FEDERAL COURT OF AUSTRALIA

Applicants S276 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 330

MIGRATION – illogicality – no jurisdictional error where findings of fact are supported by probative material

Commonwealth of Australia Constitution Act s 75(v)

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 476

Federal Court Rules O 51A r 5(1)

High Court Rules O 55 rr 17 & 30

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to

Buck v Bavone (1976) 135 CLR 110 referred to

Cam Mui Chi v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 14 referred to

Hope v Bathurst City Council (1980) 144 CLR 1 referred to

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 referred to

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 applied

Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 190 ALR 402 referred to

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 referred to

NSW Associated Blue Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 referred to

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 referred to

Robinson v Shirley (1982) 149 CLR 132 applied

Vetter v Lake Macquarie City Council (2001) 202 CLR 439 referred to

APPLICANTS S276 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N336 of 2003

JACOBSON J

29 MARCH 2004

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicants pay the respondent’s costs in the proceedings.

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

REASONS FOR JUDGMENT

Introduction

1                     These proceedings were commenced in the High Court of Australia by an application for a draft order nisi filed on 21 August 2002.  The proceedings were remitted to the Federal Court by an order of Gaudron J made on 6 February 2003 before the question of whether an order nisi ought to be granted was considered.   However, in view of the history of the matter which I will set out below, the Minister asks me to proceed upon the basis that this is a final hearing and that my orders are final rather than interlocutory.  Counsel for the applicants ask me to take the same course and I propose to do so.

2                     The applicants wish to amend the application so as to treat it as an application for review under s 39B of the Judiciary Act 1903 (Cth) rather than a claim brought within the original jurisdiction of the High Court for constitutional writs under s 75(v) of the Constitution.  I will deal below with the question of whether I have power to accede to this request.  It does not affect my consideration of the issues put before me at a substantive level.

3                     The proceedings have a long history.  The application raises three questions.  The first question is whether a decision of the Refugee Review Tribunal (“the RRT”) handed down on 13 June 2001 was “illogical” in the sense referred to by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [145] (“Eshetu”).

4                     The second question is whether the RRT made an error of law by failing to consider a possible conclusion which was open to it on the facts, namely, that the applicants had a well-founded fear of persecution.

5                     The third question is whether the “illogicality” or “error of law” grounds are barred by res judicata, issue estoppel or Anshun estoppel or whether the agitation of those grounds constitutes an abuse of process.  Thus, the third question raises four related questions which all arise out of earlier proceedings.  Principally, they arise from a decision of Sackville J given on 29 October 2001 in Goncharov v Minister for Immigration and Multicultural Affairs [2001] FCA 1524 in which his Honour dismissed an application brought by the present applicants for review of the decision of the RRT.

6                     Two further decisions are relevant to questions of res judicata, issue estoppel, Anshun estoppel and abuse of process.  The first is a decision of Emmett J dated 30 May 2002 in NAGA of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 724 in which his Honour dismissed an application for an extension of time to appeal from the orders of Sackville J.  The second is a decision of Tamberlin J dated 23 July 2002 in NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944 in which his Honour dismissed a further application for an extension of time to appeal from Sackville J’s orders.

7                     For reasons stated below, I do not propose to deal with the third question.  Nevertheless, the decisions of Sackville J, Emmett J and Tamberlin J are relevant to a consideration of the illogicality and error of law grounds.   I will therefore refer to the decisions later in my judgment.

The Background Facts

8                     The applicants are a husband, his wife and daughter.  They are citizens of the Russian Federation.  They arrived in Australia on 14 September 1999.  They lodged applications for protection visas on 26 October 1999.  The applications were refused by a delegate of the Minister on 20 December 1999.

9                     On 11 January 2000 the applicants applied to the RRT for a review of the delegate’s decision.  The RRT’s decision affirming the decision of the delegate was made on 22 May 2001 and handed down on 13 June 2001.

The Applicants’ claims in the Refugee Review Tribunal

10                  The applicants’ claims are set out in [7] – [13] of the judgment of Sackville J.  The effect of the claims was that the applicants feared persecution at the hands of the Russian authorities as a result of actions taken by the husband to leak information to the taxation authorities about the activities of a person by the name of Mr Kim who was the husband’s former employer and a person of considerable political influence in Russia.

11                  All of the events relied upon by the applicants as giving rise to their fear involved the husband.  I shall refer to him as “the applicant”.  A summary of the relevant events and claims is as follows:-

·        In 1997 the applicant took up a senior position with Mr Kim’s company.

·        In February 1999 the applicant informed Mr Kim of his concerns about the company’s activities, in particular its financial support of political candidates for election.

·        In the February conversation, Mr Kim said in a threatening way that a person could only leave the employ of the company by dying.

·        In March 1999, the applicant and another director of the company sent an anonymous letter to the Russian tax authorities about the company’s illicit funding of political candidates.

·        In late March 1999, the applicant had another conversation with Mr Kim who said that the applicant would wish he had never been born if he had in fact furnished the information to the tax authorities.

·        As a result of these events, the applicant became concerned for his safety and for the safety of his family.  His fear was said to be based on the powerful repercussions of his actions for persons such as the Vice-Governor of St Petersburg.

·        As a result, he made secret preparations to leave Russia.  He went on a business trip to Finland after obtaining his Australian visa but he fled Russia secretly with his wife and daughter in September 1999.

·        A few days after his departure, the police enquired of his relatives as to his whereabouts.

The Decision of the RRT

12                  The RRT’s reasons are dealt with in the judgment of Sackville J at [14] – [23].

13                  It is unnecessary to set out the reasons in detail.  In summary:-

·      The RRT found that the applicant was generally truthful and credible.

·      However, the RRT concluded that his claims about the harm he faces were overstated and exaggerated.

·      The RRT accepted the evidence about the anonymous letter to the tax authorities.

·      The RRT also accepted that warnings were given to the applicant by Mr Kim.

14                  The essence of the RRT’s reasons was that the applicant could not have a well-founded fear because nothing had happened to him in the six months between the conversation in March 1999 and his departure in September 1999.

15                  The RRT dealt with this at page 22 of its decision.  It recorded that the applicant was asked why he had not been mistreated in this period.  The only explanation said to have been given was that the authorities were waiting until after the elections due to be held in October 1999.

16                  The RRT then said:-

The Tribunal does not find this explanation very convincing  The applicant was called to meetings with Kim first in February 1999 when he was warned to keep out of things that were not his business.  The applicant leaked the information in late March 1999, and one week later he was called to another serious meeting with Kim.  By then Kim apparently knew about his actions.  The applicant was told of Kim’s discussions with the Head of Taxation, and Kim is said to have warned the applicant  that he should wish he had never been born if he was responsible for the leak.  The Tribunal accepts this account of what happened, and that in a general sense Kim warned the applicant and let him know clearly of his powerful political and other connections.  However apart from serious warning no further action was taken against the applicant by Kim, or Serdyukov, or people linked to them or acting on their behalf.  In the Tribunal’s view, if these powerful people had a serious interest in harming the applicant or getting rid of him, they would have done so soon after they learned of his actions.  The applicant did not leave Russia until September 1999 almost six months later, and he lived at the same address during that time and despite his concerns continued to work for Kim.  In the Tribunal’s view the fact the applicant was not harmed further by those he feared over these months suggests strongly that they had no serious interest in doing so.  It makes no sense that they would wish to harm him on his return, when they did nothing to him over the six months before he left.”

17                  The RRT went on to find that Mr Kim’s warning was not sufficiently serious to give rise to a well-founded fear of persecution.

18                  The RRT was not satisfied that the police visited the applicant’s relatives after he left Russia.

19                  In his supplementary written submissions Mr Killalea relied on a number of findings made by the RRT to support the argument that the decision was illogical.  For convenience, I will set out the passages, which appear at pages 20-21 of the decision, in full:

The Tribunal accepts that Kim was well-connected politically (and the applicant provided many details of his connections), that his connections reached in effect to the top of the Russian political structure in Moscow, and that in a general sense Kim’s links with particular politicians were known to the Russian public.

…

He learned that Kim was using the company to channel financial support for Serdyukov’s political campaigns and that he was responsible for the financial management of those campaigns.

…

That material also indicated other breaches of the law in relation to the channelling of funds for political campaigns, failure to disclose interests, and possibly the use of company money for illegal purposes.  The Tribunal accepts that Kim’s political connections were so good that they protected him from any serious consequences from the applicant’s efforts to expose him.

The Decision of Sackville J

20                  The applicant appeared in person.  He submitted that the RRT had failed to examine five aspects of his case.  His Honour recorded them at [24].  It is unnecessary to repeat them.  They included the seriousness of the threats made by Mr Kim and the fact, it was said, that the applicant’s involvement in compromising Mr Kim and the Vice-Governor was not established until after the applicant had left Russia.

21                  His Honour said at [25] that the applicant’s contentions were, in substance, an argument that the RRT had erred in making findings of fact.  His Honour also said that none of the contentions was sound.  He dismissed the two submissions to which I referred at [19] in [25] of his judgment as follows:

“Similarly, the RRT considered the nature and significance of the threats made by Mr Kim to the applicant.  Indeed, the RRT set out the nature of the threats and the circumstances in which they were made in considerable detail.  The RRT concluded, however, that, in all the circumstances, the threats were not sufficiently serious to give rise to a well-founded fear of persecution.  This was a factual judgment for the RRT to make.

…

There was no suggestion before the RRT that Mr Kim and his associates learned of the applicant’s actions only after he had left Russia.  On the applicant’s own account, Mr Kim was well aware of what had occurred by the time of the second interview in late March 1999.  The RRT’s finding on this issue corresponded with the applicant’s evidence.”

22                   The applicants relied, inter alia, on a ground of review under the then existing provisions of s 476(1)(g) of the Act, namely that there was no evidence to justify the making of the decision. 

23                  Section 476(4) of the Migration Act 1958 (Cth) provided that:-

“The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a)               the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)               the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist”

24                  His Honour dismissed the “no evidence” argument at [27] as follows:-

“The applicant also referred to the ground of review specified in s 476(1)(g) of the Migration Act, namely that there was no evidence or other material to justify the making of the decision.  Section 476(1)(g) of the Migration Act is, however, qualified by the terms of s 476(4).  The applicant is not able to satisfy either par (a) or par (b) of s 476(4).  It follows that the ground specified in s 476(1)(g) of the Migration Act has not been established.  In any event, there was evidence before the RRT to justify the decision.  Even if it erred in its assessment of the evidence (an issue on which I express no view), that would not constitute a ground of review.” (emphasis added)

The Decision of Emmett J

25                  The applicant attached a letter to his affidavit in support of the application.  His Honour recorded at [6] that the applicant asserted in the letter that his sister had been attacked and died in hospital in Russia on 2 March 2002.  This was said by the applicant to be further compelling evidence of his fear.  His Honour said the material indicated shocking circumstances.

26                  Nevertheless, his Honour dismissed the application His reasons were set out at [8] as follows:-

“However, those facts have no bearing on the power of the Court in relation to the appeal that the applicant seeks to bring.  The tragic circumstances of the applicant’s sister’s death occurred on 5 March 2002.  Those facts are not material or relevant to the decision of the Tribunal.  Accordingly, they have no bearing on the possible outcome of an appeal. I am not persuaded that there is any suggestion of error on the part of Sackville J in his reasons of 29 October 2001.  Accordingly, there would be no utility in extending the time within which to file a notice of appeal.  The filing of the notice of appeal would simply involve additional costs for which the applicant would ultimately be responsible.  Accordingly, I propose to reject this present application.” (emphasis added)

The Decision of Tamberlin J

27                  This was the first hearing at which the applicants were represented by counsel. 

28                  His Honour recorded at [4] that the applicants argued that the RRT had made an error of law in failing to consider an alternative conclusion which was open on the facts.  The applicants relied on the decision of the High Court in Hope v Bathurst City Council (1980) 144 CLR 1 (“Hope”).

29                  His Honour dismissed the argument at [5] of his judgment as follows:-

“The matters raised before Sackville J did involve an argument based on a question of law and the terms of s 476(1)(e) of the Migration Act 1958 (Cth) (“the Act”) were set out in the application although there was a mistaken reference in the subsection to paragraph (c) in lieu of section 476(1)(e).  I am not satisfied that there is any substance in the point that there has been an error of law in relation to the refusal of the Tribunal to accept a suggestion that the first applicant was not harmed by Mr Kim having regard to a pending election.  In my view it was open to the Tribunal to make the finding which it did after considering the material before it.” (emphasis added)

30                  His Honour also recorded at [7] the applicants’ argument that there was a second ground of appeal, namely “jurisdictional unreasonableness or constructive failure to exercise jurisdiction” which was not raised before Sackville J or Emmett J.

31                  Tamberlin J said at [8] that he did not consider that the argument was strong in light of the Full Court authority which was binding on him.

Illogicality

32                  Want of logic per se in the reasons of a decision-maker does not give rise to jurisdictional error; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 (Mason CJ).

33                  However, in Eshetu at [145] Gummow J, after referring to the judgment of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119, said that the power of review would be enlivened where:-

“… the satisfaction of the decision maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds” (emphasis added).

34                  His Honour went on to say at [146] that a stricter view of what must be shown to establish a case for relief under s 75(v) of the Constitution may be required.

35                  Earlier in his judgment, Gummow J at [136] set out the passage from the judgment of Gibbs J in Buck v Bavone which was the source of the statement of the “illogicality” principle which I have cited.  It is clear that the statement was limited to those cases where the decision-maker’s exercise of jurisdiction was conditioned upon the establishment of a jurisdictional fact.  This includes the state of satisfaction required by s 65 of the Act.

36                  However, as Gummow J observed at [137], where the criterion of which the decision-maker is required to be satisfied turns on factual matters on which reasonable minds could reasonably differ, it will be difficult to show that no reasonable decision-maker could have made the decision.  His Honour continued at [137]:-

“It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.”

37                  Further support for the view that illogicality in the sense referred to by Gummow J in Eshetu can constitute jurisdictional error is to be found in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [34] – [37] (McHugh and Gummow JJ), [138] (Kirby J); cf [5] and [20] (Gleeson CJ); and cf [173] (Callinan J).  See also Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 190 ALR 402 at [25] (Gleeson CJ), [100] Kirby J.

38                  Counsel for the applicants, Mr Killalea, focused upon the concluding words of the passage from the decision of the RRT which I have set out at [15].  He submitted that the RRT’s statement that “(i)t makes no sense” that the authorities or Mr Kim would wish to harm the applicant when they did nothing to him in the six months before his departure was illogical because there was no probative material or logical ground to support the finding.

39                  Mr Killalea submitted that there was evidence that the applicant was of value to the company and that, in any event, Mr Kim was not aware that the applicant was responsible for the leak to the tax authorities.

40                  There is a suggestion at page 22 of the RRT’s decision that the applicant had put forward the fact “that as he had become important”, no action would be taken until after the election.  However, it is clear, as Sackville J observed, that the applicant’s own evidence to the RRT was that Mr Kim was aware at the time of the March interview that the applicant had written to the tax authorities.

41                  It seems to me that the submission that the RRT’s finding was tainted by lack of probative material or logical grounds cannot be sustained.  The RRT was required to engage in a process of speculation in the sense referred to in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) as to whether or not a future event might occur.  It did so in the passage which I have set out at [16].

42                  The RRT did not, in that passage or in the last sentence of it, make a positive finding that there was no other possible explanation for the failure of the relevant persons to take any adverse action in the ensuing six months.   The effect of the passage, including a fair reading of the last sentence, is that the RRT concluded on the evidence before it that the appropriate inference to draw was that Mr Kim and the authorities would not wish to harm the applicant because they did nothing to him in the six months before his departure.

43                  The evidence was not all one way.  It was a factual matter on which reasonable minds could differ as to the inference to be drawn but there was probative material and a logical basis for the view which the RRT reached.  To describe it as illogical would be merely to express emphatic disagreement with the reasoning.  That, of course, is not a ground of review.

44                  The passages from the RRT’s decision relied on by Mr Killalea which I have set out at [19] contained findings which could have supported an inference that Mr Kim was prepared to wait until after the election.  But that was not the only inference which was open.

45                  Sackville J and Emmett J were of the view that there was evidence before the RRT to justify the decision.  I respectfully agree.  Quite apart from whether the applicants are bound by res judicata or issue estoppel, this is sufficient to dispose of the illogicality ground.

46                  It is true that Sackville J’s finding was made in answer to a “no evidence” claim under s 476(1)(g) of the Act as it then stood.  But s 476(4)(a) was in similar terms to the illogicality ground as stated by Gummow J.  It dealt with decisions predicated upon the necessity to establish a jurisdictional fact and provided that the “no evidence” ground of review was not made out unless there was no evidence or other material from which the decision-maker could reasonably be satisfied that the matter was established.  Sackville J observed that the applicants were not able to satisfy s 476(4)(a).  In my view, the same conclusion applies to the illogicality ground

.

Error of Law

47                  Mr Killalea relied on the following passage from the judgment of Kitto J in NSW Associated Blue Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 512 which was cited by Mason J in Hope at 8:-

"The next question must be whether the material before the Court reasonably admits of different conclusions as to whether the appellant's operations fall within the ordinary meaning of the words as so determined; and that is a question of law Broken Hill South Case (1941) 65 CLR, at p 155 : see also per Isaacs and Rich JJ. in Australian Slate Quarries Ltd. v. Federal Commissioner of Taxation (1923) 33 CLR 416 at p 419.   If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact: see per Williams J. in the Broken Hill South Case at p 160 ."

48                  The effect of Mr Killalea’s submission was that the material before the RRT reasonably admitted of two alternative conclusions but the RRT considered only one.  That is to say, the RRT is said to have decided that the authorities and Mr Kim would not wish to harm the applicant without considering the contrary view.  This is said to amount to an error of law.

49                  However, the remarks of Kitto J do not require a decision-maker to state all possible inferences open on the facts before deciding which is the correct conclusion.  Indeed, there can be no such requirement; see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [9], [68] and [69].

50                  The true significance for present purposes of cases such as Hope, and other authorities on the distinction between a question of law and a question of fact, is whether the inference drawn by the decision-maker was open; see Hope at 9; see also Vetter v Lake Macquarie City Council (2001) 202 CLR 439. 

51                  Here, in my view, it was open to the RRT to draw an inference that the applicants did not have a well-founded fear as a consequence of the failure of the authorities or Mr Kim to harm the applicant in the six month period before his departure.  Of course, it would have been open to the RRT to draw the inference for which the applicants contended but it cannot be said that no other conclusion was reasonably open.  Thus, there was no error of law in the RRT’s finding.

52                  The same view was reached by Tamberlin J.  I respectfully agree with his Honour.

53                  It would be wrong to read the passage set out at [15] as indicating that the RRT failed to consider any competing inference.  The RRT was of the view that inaction during the six months period was the critical factor.  It does not follow that the RRT made a finding that this was the only available inference.  In my opinion, that is not the effect of the words “(i)t makes no sense” in the last sentence of the passage.

Res Judicata, issue Estoppel, Anshun estoppel and Abuse of Process

54                  In view of the conclusions which I have reached on the “illogicality” ground and the “error of law” ground, it is unnecessary for me to consider these questions.

Extension of Time

55                  The application was out of time under O 55 r 17 and O 55 r 30 of the High Court Rules.  The applicants sought an extension of time but it is also unnecessary to consider this question.

Amendment to rely on s 39B of the Judiciary Act

56                  I have power to grant leave to amend the grounds on which the order nisi was sought; Cam Mui Chi v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 14 at 37 – 39.

57                  The purpose for which the amendment is sought is to avoid the time limits fixed by the High Court Rules.  Although I do have power to permit an amendment, it seems to me that the discretion is intended to facilitate the course of the litigation rather than to enhance or diminish the position of one party over the other; Robinson v Shirley (1982) 149 CLR 132 at 136  (Brennan J).

58                  Accordingly, I refuse leave to amend in order to rely on s 39B of the Judiciary Act rather than s 75(v) of the Constitution.

Orders

59                  Notwithstanding the provisions of O 51A r 5(1), the appropriate order in the present case is that the proceedings be dismissed with costs.

Associate:

Date:                29 March 2004