The Tribunal did address that question.  An error in the reasoning process of the kind relied upon by the appellant would not, in our view, demonstrate that the Tribunal failed to turn its mind to the correct questions posed by the appellant's claims.

15                  Fourthly, Mr Walker suggested that the alleged illogicality on the part of the Tribunal showed that it had taken an irrelevant consideration into account and thereby committed a jurisdictional error.  It follows from what we have said that the Tribunal did not take irrelevant considerations into account.  It was addressing a factual issue relevant to its assessment of the appellant's account of her involvement in political activities in Burma.  In any event, it is difficult to see how illogicality on one aspect of the Tribunal's reasoning on factual questions could demonstrate that it had taken irrelevant considerations into account so as to commit jurisdictional error. 

16                  For these reasons, in our view, the appeal should be dismissed, with costs.

Associate:

Dated:              7 November 2001