FEDERAL COURT OF AUSTRALIA

SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824

MIGRATION – consideration of the tests applicable to determine the circumstances in which reasoning on the part of the Refugee Review Tribunal that is illogical or irrational or based on unwarranted assumptions, constitutes an error of jurisdiction for the purposes of judicial review – consideration of a decision by the Tribunal to have no regard to particular documents going to an event said to be a foundation for a well‑founded fear of persecution for a Convention reason

Decision

Appeal dismissed with costs.

Migration Act 1958 (Cth), s 36, s 65, s 411(1)(c), s 414(2), s 415(1), s 415(2), s 474(1), s 430

SZDTZ v Minister for Immigration and Multicultural Affairs [2006] FMCA 1709

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

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

Craig v South Australia (1995) 184 CLR 163

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

Avon Downs Pty Ltd v FCT (1949) 78 CLR 353

R v Australian Stevedoring Industry Board Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

House v The King (1936) 55 CLR 499

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Attorney‑General (NSW) v Quin (1990) 170 CLR 1

Buck v Bavone (1976) 135 CLR 110

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

SFGB v Minister for Immigration and Multicultural and Indigenous Affairs 77 ALD 402

Minister for Immigration and Multicultural Affairs v Al‑Miahi (2001) 65 ALD 141

Minister for Immigration and Multicultural Affairs v W306/01A [2003] FCAFC 208

W404/01A of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 255

NATC v Minister for Immigration & Multicultural & Indigenous Affairs

NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235

VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286

Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 [26] Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12 [43]

SXFB v Minister for Immigration and Multicultural Affairs [2005] FCAFC 164 [8]

SZDTZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD2362 OF 2006

GREENWOOD J

23 NOVEMBER 2007

brisbane (VIA TELEPHONE-LINK TO sydney) HEARD IN sydney

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant pay the respondents’ costs of the appeal.

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

REASONS FOR JUDGMENT

1                     By this proceeding, appellant SZDTZ appeals from Orders of the Federal Magistrates Court (SZDTZ v Minister for Immigration and Multicultural Affairs [2006] FMCA 1709, per Scarlett FM), made on 13 November 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘Tribunal’) delivered on 14 March 2006 by which the Tribunal affirmed a decision of the Delegate of the Minister to refuse pursuant to s 65 of the Migration Act 1958 (Cth) (‘the Act’) the grant of a protection visa, provided for by s 36 of the Act. 

2                     The appellant contends that Federal Magistrate Scarlett erred by failing to find that a decision of the Tribunal based on reasoning that was ‘irrational and illogical’ and based upon ‘unwarranted assumptions’ was vitiated by jurisdictional error; by finding that the Tribunal was not under a duty ‘to make reasonable enquiries as to the veracity of documents before dismissing them’; by finding that ‘misrepresentation of evidence by the Tribunal did not constitute jurisdictional error’; and by finding that the Tribunal ‘did not apply the wrong test’ in determining the matters before it. 

3                     Although it will be necessary to consider the background facts in some detail having regard to these grounds of appeal, the central matters in issue are these.

4                     The appellant was born on 24 April 1978 in Lebanon and is a citizen of that country.  He arrived in Australia on 27 November 2000 and applied to the Minister for a protection visa on 20 February 2001.  He contended before the Minister’s Delegate and in support of his review applications before the Tribunal that he feared serious harm should he return to Lebanon because of his activities in opposing Syrian foreign labourers, supported by Syrian authorities, taking up, in large numbers, the jobs of ethnic Lebanese in the fruit industry in the region of Becaharre.  In particular, he claimed that he had been threatened by ‘plain clothed’ people in July 2000 telling him to cease agitating against the take‑up of Syrian workers by Lebanese employers; he was threatened a second time in late July 2000; and on 6 August 2000 he was shot.  The appellant claimed he had to then ‘move around’ to avoid detection until leaving Lebanon and arriving in Australia on 27 November 2000.

5                     The Tribunal was unpersuaded by and therefore not satisfied of the claims made by the appellant of a well‑founded fear of persecution for a Convention reason and concluded on the basis of information given by the appellant to the Tribunal in support of the review application; information provided by the appellant at a hearing conducted on 11 January 2006; and material submitted to the Tribunal by the appellant or his advisers on 7 December 2005, 21 December 2005 and 12 January 2006, that the appellant’s claims were not credible and that his evidence in support of the claims was ‘implausible, contradictory, internally inconsistent and moreover, inconsistent with the independent evidence’.  The Tribunal concluded that it could not be satisfied that the applicant had been ‘truthful in his claims and evidence’ and had failed to be truthful about aspects of his evidence given at the hearing.  The Tribunal concluded that the applicant had ‘greatly exaggerated’ the treatment he faced by Syrian authorities.  The Tribunal addressed the appellant’s evidence in relation to issues going to his place of residence, his employment and his activities with a labour organisation he claimed to have established, and concluded in these terms:

The Tribunal has found the applicant to be lacking in credibility with regard to his residence, his employment, and his activities with the labour organisation.  The Tribunal has further found that his claims are in direct contradiction to the independent evidence.  The Tribunal has found the applicant to have been untruthful to the Tribunal and gives no weight to his claims.  In light of the applicant’s lack of reliability as a witness, it cannot rely on the documents submitted by him.

Considering the applicant’s mendacity on not only the essential elements of his claim, but other aspects of his claims discussed above, as well as the numerous inconsistencies in his claims and evidence, and the inconsistencies with the independent evidence, the Tribunal finds that the claims of harm, and threats of harm, by Syrian authorities to be a fabrication.  Given the significant adverse findings on credibility in relation to the applicant, the Tribunal cannot be satisfied that the applicant has a real chance of being persecuted for a Convention reason by the Syrian authorities in Lebanon in the foreseeable future, and is therefore not satisfied that the applicant’s fear of persecution for a Convention reason is well‑founded.

[The emphasis in bold is added.  The underlining is from the original findings.]

6                     In simple terms, the Tribunal concluded that the applicant was untruthful, lacked credibility, had fabricated evidence and, as a matter of emphasis, was mendacious, that is, a person who does not tell the truth. 

7                     As to the question of the shooting, the Tribunal concluded:

Whilst the Tribunal is satisfied that the applicant may have sustained a gunshot wound in Lebanon in 2000, it cannot be satisfied about who was responsible for the shooting – or why [emphasis of the Tribunal].

8                     The appellant says these findings are irrational, illogical and based on unwarranted assumptions.  The expression of this ground of attack upon the Tribunal’s reasoning is put this way.  The appellant claimed that he had been threatened and shot in the head by Syrian agents because of his opposition to Syrian workers taking up employment in Lebanon and displacing Lebanese workers.  In support of his claim of this event, he provided the Tribunal with the following information:  sworn evidence of the injury to a first Tribunal hearing; a document marked ‘Croix Rouge Libanaise, Centre de Becharre’ (the Red Cross); three brain scans, one of which from the Sydney Imaging Group concluded, ‘There is still evidence of a bullet lodged in the soft tissue of his scalp’; written claims of the event to the first Tribunal’s review of the Delegate’s decision; sworn evidence to the second Tribunal; a letter from a Priest of the Christian Maronite Archdiocese, Youssef Tawk, dated 2 December 2005 asserting, based on Priest Tawk’s knowledge of the appellant’s prior experience in Lebanon, that his return would ‘put him in great danger’; a letter from Mr Farid Ishek Habib, a member of Parliament, declaring that the appellant was ‘shot at by the Syrian army’ at the village of ‘Bcherri … because he belonged to a certain group’ and that ‘today [the appellant] is still subject to danger if he returns to Lebanon as a result of that incident’; a further letter from the Lebanese Red Cross describing the condition of the appellant on 6 August 2000 when he arrived at the Red Cross Centre ‘with a shot in the head … inflicted by the Syrian forces that were located in the area’. 

9                     The appellant contends that this evidence supports, on the balance of probabilities, a conclusion that the appellant was shot and the shooting was carried out by Syrian agents.  The appellant says the Tribunal’s finding that he ‘may have sustained a gunshot wound’ but that the Tribunal ‘cannot be satisfied about who was responsible for the shooting – or why’ is based on a finding that all of the appellant’s evidence as to the shooting, said to influence the appellant’s contended well‑founded fear of persecution should he return to Lebanon, by reason of his political opposition to Syrian authorities operating in southern Lebanon in support of Syrian nationals, is to be rejected because the appellant’s evidence is implausible, contradictory, internally inconsistent and inconsistent with independent evidence.

10                  The appellant says that an analysis of the evidence said to support each conclusion reveals that there is ‘no probative evidence’ to support the Tribunal’s assertion that the appellant’s evidence was implausible; there is nothing ‘contradictory’ or ‘internally inconsistent’ in the appellant’s evidence; and, there is no demonstrated inconsistency between the independent information before the Tribunal and the evidence of the appellant.  The appellant says that it follows that the rejection of the appellant’s evidence on these grounds, is not supported by rational or logical reasoning and reflects findings based, in part, on assumptions not properly open to the Tribunal.  Such errors of reasoning which form the basis of the findings resulting in a determination that the Tribunal cannot be ‘satisfied’ of the relevant matters, are said to be jurisdictional errors.

11                  In written submissions, the appellant contends that the Tribunal failed to take account of the material described at [8] of these reasons said to be relevant to the question of whether the Tribunal might be satisfied that the appellant held a well‑founded fear of serious harm should he return to Lebanon, expressly on the basis that the appellant’s ‘lack of credibility as a witness’ meant ‘it [the Tribunal] cannot rely upon the documents submitted by him’.  Since the finding on credibility is, it is said, misconceived by reason of irrationality and illogicality of reasoning, the Tribunal’s failure to have regard to the relevant documents means the Tribunal has failed to exercise the duty of review thus giving rise to jurisdictional error.

12                  The appellant also says the Tribunal had regard to and relied upon material consisting, in part, of information from a ‘Lebanon Voters – info’ website and information consisting of a flawed analysis by the first Tribunal in its reasons of data, drawn from that website, so as to conclude that inconsistencies existed between the appellant’s evidence and the identified information.  Reliance, in error, upon the identified information is said to be a jurisdictional error. 

13                  Lastly, the appellant says the Tribunal asked itself the wrong question by asking whether the appellant’s fear of persecution was or could be well‑founded in circumstances where the appellant might behaviourally modify his conduct by returning, not to Becaharre in Lebanon where historical concerns of persecution had arisen (if well placed) but by returning to another place or city within Lebanon where such concerns would not be manifest. 

The Statutory and Legal Framework

14                  A description of the reasoning of the Tribunal as irrational, illogical or unreasonable may simply be an emphatic way of expressing disagreement with the reasoning, conclusions, findings made and a determination reached by the Tribunal (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 [40] per Gleason CJ and McHugh J; Re Minister for Immigration and Multicultural Affairs Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 61 [5], per Gleason CJ).  If so, the criticism may simply be a vehicle for attempting to contest adverse findings made by the Tribunal within the scope of the jurisdiction conferred upon it.  If the criticism is to go beyond such a challenge, what is required is some precision in identifying the legal consequence of irrational or illogical reasoning and the legal principle to be invoked that attracts that consequence (S20/2002 per Gleason CJ [5]).  That task requires identifying and characterising the suggested error and relating it to ‘the legal rubric under which a decision is challenged’ (S20/2002 per Gleason CJ [9]). 

15                  Here, the Tribunal has a statutory duty to review a decision (s 414(2)) to refuse to grant a protection visa (s 411(1)(c)) and is conferred with all the powers and discretions conferred by the Act upon the initial decision‑maker (s 415(1)) and a power to affirm, vary or set aside the decision and substitute a new decision (s 415(2)).  In discharging that duty and exercising those powers, the Tribunal must determine whether it is satisfied or not that the appellant is a person to whom Australia has protection obligations under the Refugees’ Convention as amended by the Refugees’ Protocol (s 36(2)(a); s 65(1)(a)(ii) and s 65(1)(b)).  If not so satisfied, the Tribunal must affirm the Delegate’s decision (s 65(1)(b) and s 415(2)(a)).  A protection obligation arises in favour of a non‑citizen in Australia who owing to a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.  That inquiry requires the Tribunal to reach a state of satisfaction about the elements attracting that obligation in each application before it and consider, among other things, whether the contended reason for the persecution is the essential and significant reason; whether the persecution involves ‘serious harm’ and whether the persecution involves systematic and discriminatory conduct.  Serious harm includes a threat to the person’s life or liberty; and significant physical harassment (s 91R).  A decision of the Tribunal is a privative clause decision and is thus final and conclusive (s 474(1)) unless the Tribunal has failed by reason of jurisdictional error to make a decision under the Act for the purposes of s 474 of the Act (Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476) which ‘must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of jurisdiction conferred by the Act’ (Plaintiff S157/2002 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ [76]).  The quality, nature and content of the decision will be found in the reasons of the decision‑maker.  Section 430 of the Act requires the Tribunal in making a decision on review to prepare a written statement that:

(a)       sets out the decision of the Tribunal on the review; and

(b)               sets out the reasons for the decision; and

(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. 

16                  The appellant sought before the Federal Magistrates Court a declaration that the decision of the Tribunal was made in error of jurisdiction and an order quashing the decision in the exercise of that Court’s jurisdiction under s 476(1) of the Act which confers upon the Federal Magistrates Court the same original jurisdiction in relation to migration decisions as the High Court exercises under s 75(v) of the Constitution. 

17                  What legal principle or legal rubric might be invoked that brings about the legal consequence that the decision of the Tribunal is to be quashed on the ground of demonstrated jurisdictional error expressed in the description ‘irrationality or illogicality of reasoning’, attracting the constitutional writs.  In Craig v South Australia (1995) 184 CLR 163 at 179, Brennan, Deane, Toohey, Gaudron and McHugh JJ stated the general principles guiding the exercise of the supervisory jurisdiction over administrative tribunals in these terms:

At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law.  That point was made by Lord Diplock In re Racal Communications Ltd:

‘Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision‑making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so.’

The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. 

If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. 

18                  In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82], McHugh, Gummow and Hayne JJ had regard to those observations in Craig and further explained the legal principle of ‘jurisdictional error’, in these terms:

It is necessary, however, to understand what is meant by ‘jurisdictional error’ under the general law and the consequences that follow from a decision‑maker making such an error.

‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive.  Those different kinds of error may well overlap.  The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision‑maker both asking the wrong question and ignoring relevant material.  What is important, however, is that identifying a wrong issue, asking the wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision‑maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision‑maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. 

                                                                                                            [emphasis added]

19                  These considerations are in similar terms to those identified by Dixon J in Avon Downs Pty Ltd v FCT (1949) 78 CLR 353 at 360.  His Honour also noted that the conclusion reached by an administrative decision‑maker may on a full consideration of the material before him be found to be capable of explanation only on the basis of some ‘misconception’; if the result appears to be unreasonable on the supposition that the decision‑maker addressed the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, it may be that a ‘proper inference’ is open that the supposition is false. 

20                  In considering those principles, Gleason CJ in S20/2002 observed:

To describe as irrational a conclusion that a decision‑maker is not satisfied of a matter of fact, or a state of affairs, because  the decision‑maker does not believe the person seeking to create the state of satisfaction, or to describe the process of reasoning leading to such a conclusion as illogical, on judicial review of an administrative decision, might mean no more than that, on the material before the decision‑maker, the court would have reached the required state of satisfaction.  Ordinarily, however, it will be necessary to go further, as in the respects mentioned by Dixon J [Avon Downs].

If, in the particular context, it is material to consider whether there has been an error of law, then it will not suffice to establish some faulty inference of fact.  On the other hand, where there is a duty to act judicially, a power must be exercised ‘according to law, and not humour’ and irrationality of the kind described by Deane J in Australian Broadcasting Tribunal v Bond may involve non‑compliance with the duty. 

Furthermore, where ‘the true and only reasonable conclusion contradicts [a] determination’ then the determination may be shown to involve legal error.  It is often unhelpful to discuss, in the abstract, the legal consequences of irrationality, or illogicality or unreasonableness of some degree. 

21                  At [34] – [37] of S20/2002, McHugh and Gummow JJ noted that the appellant in that case submitted that jurisdictional error arose in circumstances where the Tribunal’s determination ‘that the condition upon which depended the power (or duty) to grant him a protection visa was not met, was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds’.  Their Honours considered whether that contention was made out.  That contention of a criterion of jurisdictional error was said to derive from Eshetu (supra).  Their Honours observed that in Eshetu it was pointed out that a stricter view should be taken of what must be shown to make out jurisdictional error where the statutory provision ‘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’ ([146] Eshetu).  Their Honours noted the distinction between insufficiency of evidence to support a conclusion of fact by the decision‑maker and an absence of any foundation in fact for the fulfilment of the conditions upon which the power to decide, depends.  Their Honours noted these remarks of Dixon CJ, Williams, Webb and Fullagar. JJ in R v Australian Stevedoring Industry Board Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 120:

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. 

                                                                                                            [emphasis added]

22                  Their Honours, McHugh and Gummow JJ at [37] S20/2002 said:

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. 

23                  Although the formulation of the criterion was accepted for the purposes of analysis of the argument, their Honours concluded that the determination by the Tribunal was not irrational or illogical as it was open to the Tribunal to conclude that the appellant had lied without, at an earlier stage of the Tribunal’s analysis, having weighed the alleged corroborative ‘evidence’ given by a particular witness notwithstanding that to do so would have been preferred.  At [52], their Honours concluded that ‘the decision of the Tribunal has not been shown to have been, in the sense propounded by the appellant, illogical, irrational, or lacking a basis in findings or inferences of fact supported on logical grounds’. 

24                  This notion of degrees of strictness of that which must be shown to make out jurisdictional error is consistent with the observations of Gleason CJ in Plaintiff S157/2002 at 485 [13] where his Honour noted references in the authorities to the concept of ‘manifest’ defect in jurisdiction and ‘degrees of error’ expressed in terms such as ‘palpably misused [an] advantage’, ‘glaringly improbable’, ‘inconsistent with facts incontrovertibly established’ and ‘plainly unjust’ echoing the familiar remarks in House v The King (1936) 55 CLR 499.  His Honour said this:

Unless adjectives such as ‘palpable’, ‘incontrovertible’, ‘plain’, or ‘manifest’ are used only for rhetorical effect, then in the context of review of decision‑making, whether judicial or administrative, they convey an idea that there are degrees of strictness of scrutiny to which decisions may be subjected.  Such an idea is influential in ordinary appellate judicial review, and it is hardly surprising to see it engaged in the related area of judicial review of administrative action. 

25                  The emphasis reflected in those adjectives is consistent with the ‘strict’ (Australian Administrative Law, Groves and Lee, Cambridge University Press, 2007, pp 219, 220) view of the ‘no evidence’ ground of challenge to a factual finding on the basis of illogical or irrational reasoning (note the authorities on the common law reviewed by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356‑357), that is, the need to demonstrate no material before the decision‑maker which tends logically to show the existence or non‑existence of facts or to show the likelihood or not of some future event occurring, relevant to the state of satisfaction to be formed.  If there is some evidence (perhaps slight) to support a finding, a Court exercising judicial review ought not to interfere with the decision‑maker’s assessment of the material as the limits upon the jurisdiction of the court exercising federal jurisdiction are well known (Attorney‑General (NSW) v Quin (1990) 170 CLR 1 at 35‑36 per Brennan J).  Some facts, such as a jurisdictional fact, however, are not facts in the ordinary meaning of that term (Eshetu, 651, [130] per Gummow J) and where a decision‑maker is required to be satisfied of the existence of specified matters, the decision‑maker must act in good faith, must not misdirect itself, fail to consider relevant matters or take into account irrelevant matters.  However:

… Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it.  However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. 

(Buck v Bavone (1976) 135 CLR 110 at 118‑119)

26                  In Eshetu at [137], Gummow J observed that those observations from Brennan J were consistent with the notion that:

‘… where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision‑maker could have arrived at the decision in question.  It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criteria has been met, was all one way’. 

27                  His Honour further observed in Eshetu at [145]:

‘Where the issue whether a statutory power was enlivened turns upon the further question of whether the requisite satisfaction of the decision‑maker was arrived at reasonably … I would prefer the scrutiny of the written statement provided under s 430 [of the Migration Act] by a criterion of ‘reasonableness review’ … It 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 (Bond at 366; Canada (Director of Investigation and Research) v Southam Inc. [1997] 1 SCR 748 at 776‑777)’.  

[emphasis added]

28                  Their Honours Gummow and Hayne JJ summed up these considerations in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 20 [37] and [38] in these terms:

[37]    … 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 (S496) and the tribunal exercised all the powers and discretions conferred on the decision‑maker: S415.

[38]    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 S65 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. 

29                  It therefore seems to me that in exercising judicial review, an examination might properly occur to determine whether the decision‑maker in reaching a state of satisfaction in discharge of the review function and in making his or her determination, displayed, in the s 430 reasons, defects of illogical or irrational reasoning upon which the determination rests and whether the determination is based on findings or inferences not supported by rational grounds, subject to this.  ‘Inadequacy’ in the material is, by itself, not enough (SGLB).  Inadequacy may, however, be a circumstance which supports an inference that the Tribunal misconceived the test or was not satisfied in respect of the correct test (S20/2002). 

30                  In SFGB v Minister for Immigration and Multicultural and Indigenous Affairs 77 ALD 402, Mansfield, Selway and Bennett JJ quashed a determination of the Tribunal based upon a finding ‘unsupported by any evidence’.  In Minister for Immigration and Multicultural Affairs v Al‑Miahi (2001) 65 ALD 141, the Full Court, in reliance upon Bond said there is no place for judicial review in simply demonstrating ‘faulty logic’ as ‘want of logic is not synonymous with error of law.  So long as the particular inference is reasonably open even if that inference appears to have been drawn as a result of illogical reasoning’, there is no error of law.  That view was adopted by French, Hill and Marshall JJ in Minister for Immigration and Multicultural Affairs v W306/01A [2003] FCAFC 208.  In W404/01A of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 255, French, Lee and Carr JJ concluded that even if the reasoning of the Tribunal ‘… were illogical, the authorities show that this is not, in itself, a ground of review, though it may on occasion manifest other reviewable error’ [35].  In NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 [25], Heerey, Sundberg and Crennan JJ rejected the suggestion that the Tribunal’s lack of satisfaction rested upon illogical reasoning and observed, in reliance upon NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 [30], ‘… in any event, want of logic does not itself suffice to constitute an error of law:’ [25]. In VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286, Kiefel, Marshall and Downes JJ, also in reliance upon NACB, agreed that, ‘the current state of the law is that want of logic in the reasons of the RRT is not an available ground of review’.  That statement of principle did not incorporate the qualification ‘in itself’. 

31                  The central matter is this. 

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

The Approach adopted by the Tribunal

33                  Apart from the background matters previously mentioned, the appellant gave the following evidence to the Tribunal. 

34                  The appellant is a Maronite Christian, attended school in Becaharre and attended two years of TAFE training in Beirut where he lived with his sister.  After completing studies, the appellant worked at a family owned restaurant in Becaharre and also at a place called the ‘Procto Centre’, a medical centre in Beirut where he undertook part time (four days per week, 4 to 5 hours each day) administrative work from 1997 to November 2000.  On the days he worked for the Procto Centre, he lived in Beirut with his sister but otherwise he returned to Becaharre.  He agreed that these were the two places where he lived – that is ate, slept and resided. 

35                  The appellant said illegal migrant workers from Syria (100,000) supported by Syrian intelligence personnel have displaced young Lebanese workers in the labour market causing significant unemployment among young people in Becaharre.  The appellant and another man rented an office in Becaharre to organise meetings to resist illegal migrant labour; made lists of unemployed workers; established a phone line for employers to contact people on the list; and had 12‑20 people running the office.  The appellant spent time there (when in Becaharre) when not working at the medical centre in Beirut.

36                  The appellant said he was shot in the head as a result of this work as Syrian workers lost employment.  The appellant also said Syrian intelligence personnel came to the office; identified themselves and wanted the office closed.  The Tribunal noted independent evidence from the Immigration and Refugee Board of Canada from 1995 suggesting that Lebanese internal security forces would most likely seek out those persons opposing a Syrian presence in Lebanon although according to the McGill Institute of Islamic Studies in Montreal, Christian opponents of the Syrian presence are free to voice opposition and are not harassed unless engaged in illegal activity or found to be cooperating with Israel.  The appellant disagreed and said Christians are harassed.  The appellant told the Tribunal that he had not been involved, since arriving in Australia, in any political campaign to agitate against the Syrian presence in Lebanon.  Although the shooting was six years ago, the intelligence people remain in place and young Lebanese returning to Lebanon have been tortured.  Even if he does not go back to Becaharre, he remains in danger; his family is prominent. 

37                  The Tribunal noted Department of Foreign Affairs and Trade (‘DFAT’) Country Information Report of 23 February 1996 stating that security checks at Beirut airport are almost certain to identify for detention anyone wanted by State authorities and that, ‘It is unlikely that persons wanted in connection with grave offences could circumvent security procedures’.  The Tribunal also noted a further DEFAT report of 13 January 2003 that, ‘It remains highly implausible that persons wanted by the Lebanese judicial authorities could depart Beirut International Airport with inside assistance’.  The appellant said that he was assisted by a cousin employed in ‘general security’ to leave Lebanon through the Beirut airport.

38                  As to the office activities, the appellant stopped engaging in his activities in August 2000.  The office was set up with a person who became a solicitor; the appellant has not been in contact with him since leaving Beirut; the appellant lost contact with him in late 2002 and although that individual has received threats, he has had no problems ‘because he is a solicitor’, ‘came from a poor family’ and the person, because he is a solicitor, ‘knew how to talk to them’.

39                  As to the documents, the appellant said this:  Mr Habib is a member of parliament and a political activist who supported the appellant.  Mr Habib is a friend of the appellant’s family and a friend of his older brothers.  Mr Habib is very close to the family and the appellant’s older brothers.  As to Priest Tawk, the appellant made contact with Priest Tawk at church services.  Priest Tawk is well known to the appellant’s father through activities in the church.

40                  The appellant provided the Tribunal with a letter from Danny Fakhri of the Lebanese Red Cross in these terms:

I, Danny Hanna Fakhri … former head of Bcherri Red Cross certify that

[SZDTZ]

Born in Beherri on 24.04.1978 arrived at the Red Cross Centre on 6 August 2000 with a shot in the head while he was performing his humanitarian duties inflicted by the Syrian forces that were located in the area.  Because of the absence of medical equipment necessary for treatment at the Centre and because there was no other hospital in Beherri, he was transferred by an ambulance belonging to a Lebanese Red Cross to outside Beherri equipped with the necessary equipment where he was treated at once.

Accordingly, I have given you a statement before written in the English language and signed by me in the Arabic language.’

41                  The letter provided a telephone number for any further contact. 

42                  The appellant tended a letter by Dr Lelia Tawk signed in the Arabic language but translated in these terms:

The Management of Beherri Public hospital certifies that the hospital was opened on 21.11.2004 in the presence of the Lebanese Minister for Health and a huge number of VIPs.

The Management also confirms that it is the first health centre in Beherri that is equipped with the equipment and staff to admit patients and the injured after a long neglect.  There was a centre for the Lebanese Red Cross whose role was to transfer patients in ambulances to neighbouring centres and it was not equipped with the necessary equipments.

43                  That letter provided telephone and facsimile contact details for any further information.  As to the letter from Danny Fakhri, the appellant told the Tribunal that he knew him because he lived in the village. 

44                  The appellant told the Tribunal that after being shot on 6 August 2000, the appellant had had no further contact with Syrian authorities.  The appellant said that he did not return to the family home in Beherri and he was staying in different places in Beirut.  The Tribunal noted in the course of the hearing that this information seemed inconsistent with earlier evidence in the hearing that he had resided with his sister in Beirut or in the family home at Beherri until he left Lebanon in November 2000.  The Tribunal asked the appellant to explain the inconsistency between continuous residence at the two identified places as compared with later evidence that after August 2000 the appellant did not return to the family home and stayed in different places in Beirut.  In evidence the appellant said that he lived in the two continuous places until the event in August 2000 and after the event he moved one week on, one week off between a friend’s house and a cousin’s house. 

45                  The Tribunal made reference to a website:  Lebanon:votersinfo - (web address) accessed on 28 November 2002 in these terms:

Becharri [variously described] is an overwhelmingly Maronite Christian area and the birth place of many leaders of the Lebanese Forces (LF) including imprisoned former leader Samir Gaegea.  The electoral lists for 2000 show that in the Basharri sub-division 40,229 of 41,970 registered voters were Maronites.  Whilst there are other minority groups in Basharri they are of a negligible proportion and no evidence could be found in the sources consulted of overt tension between these groups.

46                  The Tribunal invited the appellant to comment on the apparent inconsistency between those observations and his evidence that Becaharre was ‘overrun with foreign workers’.  The appellant said Syrian labourers are seasonal during fruit picking and enter Lebanon illegally.  The appellant’s adviser noted that the website report referred only to residents.

47                  As to likely harm or danger should he return, the Tribunal asked the appellant what he thinks would happen to him if he was to return to Lebanon and the appellant said that he could not presume what would happen but information from friends suggest that his life would be in danger if he returned.  The appellant confirmed that the activities identified by him were the only activities of an anti‑Syrian character. 

48                  The Tribunal referred to submissions from the appellant’s adviser previously identified in these reasons and noted, in particular, the comments concerning the website making reference to registered electors and the curious fact that the independent information referred to by the Tribunal from the website contained only the registered voter details and the remainder of the quoted information was the opinion of the earlier Tribunal.  As to the independent country information drawn from 1995 and 1996, the appellant’s adviser said it did not represent the position in November 2000 when the appellant left Lebanon.

49                  As to the information from DFAT of 13 January 2003, the appellant’s adviser noted that the appellant was not sought by Lebanese judicial authorities or related Lebanese authorities and the appellant’s fear of persecution were from Syrian forces and agents.  As to the knowledge of the appellant by the authors of the various letters, the appellant’s adviser said that such a matter was unexceptional and had they not known of the appellant, they would not be able to express an opinion.  As to the apparent inconsistency between the continuous two places of residence and subsequent movement in the period between August and November 2000 after the shooting, the appellant’s adviser said that those movements did not, in the ordinary sense of the word, amount to ‘residing’ in a place and according to the transcript of evidence, the appellant’s response to the earlier question suggested the places of ‘permanent residence’ prior to the incident and thus no inconsistency arose.  As to the appellant’s belief of serious harm should he return, the appellant’s adviser responded to the Tribunal that the activities of the appellant were of ‘sufficient interest’ to result in his being shot which provided the foundation for a well‑founded fear of serious harm. 

The Determination, Reasoning and Findings

50                  As to the gunshot wound and incident, the Tribunal could not be satisfied who was responsible or why it occurred.  The Tribunal could not be satisfied that the appellant’s claims of difficulties with Syrian authorities were credible.  The Tribunal found the appellant’s claims ‘in this regard’ to be implausible, contradictory, internally inconsistent and inconsistent with the independent evidence.  The Tribunal identified what it perceived to be a ‘range of inconsistencies’ between the appellant’s written claims and his hearing before the Tribunal; and in the evidence or claims articulated during the course of the hearing.  Having regard to those two matters and a third, ‘the inherent implausibility in his claims and evidence’, the Tribunal could not be satisfied of two things.  First, that the appellant had been truthful in making and evidencing his claims; and, secondly, that he has ‘any claim to have a well‑founded fear of persecution for a Convention reason’. 

51                  The first inconsistency was initial evidence at the hearing that the appellant resided at two locations in Lebanon both connected with his family:  his sister’s house in Beirut and the family home in Becaharre, and later evidence in the course of the hearing that after the shooting in August 2000 he was staying ‘in different places in Beirut’ and could not ‘stay in a fixed place’.  The Tribunal weighed that evidence in conjunction with evidence of the appellant that after the shooting he had no further contact with Syrian authorities and left Lebanon in November 2000 (three months later).  Since the appellant accepted that Syrian authorities did not ‘come after him’, the Tribunal thought an inference was open that those Syrian intelligence authorities had no continuing interest in him.  The explanation for that apparent lack of interest was that after the shooting, the appellant moved around and inferentially, Syrian authorities would have had difficulty finding him.  That later evidence in the course of the hearing was seen by the Tribunal as a change in position to explain an anomaly perceived by the Tribunal of no apparent threat of harm between August and November 2000.  That led the Tribunal to conclude that ‘the applicant has not been truthful’ about his whereabouts in Lebanon.

52                  That conclusion was open to the Tribunal.

53                  The second matter concerned the appellant’s employment.  The appellant’s evidence was that he worked at the Procto medical centre in Beirut from Monday to Thursday for four to five hours a day from 1997 until he left Lebanon in November 2000 and when in Becaharre he would attend at the employment office from 4pm to 8pm three days each week.  Since that regular pattern of employment had endured from 1997 to November 2000, the Tribunal reasoned that Syrian authorities could have located him had they had any interest in him.  Since they did not, it suggested to the Tribunal that there was no interest.  That suggested to the Tribunal that the claim of Syrian ‘threat’ was not credible.

54                  That conclusion was open to the Tribunal. 

55                  The third matter concerned the evidence of the appellant’s agitation against Syrian migrant labour in Lebanon and the claim of his shooting for that reason.  The Tribunal said it had ‘grave credibility issues’ arising from ‘this claim – particularly the contradiction between his claims and the independent evidence’.  That grave concern went to four things.  First, claims were made that attacks continued to be made on freedom of expression and association yet no claim was made nor was evidence put that the appellant was stopped from ‘establishing this organisation’. 

56                  Secondly, the appellant did not claim nor was evidence put to the Tribunal that he or the organisation was ‘actually prevented’ from carrying out their various activities.  The evidence was that the appellant was threatened to close, by ‘plain clothed’ Syrian authorities.  The Tribunal looked to the evidence of the appellant of his activities of linking up Lebanese employers with Lebanese workers and concluded:

The appellant has not been involved in any activities which were illegal nor of a violent nature.  The Tribunal finds the claims of harm by Syrian authorities not to be commensurate with the non‑violent, innocuous activities of the applicant.

57                  Thirdly, the Tribunal noted the appellant’s evidence that he had a close personal relationship with the other person involved in setting up the employment organisation yet the appellant is no longer in contact with him; does not know what he is now doing nor where he now lives.  The Tribunal found that anomalous in light of the claimed closeness.  Further, the Tribunal noted that although the appellant’s friend and colleague was involved in precisely the same activities, his friend had had no difficulties with Syrian authorities because ‘he was a solicitor’.  The Tribunal found that explanation to be ‘absurd’.  The Tribunal reasoned that if the colleague was engaged in precisely the same activities, he too would face harm yet none was faced ‘because he was a lawyer’. 

58                  Although a Court might decide some of those matters differently, those conclusions were open to the Tribunal.

59                  The final or fourth aspect of the Tribunal’s assessment of the employment agitation by the appellant, was this.  The appellant has been in Australia for six years; has not been involved in any activities critical of Syrian presence in Lebanon nor activities agitating for the removal of Syrian migrant workers from Lebanon.  Those circumstances suggested to the Tribunal that the appellant has no ‘ongoing’ interest in the issue and, looking forward, would be unlikely to fear serious harm from Syrian authorities should he return to Lebanon. 

60                  It seems to me that such a matter properly informs the decision‑maker as to whether the Tribunal might be satisfied of a well‑founded fear of persecution for a Convention reason. 

61                  The fourth topic addressed by the Tribunal going to demonstrated inconsistency and implausibility is the evidence of the appellant’s departure from Lebanon.  The Tribunal noted that the appellant departed from Lebanon on his own passport at a time when he claimed he was a person of interest to Syrian authorities.  The Tribunal had regard to DFAT Country Information of 23 February 1996 concerning airport checks by Lebanese and Syrian authorities and the probability of detection and detention of persons of interest.  The Tribunal reasoned that persons of interest at the time of departure of the appellant (November 2000) would, most likely, have been detained and because the appellant was not detected and detained, an inference is open that he was of no interest to the Syrian authorities.  The Tribunal considered the appellant’s evidence that he was able to depart Lebanon with the assistance of his cousin thus avoiding detection, and the DFAT Report of 13 January 2003 of ‘high implausibility’ that persons sought by ‘Lebanese Judicial authorities (inter alia) could depart Beirut International Airport with inside assistance’.  The appellant contended he was of interest to Syrian authorities, not Lebanese authorities, and as to the Country Information Report of 23 February 1996, it was said to be out of date, irrelevant and addressed security checks concerning persons sought in connection with ‘grave offences’ and the appellant was not so sought.  The Tribunal noted those contentions but also noted evidence that Syrian and Lebanese authorities cooperate closely and controls at Beirut airport are ‘tight’.  Notwithstanding that the first DFAT report was dated 1996, it was open to the Tribunal to inform itself by that document on the topic it addressed.  Similarly, it was open to the Tribunal to have regard to the DFAT report of 13 January 2003 going to the probability of persons of interest to State authorities departing Lebanon at Beirut International Airport through ‘inside assistance’. 

62                  It was open to the Tribunal to consider those matters in drawing an inference that the appellant may not have been of interest to Syrian authorities thus informing, in part, whether the Tribunal could be satisfied of the appellant’s claim of a well‑founded fear of persecution for a Convention reason. 

63                  The final matter addressed by the Tribunal was the treatment of the documents ([8] of these reasons) put to the Tribunal.  The Tribunal accepted as a fact that the appellant had been shot.  The Tribunal was not satisfied as to who was responsible for the shooting or why it occurred.  The approach adopted by the Tribunal and therefore its reasoning was to test each element of the underlying substratum of fact of the appellant’s claims and form a view about whether it could be satisfied about any or all of those contentions.  Because the Tribunal was not satisfied the appellant’s contentions on the various matters discussed in these reasons were true and further, that the appellant had greatly exaggerated particular matters and had fabricated others, no reference to documents from the Red Cross or third parties could be redemptive of the poisoned well of credibility (S20/2002 [49] per McHugh and Gummow JJ) as to how the appellant came to be shot, by whom or for what reason.  The documents were thus disregarded by the Tribunal in reaching the decision‑maker’s state of satisfaction of the relevant matters.  Although a Court might weigh those documents in the balance or approach the sequence of consideration of the content and authority of the documents in a different way or at an earlier point in the continuum of assessment, there was nothing irrational, illogical or unreasonable in the Tribunal considering each factual element of the appellant’s contentions; determining whether the appellant could be believed and then turning to whether the documents might inform the decision‑maker’s capacity to be satisfied as to the reasons for the shooting, the participants engaged in the event and the relevant circumstances, so as to determine whether the Tribunal could be satisfied that the appellant held a well‑founded fear of persecution for a Convention reason.  The Tribunal elected not to have regard to those documents in light of its earlier conclusions. 

64                  The appellant contends that the Tribunal was under a duty to make enquiries about the matters contained in the documents.  However, the Tribunal was not required to make enquiries into those documents or of the authors of them (Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 [26]; Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12 [43]; SXFB v Minister for Immigration and Multicultural Affairs [2005] FCAFC 164 [8]).

65                  The Tribunal did not rely upon the matter described at [45] of these reasons, in its reasoning on credit. 

66                  The appellant’s grounds of challenge based upon irrationality, illogicality and the making of unwarranted assumptions by the Tribunal and the grounds of failing to take account of relevant material and taking account of irrelevant material, therefore fail. 

67                  In addition, there is no substance in the contention that the Tribunal failed to ask itself the correct question or asked itself a wrong question. 

68                  For these reasons, there is no error on the part of the Federal Magistrates Court and the appeal must necessarily be dismissed with costs. 

Associate:

Dated:         23 December 2007