FEDERAL COURT OF AUSTRALIA

SZAPC v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 995

MIGRATION – appeal – protection visa – Ahmadiyya religion in Bangladesh – claim to practise discreetly – whether consideration given to reason for discreet practice – finding that independent information indicated situation had improved – whether no evidence – whether jurisdictional fact.

Appellant S395/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 216 CLR 473 followed

Applicant S70 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 182 cited

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 distinguished

H v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 63 ALD 43 cited

Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 followed

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 followed

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 followed

NADH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 followed

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263 cited

NAEB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 79 distinguished

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 cited

NAVZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 13 cited

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 followed

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 followed

VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 followed

WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 cited

Minister for Immigration & Multicultural & Indigenous Affairs v W306/1A [2003] FCAFC 208 cited

SZAPC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

N 670 OF 2004

MADGWICK J

SYDNEY

27 JULY 2005

THE COURT ORDERS THAT:

1.                  The Refugee Review Tribunal be joined as a second respondent.

2.                  Except as to the costs order made by the Federal Magistrates Court, the appeal is allowed.

3.                  A writ of certiorari be issued, directed to the second respondent quashing its decision dated 21 April 2004.

4.                  A writ of mandamus be issued, directed to the second respondent, requiring it to determine according to law the application for review of the delegate of the first respondent dated 23 October 2002.

5.                  The respondent is to pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

MADGWICK J:

1                     This is an appeal from a decision of a Federal Magistrate on 21 April 2004 (see [2004] FMCA 288) dismissing an application for review of a decision, delivered by the Refugee Review Tribunal (‘the Tribunal’) on 23 April 2003.  The Tribunal had refused to grant a protection visa to a national of the People’s Republic of Bangladesh, whose application included her two children.  I will refer to the mother as the appellant, as there are no separate claims of the children and the outcome of their appeal depends on the success of their mother’s appeal.

2                     The appellant arrived in Australia on 6 May 1996 and, on 28 December 2001, lodged her application for a protection (class XA) visa, by reason of her religion.  The Minister’s delegate refused to grant a protection visa on 30 September 2002, and the Tribunal affirmed this decision.

tribunal’s decision

(i)         The appellant’s claims

3                     The claims made by the appellant necessitate the consideration of the Tribunal’s ‘Decision and Reasons for Decision’ in some detail.  The Tribunal Member set out the claims of the appellant, including that her ethnicity and religion are Ahmadiyya.  She originally claimed to have ‘been working as an active priest’, managing ‘about 200 followers’ who regularly attended her religious meetings.  From the 1980’s she started facing problems in the Gopalganj area, and in 1990 was delivering a lecture, when some of those attending took exception to it and started a riot.  She claimed that ‘they targeted me to kill’ but she was escorted away from the riot.  After that, the appellant claimed, Sunni Muslims monitored her activities and directly threatened to ‘vanish’ her.

4                     The appellant further claimed that she was attacked with a sharp weapon in December 1992, her followers were ‘severely tortured’, and when she tried to contact the police ‘they did not help’.  From 1992 – 1996, the appellant stayed ‘underground’.  She claimed she did not organise any religious meetings or attend other Ahmadiyya gatherings, and ‘faced death risks in every day and week during these days’ either from close villages or other fanatic Sunni Muslims.  The appellant claimed that properties and businesses of her supporters were attacked and burnt ‘into ashes’, but again the police did not respond because they ‘did not consider us as the citizen of the country’.

5                     The appellant claimed that Ahmadiyyas are subject to ‘instant attack’; in 1999 the national Imams had issued a Fatwa against Ahmadiyya supporters and, whilst in Sydney, she has been threatened and asked to leave Australia ‘otherwise they would kill her’.

6                     The Tribunal Member then recorded the appellant’s claims at the hearing before him, including the following:

‘She claims that she attended secret meetings and kept such meetings confidential as if it was known claims they were beaten by the Sunnis.  She claims that she became more involved as she became older and the Sunnis became aware she was an Ahmadiyya.  She claims that people laughed at her and teased her and would beat them up and the police would not help.  Asked when this happened, the [appellant] initially claimed it was about 1989 – but with further reflection said it was a long time ago and she could not remember, but she repeated the police would not help.’ (Emphasis added.)

7                     Further exchanges between the appellant and the Tribunal at the hearing were also recorded.  These included:

‘The Tribunal asked the [appellant] why in view of her claims, she did not apply for refugee status after she arrived in May 1996 – and not wait until December 2001.   In reply, the [appellant] claimed that she thought it was safe and didn’t understand but now feels that in view of all the difficulties she wanted to ask the Australian government to allow her to remain on humanitarian grounds.  The Tribunal reminded the [appellant] that the Tribunal’s job was to make a decision about [her] refugee claims and other issues should be taken up with the department.

Asked what she thought would happen to her if she returned to Bangladesh, the [appellant] claimed that she had been told by friends not to return as she will not be safe and “you are better off where you are”.   She claims she has nowhere to stay as people are against them, she does not have parents to provide shelter, and her husband does not have a job.   Asked if she had any further claims, the [appellant] claimed that she had explained her position and was seeking help from the Australian government.  She claims there is no safety or security in Bangladesh, her children want to stay in Australia, they have no house or property to return to in Bangladesh, her children don’t want her to be killed in Bangladesh, and so she wants to remain in Australia.’

(ii)        The independent material

8                     The Tribunal then referred to independent country information; namely a report released by the US State Department’s Bureau of Democracy, Human Rights and Labor on 7 October 2002, which includes the following passages:

‘…Citizens generally are free to practice [sic] the religion of their choice; however, police, who generally are ineffective in upholding law and order, often are slow to assist members of religious minorities who have been victims of crimes.  An increase in crime and violence in the first few months after the October 2001 elections has exacerbated this situation and increased public perceptions of the vulnerability of religious minorities at large.

The generally amicable relationship among religions in society contributed to religious freedom;  however, the number of Hindu, Christian, and Buddhist minorities who perceive discrimination from the Muslim majority has increased.

…

In the past, members of the Ahmadi sect, whom many mainstream Muslims consider heretical, were the target of attacks and harassment.  In 1999 several mosques belonging to the sect were attacked.  In October 1999, a bomb killed six Ahmadis who were attending Friday prayers at their mosque in Jhulna.  The only suspect questioned by police was a fellow Ahmadi who later was released.  No other suspects have been questioned and the case remains unresolved.  In November 1999, Sunni Muslims ransacked an Ahmadi mosque near Natore, in the western part of the country.  In subsequent clashes between Ahmadis and Sunnis, 35 persons were injured. 

Ahmadis regained control of their mosque and filed a criminal case against 30 persons allegedly responsible for the conflict.  That case remains pending.  After a January 1999 attack on an Ahmadi mosque in Kushtia, two police officials were disciplined for failing to discharge their duties in controlling the incident.  Ahmadi leaders report that their mosque remains under the control of local police, and that Ahmadis have been unable to worship since the January 1999 attack.  As of the end of the period covered by this report, Ahmadis remained unable to worship at the mosque in Kushtia.’  (Emphasis added).

9                     The Tribunal Member then purported to set out his findings and reasons, including the following:

‘The [appellant] claimed that in 1999 it was reported in the media that a leading Bangladesh Imam declared Muslims could kill Ahmadiyyas.  The Tribunal accepts the claims made by the [appellant] at the hearing over those made in her protection visa application as it was able to explore her claims with her in detail and also accepts that as a discreetly practicing [sic] Ahmadiyya she spent time at her brother’s house, going there for religious practices every two weeks or a month, and for the big ceremonies every six months, depending what she had to do.  However, the Tribunal does not accept the [appellant’s] claims that [she] was an “active priest” delivering lectures that gave rise to her group being attacked by thousands of villagers and that this led to her being subsequently monitored and threatened … .

…

The [appellant’s] core claim is that Muslims don’t accept that Ahmadiyyas are Muslims and that people laughed at her and teased her and would beat up Ahmadiyyas and the police would not help.

…

… Asked what she thought would happen to her if she returned to Bangladesh, the [appellant] claimed that she had been told by friends not to return as she will not be safe and they made remarks such as you are better off where you are.  She claims she has nowhere to stay as people are against them, she does not have parents to provide shelter, and her husband does not have a job.  She claims there is no safety or security in Bangladesh, her children want to stay in Australia, they have no house or property to return to in Bangladesh, her children don’t want her to be killed in Bangladesh, and so she wants to remain in Australia.

The Tribunal … accepts that the [appellant] and her children are Ahmadiyya and that she practiced [sic] her beliefs discreetly when she was in Bangladesh.  The Tribunal also accepts the [appellant’s] claims made at the hearing that she was called “big sister” but did not occupy an official or influential position in the Ahmadiyyas.  She claims that her parents are deceased so she has no one to provide her with shelter yet at the same time she claims, and the Tribunal accepts, that even after she was married she spent a lot of her time living with her brother.  The Tribunal finds that this draws into question the [appellant’s] claims of not having access to shelter if she returned to Bangladesh and raises questions about her credibility.  Nevertheless, the Tribunal is willing to give the [appellant] the benefit of the doubt and accept that in 1989 she may have had some difficulties because of her beliefs – albeit by her own admission that this was “a long time ago” – although finds that if her beliefs were known to her husband’s employer (the Bangladesh MFA) this did not result in any employment discrimination of her family or prevent the family from being given two diplomatic postings:  one to Qatar for 7 years and the next to Canberra for 5 years.  The [appellant] referred to media reports that in 1999 a leading Bangladesh Imam declared Muslims could kill Ahmadiyyas.  As was put to the [appellant] at the hearing … the Tribunal is satisfied that independent country information indicates that the situation has improved (The International Religious Freedom Report 2002 on Bangladesh, released by the US State Department’s Bureau of Democracy, Human Rights, and Labor on 7 October 2002).  Moreover, she does not claim that her brother (whom she regularly visited for religious practices every two weeks or a month, and for the big ceremonies every six months prior to coming to Australia) has had any difficulties because of his beliefs whatsoever or that other Ahmadiyya friends or relatives have been persecuted.  While claiming that she had been told by friends not to return as she will not be safe and she is better off where she is and there is no safety or security for her in Bangladesh, the [appellant] did not elaborate on these claims and the Tribunal has not been able to satisfy itself that the essential and significant reason for any difficulties the [appellant] may encounter in Bangladesh are Convention related.  Accordingly, based on the claims made by the [appellant] and in view of the independent country information, the Tribunal is not able to satisfy itself that on this basis either she has in the past experienced serious harm or, more importantly, that she has a well founded fear of serious harm amounting to persecution for a Convention reason if she returns to Bangladesh, either now or in the foreseeable future.’  (Emphasis added.)

decision of the Federal magistrate

10                  The appellant raised five grounds of error before the Federal Magistrate, claiming the Tribunal:

(i)                  failed to accord the appellant procedural fairness;

(ii)                ‘made no findings as to what sociopolitical changes might occur in Bangladesh in the reasonably foreseeable future’, and thus ‘failed to assess’ whether the appellant’s ‘fears of being persecuted for being a member of Ahmadiyya religious group and minority community in Bangladesh were well founded in the reasonable foreseeable future’;

(iii)               did not base its decision upon circumstances ‘giving a rational foundation for the belief entertained’, as the Tribunal’s findings, ‘when applied to the applicable criteria, meant that the [Tribunal] should have been satisfied that the appellant had met those criteria’;

(iv)              did not provide the appellant with particulars of information, which formed part of the reason of the Tribunal’s decision, namely that the religious violence against the Ahmadiyya religious group supporters/leaders had subsided, and that information was not ‘just information about a class of persons’; and

(v)                did not put to the appellant its doubts about documents containing information personal to the appellant from different sources of Bangladesh, and those doubts formed part of the reason for the Tribunal’s decision.

11                  The appellant was unrepresented in the Federal Magistrates Court.  The learned Federal Magistrate noted the appellant’s submission that the Tribunal did not provide an opportunity to comment on adverse materials before it.  The Federal Magistrate took this to mean certain country information and found that it fell within the exception to s 424A(3)(a) of the Migration Act 1958 (Cth) (‘the Act’)and that in any event it was certainly discussed at the hearing.

12                  His Honour referred to the appellant’s attack on the Tribunal’s findings as to her credibility, stating that the finding was within the remit of the Tribunal.

13                  The learned Federal Magistrate was of the opinion that the appellant’s oral submissions were ‘a rehearsal of the claims made before the Tribunal and a plea that the Tribunal had wrongly failed to believe her in respect of those claims.’  Following NAZZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 278, where it was stated (at [18]) that ‘[t]he fact that an appellant emphatically disagrees with the [Tribunal’s] finding is not a basis for concluding that the decision was affected by jurisdictional error’, his Honour found:

‘This [appellant] does emphatically disagree with the Tribunal’s findings but those findings were based upon evidence that was available to it and upon considerations of fact, which even if they were wrong, and I see no reason why they were, would not be available to ground review.’

The current appeal

14                  Following an Order 80 referral, the appellant was able to obtain legal representation for the first time, although it is noted that she had previously received assistance from an immigration consultant. 

15                  By her proposed amended notice of appeal, the appellant raises two grounds of jurisdictional error.  The first is that the Tribunal found that the appellant practised her beliefs ‘discreetly when she was in Bangladesh,’ and assumed that the appellant would continue to practise her beliefs discreetly if required to return to Bangladesh.  In argument the point was alternatively put that the Tribunal Member had failed to exercise his jurisdiction in not determining the truth of the appellant’s claims that the reason for practising her religion discreetly was her fear of persecution if she were open about her beliefs and practice.

16                  The second ground is based on the Tribunal’s finding that ‘independent country information indicates that the situation has improved’ in Bangladesh for Ahmadiyyas.  The appellant says there was an absence of evidence to support this finding, and/or the finding involved a material error of fact; in either case, it was argued, this amounted to jurisdictional error.

17                  Neither of these grounds was raised before the Federal Magistrate, and as a consequence, there is a real issue whether this Court should permit them to be raised on appeal.

18                  The appellant submits that leave to argue the new grounds on appeal should be given as she did not have legal representation in the Federal Magistrates Court, although it is conceded that the appellant had ‘legal assistance, or assistance from a person with knowledge of immigration law’ in preparing the documents filed in that Court.

19                  The appellant further submits that the second aspect of the second ground of appeal, the claimed error of fact has not yet been accepted by the High Court as giving rise to jurisdictional error and that the first ground of appeal had only fairly recently been recognised by the High Court (see Appellant S395/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 216 CLR 473) when the appeal was heard (in April 2004). 

20                  The first respondent submits that the appellant should not be allowed to raise the two new grounds.  The first relies on what was said in Gomez v Minister for Immigration & Multicultural Affairs (2002) 190 ALR 543 at [19]:

‘The insuperable difficulty that the appellant faced — a difficulty that he could not overcome in the court below — and one which he was unable to overcome in this court, was that the tribunal did not accept the evidence that he gave with respect to his claims that he and his family were entitled to refugee status.  The tribunal refused to accept the appellant’s evidence….  As a consequence, the whole basis for giving consideration to his claimed political affiliations and his family connections, was removed.’

21                  Secondly, the first respondent contends that the matters raised by the appellant do not constitute ‘exceptional circumstances’, especially as the decision in S395 had been in existence for more than four months at the time of the hearing before the Federal Magistrate.  The first respondent further contends that the proposed grounds are without merit: essentially for the reasons that, in relation to the first ground, the appellant did not make any claim before the Tribunal that her discreet practice was for fear of persecution and that in any event, the Tribunal was not requiring the appellant to act in a particular way in the future; in relation to the second ground, the first respondent contends that there was some evidence for the Tribunal’s statement that circumstances had improved and that the weight to be given to country information, its interpretation and accuracy are all factual matters with which the Court cannot interfere: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] – [14].

22                  In VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158, a Full Court referred to the principle that leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so (citing O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FRC 424), and later said (at [48]):

‘The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters.  The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated.’

23                  A differently constituted Full Court expressed a similar view in Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 (at [22] – [24]):

‘… We recognise that there is a particular sensitivity in refugee cases where an adverse decision may have very serious consequences for an applicant.

Although it is in the interests of justice that decision be made on the true merits of the case sought to be argued, the structure and integrity of the appellate process must also be taken into consideration.  It is incumbent upon parties bringing applications to the Court to review decisions of tribunals such as the Refugee Review Tribunal to make it clear from the outset what are the substantive grounds of review relied upon. …

[I]n order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised.  That does not mean that an appellate court should enter upon a full consideration of the grounds.  To do so would make the requirement for leave meaningless.  It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success.  We also consider it appropriate to take into account whether the appellant had the benefit of legal representation at the hearing before the primary Judge.’

Consideration

24                  In accordance with the principles contained in VAUX and Iyer, there appear to me to be a number of relevant questions which might often be worth considering when determining whether the Court should exercise its discretion to permit fresh arguments to be raised.  These include: whether the new legal arguments have a reasonable prospect of success; whether there is an acceptable explanation of why they were not raised below; how much dislocation to the Court and efficient use of judicial sitting time is really involved; what is at stake in the case for the appellant; whether the resolution of the issues raised has any importance beyond the case at hand; whether there is any actual prejudice, not viewing the notion of prejudice narrowly, to the first respondent and if so, whether such prejudice can justly and practicably be cured; and where, in all the circumstances, the interests of justice lie.

25                  In my view, without at this point entering into a full consideration of the grounds, the arguments sought to be raised have reasonable prospects of success, and although the appellant may have had some form of legal assistance in the past, ultimately, she was unrepresented in the Federal Magistrates Court and this may be said to be the true reason such arguments were not before the Federal Magistrate.  There was certainly no strategic reason for failing to raise the new grounds in the Court below.  On the other hand there is no suggestion that the appellant was unable to afford legal representation in the Court below.

26                  Further, as stated in the passage cited from Iyer above, the ‘structure and integrity of the appellate process must also be taken into consideration’.  This is not a case where further evidence is necessary in order to consider the new grounds, but I note the prejudice to the first respondent in the further incursion of costs, which, as in many cases concerning refugee claims, is likely not to be remedied, in a practical sense by an appropriate costs order. 

27                  Full argument in relation to the new points has not significantly extended the judicial sitting time required to dispose of this appeal, particularly in the light of what is at stake for the appellant and her children personally.  Any decision made with the benefit of such argument (notably in relation to the second ground sought to be argued), should assist future decision makers in the proper discharge of their duties.

28                  In my view, given the potentially very serious consequences for the appellant, the lack of appropriate representation before the Federal Magistrate and the merit and significance of the proposed grounds, the overall interests of justice require that such factors should be taken to outweigh the further costs incurred and inconvenience to the first respondent.  In the end, full argument having taken place, my conclusions as to the ultimate merits of the appellant’s case outweigh her apparent choice not to be legally represented below.

29                   As this case is, therefore, an exceptional case, where it is expedient in the interests of justice to depart from the well-established general principle of finality of litigation, including the preservation of the integrity and structure of the appellate process, leave to rely on the new grounds will be granted.

Ground (1) – The significance of the ability to practise religious beliefs discreetly

30                  Before embarking on any consideration of this ground, I observe that it is a matter of some difficulty to understand what aspects of the appellant’s claims were accepted and what were not.  This is unfortunate.  Doing the best I can, I think that the Tribunal is to be understood as having decided:

(1)               The appellant was a seriously observant adherent of the Ahmadiyya faith.

(2)               In the past, from perhaps 1989 to 1999, some Muslims discriminated against, and, on occasions caused serious harm to, Ahmadiyyas.

(3)               Although there is a ‘generally amicable relationship among religions in Bangladeshi society’ and at high levels of government, there is a degree of discrimination against Ahmadiyyas by some Muslim police officers, extending so far as tolerating serious assaults on them, which the state has not been able effectively to eradicate.

(4)               The past maltreatment of Ahmadiyyas has improved.

(5)               In any case, if the applicant should, on her return, practise her faith as she previously did (and there was apparently no claim that she would act differently), she would be safe from serious harm, as she had been when practising discreetly in the past.

(6)               She had other, non-Convention, reasons to anticipate difficulties if returned to Bangladesh.

(7)               Her fear of future serious harm may not be well-founded.

31                  It is clear that the Tribunal accepted the appellant’s claim of practising her religion discreetly.  The Tribunal Member also said that he accepted the appellant’s claims at the hearing over those in her application.  One of those claims was that she attended secret meetings and kept them confidential for fear of being beaten by the Sunnis, however, the Tribunal concluded (set out in [9] above) that it was not satisfied that the appellant had experienced serious harm or, more importantly, that she has a well-founded fear of future serious harm.  It is thus at least unclear whether the claimed reason for the discreet practice was accepted.  Either it was, or there was no finding about it.  The case was argued on the assumption that the latter characterisation of the Tribunal Member’s reasoning is correct.  I will deal with the case on that basis.

32                  As mentioned above, counsel for the appellant relies on S395 in submitting that the Tribunal committed jurisdictional error by apparently assuming that the appellant would continue to practise her beliefs discreetly without considering whether the reason for that practice was for fear of persecution.  It must be said, in fairness to the Tribunal Member, that the Tribunal’s decision was delivered before the decision in S395 was handed down.  The appellant drew the Court’s attention to a number of passages in S395 in support of this argument, including, per McHugh and Kirby JJ (at [40] and [50]):

‘[P]ersecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality.

…

In so far as decisions in the Tribunal and the Federal Court contain statements that asylum seekers are required, or can be expected, to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed.’

33                  The appellant also cited the judgment of Gummow and Hayne JJ (at [82] – [83] and [88]):

‘[T]o say that an applicant for protection is “expected” to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do.  The Tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection. … [I]f the Tribunal makes such a requirement, it has failed to address what we have earlier identified as the fundamental question for its consideration, which is to decide whether there is a well founded fear of persecution.  It has asked the wrong question.

Addressing the question of what an individual is entitled to do (as distinct from what the individual will do) leads on to the consideration of what modifications of behaviour it is reasonable to require that individual to make without entrenching on the right.  This type of reasoning … leads to error. …

…

… The Tribunal did not ask why the appellants would live “discreetly”.  It did not ask whether the appellants would live “discreetly” because that was the way in which they would hope to avoid persecution. …’  (Emphasis added.)

34                  The appellant submits the error of approach lies in the Tribunal’s implicit assumption that the appellant would continue to practise her religion discreetly in the future, and that by its silence on the matter, the Tribunal failed to consider the reason for the discretion.  The absence of attention to the issue permeates the Tribunal’s reasons, so that it cannot be said that the error has not affected the Tribunal’s end conclusion.

35                  The first respondent submits that, even assuming the Tribunal’s finding carries an implicit finding that the appellant would continue to so practise if returned to Bangladesh, such a finding does not contravene S395 as it is merely a finding of future behaviour, not the Tribunal requiring the appellant to act in a particular way in future (relying on NAEB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 79; 83 ALD 258).

36                  The first respondent further submitted that the appellant did not make a substantive claim that her past discreet practice was because of fear of persecution.  However, in the light of the materials extracted above, that submission cannot be sustained on the facts.  It was further submitted that the appellant had not, in reality, presented a serious case of religious or other Convention-based persecution and that S395 cannot apply in such circumstances.

37                  NAEB concerned an appellant from China claiming to be a Falun Gong practitioner.  The Tribunal found that the most serious consequence that would eventuate if the appellant should be returned to China would be the requirement for him to renounce his belief in Falun Gong, although it would be possible for the appellant to continue to practise Falun Gong in private.  North and Lander JJ said (at [23]):

‘If the Tribunal accepted that the appellant would modify his conduct, but failed to ask whether that would have occurred as a result of the threats of serious harm to the followers of Falun Gong, the case would fall within the reasoning of the majority judgments in S395/2002.’

38                  However, their Honours went on to say (at [26]):

‘The substance of [the Tribunal’s] reasons [was] that [the appellant] so lacked commitment to Falun Gong that it would not trouble him to renounce his belief.  Similarly, his limited commitment to Falun Gong meant that if he were confined to the practice of Falun Gong in private, his beliefs and practices would not be compromised in a significant way.  Viewed in this way, the Tribunal did ask why the appellant would renounce Falun Gong, or practice [sic] Falun Gong in private if returned to [China]’.

39                  The Tribunal’s approach in NAEB was not the approach of the Tribunal Member in the present case.  Here, the Tribunal accepted that the appellant had practised her religion discreetly, and seems to have assumed that the appellant would practise discreetly in the future, but no consideration was given to whether that choice was for a reason that would attract the Convention.  In my view, having regard to what was said in S395, a positive finding in this regard was required.  Before considerations of whether any genuinely held fear is well-founded logically come into play, the Tribunal Member must determine whether the applicant does fear future harm for a Convention reason.  However, any such reasoning process is not apparent on the face of the Tribunal’s decision.  In my view, for the Tribunal Member to simply arrive at a conclusion, without consideration of that issue, was not to ask the correct question.  This was not a case where the Tribunal Member found it unnecessary to determine whether the appellant had a genuine fear of persecution for a Convention reason because, in any event, the fear would not be well-founded.  If it were found that the appellant had in the past acted discreetly, and that other Ahmadiyyas such as her brother were still doing so, for fear of persecution, it might seem very difficult to decide that any genuine fear held by the appellant was not well-founded.  At least it would need to be explained how the two propositions could logically co-exist.  That failure was a constructive failure to exercise the Tribunal’s jurisdiction.

40                  The Full Court decision of WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 is apt.  In that case it was said:

‘It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.  Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.’

41                  As I said in NAVZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 13 at [47], if factual issues which could reasonably affect the result have not been resolved and no adequate explanation is apparent, the effect is no different than if that issue had been overlooked.  The failure is sufficiently fundamental to amount to a jurisdictional error.

42                  It was correctly submitted for the first respondent that the Tribunal’s reasons have to be read beneficially and not ‘minutely and finely with an eye keenly attuned to the perception of error’:  Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.  However, it is worth recalling the observations in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 of McHugh, Gummow and Hayne JJ as to s 430 of the Act, which provides that:

‘(1)      Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

…

(c)                sets out the findings on any material questions of fact; and

(d)               refers to the evidence or any other material on which the findings of fact were based.’

43                  Their Honours said (at 346):

‘It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do.  Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal.  It 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.  The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material.  This may reveal some basis for judicial review … in proceedings brought under s 75(v) of the Constitution.  …  It may reveal jurisdictional error.  The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.’ (Emphasis added; footnotes omitted.)

44                  The first respondent further submitted that the Tribunal’s reasons must be read in the light of the claims that are made and if the claims are so thin as to be almost non-existent, there is nothing for the Tribunal to investigate.  There were, to be sure, issues as to the appellant’s credibility.  However, the Tribunal clearly accepted the appellant’s claim to have practised her beliefs discreetly and accepted at least some of her claims at the hearing over those accompanying her original application to the Minister, one such claim being to have held secret meetings to avoid being beaten by Sunnis.  Given those findings, the appellant’s claim can hardly be treated as non-existent or virtually so; it was made out on a critical point.  In accordance with S395, and following the approach identified in Yusuf, a consideration of the appellant’s probable future conduct and the reason for it was warranted.  The absence of an indication that the Tribunal turned its mind to the issue is sufficient to demonstrate a jurisdictional error.

Ground (2) - Absence of evidence to support finding that situation had improved

45                  For completeness, consideration will be given to the appellant’s argument that the Tribunal’s satisfaction that ‘independent country information indicates that the situation [for the Ahmadiyya in Bangladesh] has improved’ was either contrary to the independent country information referred to and relied upon by the Tribunal or at least not supported by that information.

46                  Counsel for the appellant conceded that there was evidence before the Tribunal on the basis of which its ultimate conclusion, namely that the appellant was not a Convention refugee, could theoretically have been supported.  It was submitted, however, that where the actual basis for that conclusion was based on an intermediate finding for which there was no evidence, this nonetheless constitutes jurisdictional error.

47                  Citing Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [39] per Gummow and Hayne JJ, Gleeson CJ agreeing, the first respondent submitted that a ‘jurisdictional fact’ must be involved before there can be a jurisdictional error based on a ‘no evidence’ ground.  This appears to me to be correct.  The first respondent then points to the country information cited by the Tribunal (and set out in [8] above) which refers to generally amicable relations between the religions and specific information indicating no attacks on Ahmadis since 1999, and steps to redress attacks in and after 1999.  The first respondent submits that there was, therefore, some evidence of the Tribunal’s statement that circumstances had improved.  The first respondent further says that even leaving aside the country information, there was ample evidence for the Tribunal to conclude that the appellant’s fears of religious persecution (if any) were not well-founded.

48                  It seems to me, however, that the first respondent’s argument oversimplifies the position.    In Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 656 – 657 Gummow J had indicated that under a statutory regime of judicial review, ‘a criterion of “reasonableness review” would permit review in cases 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’. 

49                  The concept of ‘reasonableness review’ expressed by Gummow J in Eshetu stems, as his Honour indicated in a footnote, from a doctrine in U.S. law.  The passage from the U.S. text book cited by his Honour (Schwartz, Administrative Law, 3^rd ed. (1991)) is, so far as presently relevant, as follows:

‘A finding such as that of employment thus involves both interpretation of the statute and the jurisdiction of the agency.  Despite this, the Supreme Court has laid down the rule that review of such a finding is to be governed by the reasonableness test.  …  It treats the finding like a finding of fact for review purposes – reviewable, like it, only to determine whether it is reasonable in the circumstances of the case.

The rule of review under the reasonableness test of findings involving application of legal concepts to facts is usually called the “doctrine of Gray v. Powell,” ….  A railroad held leases on coal lands where it was having coal mined by independent contractors.  The coal was used in the operation of the railway.  The Bituminous Coal Act was inapplicable “to coal consumed by the producer.”  An application by the railroad for an exemption under this provision was denied.  The court of appeals reversed the agency denial.  According to it, the railroad was a “producer” of coal within the exemption provision.  “For the purpose of the Act, we cannot see what difference it makes whether the owner of a mine digs the coal himself with his own organization or whether he has it dug for him by an independent contractor, who assumes the risks and responsibilities of that relationship.”  The agency construction was erroneous and its order could not stand.

That the Supreme Court reversed is less important than the reason given for the reversal.  Review of the agency conclusion that the railroad was not a producer might not be based upon independent judicial determination of whether it came within the statutory term.  Instead,

In a matter left specifically by Congress to the determination of an administrative body, as the question of exemption was here ..., the function of review placed upon the courts … is fully performed when they determine that there has been … an application of the statute in a just and reasoned manner.

The sweep of the statutory term “producer” must be left to the agency.  Although there was no dispute as to the evidentiary facts, that did not permit a court to substitute its judgment.

It is at least arguable that the agency determination in Gray v. Powell was not right.  But the Court expressly stated that that was not the judicial concern.  The reviewing court may reverse only when it ‘can say that a set of circumstances deemed by the Commission to bring them within the concept “producer” is so unrelated to the tasks entrusted by Congress to the Commission as in effect to deny a sensible exercise of judgment.’  In such a case, the administrative finding is not only not right, but also not reasonable.  Where, on the contrary, the agency determination, though perhaps erroneous in the view of the reviewing court, is a reasonable one, ‘it is the Court’s duty to leave the Commission’s judgment undisturbed.’  …

Gray v. Powell lays down the doctrine that, on review, an agency application of a statutory term like “producer” will be upheld if it is reasonable, even thought the court might have construed the term differently on its own independent judgment.  “As to mixed questions of law and fact, such as … the application of a statutory standard to particular fact findings (e.g., bargaining in good faith), the court must sustain the board’s conclusions if reasonable.”  The administrative application of the statutory term is conclusive unless arbitrary.  The court is not justified in considering the question of law enmeshed in the finding;  only where there is no reasonable warrant may the judge intervene.  …’  (Emphasis added;  footnotes omitted.)

50                  His Honour should not be understood to have embraced a doctrine of ‘deference’ to executive agencies, but rather the invalidity of ‘arbitrary’ executive action.  In Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S20/2002 (2003) ALR 59, Gleeson CJ observed that, where there is a duty to act judicially, a power must be exercised ‘according to law and not humour’.  McHugh and Gummow J (Callinan J agreeing) indicated that ‘[s]ection 75(v) of the Constitution entrenches a minimum measure of judicial review’: [27].

51                  McHugh and Gummow JJ said (at [36]) that –

‘… some stricter view perhaps should be taken of what must be shown to make out a case of error grounding relief under s 75(v) of the Constitution where the legislation, as does s 65, conditions the attraction of jurisdiction upon the attainment by the decision-maker of satisfaction that a certain state of affairs exists and that state of affairs includes factual matters.  Such a stricter view would appear to have been taken with the distinction drawn in R v Australian Stevedoring Industry Board;  Ex parte Melbourne Stevedoring Co Pty Ltd.  This contrasts insufficiency of evidence to support a conclusion of fact by an administrative decision-maker and the absence of any foundation in fact for the fulfilment of the conditions upon which, in law, the existence of a power depends.  In Melbourne Stevedoring, Dixon CJ, Williams, Webb and Fullagar JJ went on:

The inadequacy of the material is not in itself a ground for prohibition.  But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters.  If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.’  (Footnotes omitted.)

52                  Nevertheless, their Honours continued (at [37]):

‘Without further consideration of what was said in Melbourne Stevedoring, the formulation of the criterion which is relied upon by the appellant may be accepted for present purposes.  But, as will appear, much depends upon the particular circumstances disclosed by the written statement required by s 430 of the Act.  In this case, the determination by the tribunal was not irrational or illogical as the appellant contends.’

53                  The ‘criterion’ advanced by the appellants (relying on Gummow J’s remarks in Eshetu) was whether the Tribunal’s determination was ‘irrational, illogical and not based upon findings or inferences of fact supported by logical grounds’.

54                  Kirby J said (at [126] and [127]):

‘As Latham CJ explained in R v Connell; Ex parte Hetton Bellbird Collieries Ltd, on review a court’s inquiry is limited to determining “whether the opinion required by the relevant legislative provision has really been formed”.  Where the decision and the reasons and critical findings of fact that form the basis of that decision are recorded (as was obligatory under the Act in the present case) the tribunal’s reasoning may disclose a misconception about the nature of the fact-finding process required by the Act.  It may then become apparent that the fact-finding has miscarried to a significant degree, in the sense that it does not conform to the requirements, express or implied, in the empowering statute.  In such circumstances it may be concluded that the opinion or satisfaction reached was not the kind of opinion contemplated by the statute.  In each case, the identified pre-condition for the exercise of the power conferred would not be fulfilled.

In the Supreme Court of New South Wales, Spigelman CJ has noted, in an observation with which I agree:

“[W]here a statute … makes provision for an administrative decision in terminology which does not confer an unfettered discretion on the decision-maker, the courts should approach the construction of the statute … with a presumption that the parliament … intended the decision-maker to reach a decision by a process of logical reasoning and a contrary interpretation would require clear and unambiguous words.”’  (Footnotes omitted.)

55                  Then, in SGLB Gummow and Hayne JJ said (at [37] and [38]):

‘… [Section] 65 of the Act provides that the minister is to grant a visa sought by valid application “if satisfied” of various matters.  These include that any criteria for the visa prescribed by the Act are satisfied: s 65(1)(a)(ii).  Section 65 imposes upon the minister an obligation to grant or refuse to grant a visa, rather than a power to be exercised as a discretion.  The satisfaction of the minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a “jurisdictional fact” or criterion upon which the exercise of that authority is conditioned.  The delegate was in the same position as would have been the minister (s 496) and the tribunal exercised all the powers and discretions conferred on the decision-maker: s 415.

The satisfaction of the criterion that the applicant is a non‑citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.  If the decision did display these defects, it will be no answer that the determination was reached in good faith.  To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act.  However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error.’ (Emphasis added;  footnotes omitted.)

56                  It is in this context that their Honours made the statement relied on by the first respondent (at [39]):

‘To return to the first ground identified in the Federal Court, the “no evidence” ground, nothing in the Act made the question of whether or not the respondent suffered from PTSD a precondition to the exercise of jurisdiction.  No question of a “no evidence” ground of jurisdictional error arises.’

57                  Thus it seems to me that the position arrived at in the High Court may be summarized in the following way:

1.                  A ‘no evidence’ attack will only suffice as such if it can be said that there is an actual ‘absence of any foundation in fact for the fulfillment of the conditions upon which, in law, the existence of a power depends’, that is, if there is no evidence to support a finding of a jurisdictional fact.

2.                  Nevertheless, there are constitutional minimum standards of judicial review and the powers of decision-makers such as the Tribunal are not to be exercised capriciously – not ‘according to humour’, but according to law.

3.                  It is a critical legal requirement that the determination should not be able to be characterized as ‘irrational, illogical and not based on findings or inferences of fact supported by logical grounds’.  My own shorthand paraphrase of this is that, in that minimal sense, the determination must be a rational one.

4.                  If that critical legal requirement is not met, there will be jurisdictional error sufficient to warrant the issue of a constitutional writ.

58                  To my mind it is plain that, if an important finding has been made without evidence to support it, that circumstance may be relevant to the question of whether the determination exhibits such rationality.  A fortiori, when a crucial finding to the determination has been made without evidence to support it, there will be a very real question whether, to that extent, the determination is not objectionably arbitrary.

59                  Accordingly, it seems to me that the salient points to determine are first, whether there was any evidence for the Tribunal’s finding in relation to the independent country information; and secondly, if there was no evidence, whether that was simply an error within the Tribunal’s jurisdiction, or whether (a) the Tribunal erred in relation to a ‘jurisdictional fact’, or (b) that lack of evidence points to irrationality in the sense mentioned.

Consideration of the claimed lack of evidence

60                  Read in context, as the relevant passages relied on by the firsts respondent must be, the meaning of the reference to a ‘generally amicable relationship among religions in society’ is clear, and it does not support the first respondent’s submission:

‘Citizens generally are free to practice [sic] the religion of their choice; however, police, who generally are ineffective in upholding law and order, often are slow to assist members of religious minorities who have been victims of crimes.  An increase in crime and violence in the first few months after the October 2001 elections has exacerbated this situation and increased public perceptions of the vulnerability of religious minorities at large.

The generally amicable relationship among religions in society contributed to religious freedom; however, the number of Hindu, Christian, and Buddhist minorities who perceive discrimination from the Muslim majority has increased.’

61                  Similarly, the assertion that the report indicates no attacks on Ahmadis since 1999, and steps taken to redress attacks in 1999, cannot be sustained when the selected words are put back in their context (set out again for convenience):

‘In the past, members of the Ahmadi sect, whom many mainstream Muslims consider heretical, were the target of attacks and harassment.  In 1999 several mosques belonging to the sect were attacked.  In October 1999, a bomb killed six Ahmadis who were attending Friday prayers at their mosque in Jhulna.  The only suspect questioned by police was a fellow Ahmadi who later was released.  No other suspects have been questioned and the case remains unresolved.  In November 1999, Sunni Muslims ransacked an Ahmadi mosque near Natore, in the western part of the country.  In subsequent clashes between Ahmadis and Sunnis, 35 persons were injured. 

Ahmadis regained control of their mosque and filed a criminal case against 30 persons allegedly responsible for the conflict.  That case remains pending.  After a January 1999 attack on an Ahmadi mosque in Kushtia, two police officials were disciplined for failing to discharge their duties in controlling the incident.  Ahmadi leaders report that their mosque remains under the control of local police, and that Ahmadis have been unable to worship since the January 1999 attack.  As of the end of the period covered by this report, Ahmadis remained unable to worship at the mosque in Kushtia.’ (Emphasis added.)

62                  The fact that the 2002 report provides an example of particularly persecutory treatment of the Ahmadis in 1999 and refers to attacks on Ahmadis ‘in the past’ does not carry with it any indication that Ahmadis were, as of 2002 or later, delivered from the risk of such attacks.  It is, indeed, clear that the steps taken to redress the attacks, including questioning a fellow Ahmadi and the disciplining of police for failure to discharge their duties, had not been entirely adequate:  at least one group of Ahmadis remained unable to worship at their mosque.

63                  The first respondent correctly relies on NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (at [11] – [14]) and Applicant S70 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 182, for the proposition that the weight to be given to country information, its interpretation and accuracy are all factual matters with which the Court cannot interfere.  It is also true that, although the line between reviewing a decision for jurisdictional error and reviewing the merits of that decision is a fine one, it must not be crossed.  However, this is not a case concerning allegations of inaccurate information, insufficient weight given to the information, or even the possibility of a different construction of information.  In my view, the report cited by the Tribunal did not require interpretation.  It is clear on its face, and it simply provides no warrant for the Tribunal’s finding that, in relevant respects, the situation in Bangladesh for Ahmadis had improved.

64                  As that report was the only independent country information cited by the Tribunal, it can truly be said that there was no evidence for that finding.  (The Tribunal’s apparent view that the appellant’s brother was reasonably safe says nothing as to any change over time in his or any other Ahmadiyya’s position.)

Consideration of whether the error was one critical to the exercise of the jurisdiction

65                  The appellant relies on Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J, where it was said:

‘If a statutory tribunal is required to act judicially, it must act rationally and reasonably. … When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decisionmaking is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.’

66                  The respondent asserts, correctly in my view, that the principle in Bond cited above is irrelevant:  in Bond the High Court was concerned with jurisdictional error for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth), not for the purpose of remedies available under s 75(v) of the Constitution.  S20, in the passages cited above, seems to support that view (though compare Gleeson CJ’s continued reliance (at [9]) on the above passage from Deane J’s judgment in Bond). 

67                  However, as far as I can see, the Tribunal’s decision that any fear held by the appellant was not well-founded, depends on:

(a)        the assumption that, for reasons which might include fear of persecution (since that was not negatived, as I have sought to demonstrate above), the appellant would only worship discreetly, and

(b)        discrimination extending to persecution against Ahmadis had improved (the fact presently in issue).

68                  I have already held that (a) cannot as a matter of law and of the Tribunal’s jurisdiction support the Tribunal’s decision.  It follows that, if the decision can be supported that can only be because of (b).  That is, (b) was a sine qua non of the Tribunal’s decision.  But (b) was a finding made without any evidence of it. 

69                  Many cases caution against too ready acceptance as a ground for judicial review of defects, even serious defects of fact-finding.  In the context of arbitrariness and illogicality, a recent dictum of Allsop J (Tamberlin J agreeing) in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 (at [136]) is especially in point:

‘Here, the Tribunal did not rely on seeing the witnesses to disbelieve them.  That process of assessment of witnesses can at times necessarily include assessment based on impression and, to that extent, be intuitive, at least in part.  That did not happen here.  A supposed process of reasoning was used to conclude that both these people were not Christians or Catholics.  It was a process, in significant part, that was bereft of supporting material and rational or reasoned foundation, and was inexplicably selective of the oral evidence.  There is much to be said for the proposition that it betrayed so inadequate a dealing with objective material as to amount to an arbitrary or capricious conclusion.  This is not a matter of illogicality or harsh fact finding.  Illogicality of some kind can be seen in the reasoning processes of many decision-makers, administrative and judicial.  Perfect accord with the requirements of logical reasoning is a standard few can achieve in the daily life of decision-making.  Sometimes identification of illogicality is merely no more than understanding how an error was made within the jurisdictional task provided.  Here, it could be said that the flaw was more fundamental.  The foundation of the rejection of the claims was by a supposed process of reasoning which, in significant and central respects, was no process of reasoning at all.  The documents were rejected by assertion largely bereft of any reasoned foundation, as can be seen from a reading of them and the application of a very modest amount of common sense. The selective, unexplained and unreasoned concentration on the so-called unsatisfactory answers on religion and the unreasoned assertion of what flowed from them, ignoring in this process the balance of the answers was not so much illogical, as unreasoned assertion lacking any intellectual foundation.  To assert conclusions of this kind in this way may be seen as not to engage in a reasoning process, but to assert conclusions by a process that is no more than an intuitive, arbitrary or capricious response to the task.’  (Emphasis added.)

70                  In the present case, it would not be fair to label the Tribunal’s entire determination as utterly arbitrary.  In the crucial respects mentioned, however, it does nevertheless seem valid to regard the determination of the Tribunal as ‘irrational, illogical and not based on findings as inferences of fact supported by logical grounds’.  It is not to the point that on the available material, some other determination to the same effect, based on other factual findings and inferences or on other grounds, might have been made.  It therefore seems to me that, on this  score also, jurisdictional error has been established. 

71                  I should not leave this matter without noting also that the state of Full Court authority on the question of illogicality/arbitrariness as a source of jurisdictional error for the purpose of the constitutional writs is somewhat unsatisfactory.  The majority in NADH regarded S20 as having been dealt with in ‘a somewhat cautious manner’ in Minister for Immigration & Multicultural & Indigenous Affairs v W306/1A [2003] FCAFC 208 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263.  With respect, that observation seems to have added force after the observations of Gummow and Hayne JJ in SGLB at [38], a vitally important passage to which the Full Courts in NABE and NADH were apparently not referred.

Conclusion

72                  It follows that the appeal should be allowed and appropriate orders made.

73                  As to costs, in consequence of the appellant’s not having taken in the lower court the points successful on appeal, two hearings rather than one have been necessary to arrive at the proper conclusion.  The appellant should have her costs of the appeal but the costs order below should not be disturbed.

Associate:

Dated:              27 July 2005