FEDERAL COURT OF AUSTRALIA

SZNNQ v Minister for Immigration and Citizenship [2010] FCA 376

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The Appellant is to pay the First Respondent’s costs of and incidental to the appeal to be taxed if not agreed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     The Appellant is a citizen of the Republic of Uganda. She came to Australia in July 2008 for the avowed purpose of attending the World Youth Day event which was held in Sydney in that month. On 15 August 2008, while still in Australia, she lodged with the Department of Immigration and Citizenship an application under the Migration Act 1958 (Cth) (Migration Act) for that class of visa termed a Protection Visa.  On 12 November 2008 a delegate of the Minister for Immigration and Citizenship (the Minister) decided to refuse that visa application. The Minister is the only active respondent party to this appeal.

2                     The Appellant sought the review of the Ministerial delegate’s refusal decision by the Refugee Review Tribunal (the Tribunal). On 23 March 2009 the Tribunal decided to affirm the Ministerial delegate’s decision.

3                     Thereafter, the Appellant applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision. On 23 November 2009 that application was dismissed by the Federal Magistrates Court. The Appellant has now appealed to this Court against that dismissal order.

4                     There are two grounds of appeal. They are that:

(a)        the Court erred in finding that the decision of [the Tribunal] was not affected by apprehended bias; and

(b)        the Court erred in finding that the Tribunal’s decision was not based on reasoning that was irrational, illogical and based on unwarranted assumption [sic].

The grounds of appeal replicate the grounds of review which were advanced in the judicial review proceedings before the Federal Magistrates Court. Though, on the hearing of the appeal the Appellant came to be represented by a solicitor, these grounds of appeal were evidently drawn by her at a time when she was acting for herself. Commendably in these circumstances, and unlike many other so-called notices of appeal in matters of this kind, the grounds of appeal are drawn in a way which makes it plain that the Appellant has appreciated that she is invoking appellate jurisdiction and must thus engage with the judgement of the court below, rather than directly with the decision of the Tribunal.

5                     Each of the grounds of appeal was pressed in oral and written submissions which were made on the Appellant’s behalf by her solicitor. The apprehended bias ground was pressed in a way which recalled and sought to rely upon, in the circumstances of the present case, an inter-relationship which can exist between irrationality or illogicality in fact finding by an administrator or administrative tribunal and the reaching of an objective conclusion that such a decision-maker has not approached that task with an open mind: q.v. NADH v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [15] per Allsop J (Moore and Tamberlin JJ agreeing). Thus the Appellant’s case was that an analysis of the Tribunal’s reasons ought to have led the learned federal magistrate to conclude that the Tribunal’s decision was tainted by the jurisdictional error ground of apprehended bias. It was further the Appellant’s submission that, in reaching that conclusion in this case, a separate jurisdictional error ground of irrationality or illogicality was necessarily exposed.

6                     The Minister’s response was that the court below had correctly decided that an analysis of the Tribunal’s reasons did not provide a basis for an apprehension of bias but only revealed the reaching of factual conclusions that were reasonably open on the material before the Tribunal. The Minister also advanced an alternative argument that, even if the Tribunal’s reasoning could be described as irrational in some sense, such irrationality occurred solely in the process of reasoning from evidence to conclusions of primary fact, and not in any process involving understanding or applying legal criteria. Irrationality in fact finding it was submitted did not, of itself, constitute jurisdictional error.

7                     The learned federal magistrate canvassed at some length the merits of the Appellant’s arguments and of the Minister’s primary argument, in her reasons for judgement. In the result her Honour concluded that each of the grounds of review failed. I agree with that conclusion. So thorough is her Honour’s consideration of pertinent authority and its application in the circumstances of this case that it is tempting to hold that each ground of appeal should fail for the reasons given by her Honour. That though would not do justice to the Appellant or to the careful and concise submissions made on her behalf.

8                     A succinct way of explaining why this appeal must fail is to adopt as applicable to the Appellant’s arguments an observation made by Gleeson CJ and McHugh J at the conclusion of their joint judgement in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [56] in respect of the criticism of and asserted jurisdictional error in the Tribunal’s decision in that case, “[w]hat emerged was nothing more than a number of reasons for disagreeing with the Tribunal’s views of the merits of the case. The merits were for the Tribunal to determine, not for the Federal Court.” That it is possible to take a different view of the merits of the claim which the Appellant advanced before the Tribunal for a protection visa does not mean that the Tribunal’s reasons for an absence of satisfaction that the Appellant was a person to whom Australia owed a protection obligation were irrational or illogical or give rise objectively to an apprehension of bias on the part of the Tribunal.

9                     In summary, the Appellant advanced a claim for a protection visa on the following basis. She claimed that she and her fiancé had lived in his home town in Uganda in a de facto relationship. He operated a successful business there. She assisted him in the operation of that business. The Appellant’s fiancé travelled frequently to the Democratic Republic of the Congo (DRC). He was also an active member in Uganda of an organisation known as the Forum for Democratic Change (FDC). This combination of frequent travel to the DRC and active FDC membership, so the Appellant claimed, brought him under suspicion of collaboration with the Lord’s Resistance Army (LRA) by local community members. These community members, she alleged, had reported her fiancé to Ugandan security forces with the result that he had been arrested at his family’s home on 4 October 2007. When she learned of her fiancé’s arrest the Appellant claimed that she had become very scared and confused. Because the arrest was a “military issue” there was nothing that she could do except pray. Because she was afraid she closed the business and just remained at the home that she had shared with her fiancé. There, on the evening of 20 November 2007, she was arrested and detained by plain clothes members of the security forces who were looking for her fiancé. He had apparently escaped from custody that day. The Appellant claimed that the security forces members removed her from her home and took her to a location not known to her where she was interrogated as to her fiancé’s whereabouts, caned, starved and sexually abused. The Appellant further claimed that, on 14 December 2007, with the assistance of a female guard, she escaped from this location and then remained in hiding at her uncle’s home until she was able to join a party of Ugandans travelling together to Sydney for World Youth Day. It was on this basis that the Appellant claimed to have a well-founded fear of persecution in the event that she returned to Uganda.

10                  The Appellant took advantage of the offer which the Tribunal made to her to present her case orally at a hearing of her review application. She gave evidence in the course of that hearing. Afterwards, the Tribunal formed the view that s 424A of the Migration Act obliged it to give her notice of particular information and to offer her an opportunity to respond to this before finally determining her review application. Both the Appellant’s oral evidence and the response which she made to the Tribunal’s s 424A letter came to be influential in the determination of that application. So, too, did the basis of a protection visa application which the Appellant’s sister had separately advanced after likewise coming to Australia from Uganda in conjunction with an attendance at World Youth Day, prove influential.

11                  As recorded by the Tribunal in its reasons (at para 37) the Appellant’s oral evidence included a statement to the following effect:

37.       The applicant said that the issue was not her fiancé’s support for the FDC; his outspokenness against the government merely brought him to the attention of people.  The reason for his arrest was suspected support for the LRA.  The applicant too was accused of supporting the LRA when she was detained.

12                  The substance of the pertinent part of the Appellant’s response to the s 424A letter, of the basis of her sister’s protection visa application and the influence that had on the Tribunal’s decision to affirm the decision under review is evident from the following, albeit lengthy, extract from the Tribunal’s reasons. The setting out of an extract of this length is, I consider, desirable in light of the nature of the challenge made by the Appellant to the conclusions reached by the learned federal magistrate.

52.       The Tribunal considers the applicant’s account of the circumstances leading to her departure from Uganda, and to her claimed fear of return, to be highly implausible, and does not accept that it is true.

53.       First, the applicant’s account of these events is extremely similar, in its broad outline, to that of her sister, the applicant in Tribunal proceedings 0808854.  The applicant’s sister claims that she was arrested and detained in September 2007 because she and her uncle were suspected to be supporters of a militant guerrilla group (the PRA) because of their support for the FDC.  Both were detained; the applicant was released first and the uncle subsequently escaped.  The applicant was then detained again and questioned about the whereabouts of the uncle.  She escaped with the help of a guard.  She hid with relatives who arranged her travel under the auspices of World Youth Day.

54.       The Tribunal has considered the explanation provided by the applicant in her s.424A response, but does not accept it.  In effect, she made new claims in the s.424A response, namely that she and her sister came from a FDC family and were themselves supporters of the FDC; she suggested therefore that it was not surprising that they were treated similarly by the government.  However, she has never previously claimed that she herself was a member or supporter of the FDC indeed, stated in her oral evidence (see para 37, above) that the issue was not her fiancé’s support for the FDC at all, but the fact that he was suspected of supporting the LRA.  In any case, the claimed “similarities” outlined in the s.424A response – namely a shared pro-FDC political background and consequent similar mistreatment by the government – are not the similarities identified by the Tribunal as pointing to the likelihood that at least one of the accounts was concocted.  The relevant similarities in the claims of the two sisters lie not in their claimed political activity, but rather, in the critical incidents which they say led to their departure, namely:  both claim to have lived in rural Uganda; both claim that the person with whom they lived supported the FDC; that those persons were suspected by the security authorities of supporting a militant guerrilla group (different in each case); that they were detained but escaped from detention; that they were each detained as a consequence and questioned as to the whereabouts of their associate; that both were helped to escape from detention by a kindly guard; that both then hid with different relatives in different parts of the country, and these relatives facilitated the obtaining of visas to travel to World Youth Day.

55.       The Tribunal is of the view that these similarities are the result of at least one of the accounts having been concocted.  The Tribunal finds it far fetched and improbable in the extreme that two sisters would find themselves in such similar, yet unrelated, circumstances, at the same time, and in the lead up to an event which would enable them to leave Uganda.  The Tribunal has considered the possibility that one of the sister’s accounts may be true, but finds that the account of this applicant is problematic and implausible in other respect as well.

56.       First, the applicant claims that her fiancé was arrested on suspicion of collaboration with the LRA during the period when the Ugandan government had signed a ceasefire agreement with the LRA, hostilities had ceased, and negotiations for a peace settlement were underway.  The LRA rebels based in the DRC and south Sudan were being supplied with food and medicine by NGO’s, with the full knowledge and agreement of the government, pursuant to the ceasefire agreement.  In these circumstances, the Tribunal finds it highly implausible that the Ugandan authorities would be suspicious that the applicant’s fiancé was collaborating with the LRA by taking supplies tot hem, merely because he travelled frequently into the DRC.  The applicant’s comment on this information was that things happen to ordinary people in the villages of Uganda which are not reported.  The Tribunal accepts that not every instance of human rights abuse will be reported, however, it considers that the many reports available on the human rights situation in Uganda are thorough and comprehensive, and does not accept that if low level, albeit outspoken supporters of the FDC were routinely subjected to detention on suspicion of involvement with the LRA, this would not be reported.  The Tribunal has also considered the applicant’s written comments on this information, that despite the ceasefire, the government continued to perpetrate human rights abuses against suspected supporters of the rebels, and that her fiancé may have been suspected of supplying civilian supporters of the LRA.  The Tribunal does not accept this explanation.  In the view of the Tribunal, there would be no need for civilian supporters of the LRA in the DRC to receive aid carried in by one individual from Uganda.

57.       Secondly, the Tribunal finds the applicant’s account of her own actions after the claimed arrest of her fiancé to be highly implausible.  It has considered her explanations for these matters, but does not find them satisfactory.  The Tribunal finds it impossible to reconcile her claim that, on the one hand, she was so scared following her fiancé’s arrest that she ceased operating their business; yet she remained in their house in an area of the country far from her own family.  Similarly, while she claims that all she could do following his arrest was to pray for divine intervention, despite claiming to be a devout Catholic she did not attend church in Gulu during this time, or at all.  The Tribunal does not accept the explanation in the s.424A response that because she comes from a different tribal group to the residents of Gulu Town she was afraid to go out without her fiancé.  This somewhat belated claim is inconsistent with the applicant’s claimed ability to conduct a business in Gulu, notwithstanding the frequent absences of her fiancé during this trips to DRC; and with her decision to remain there following his arrest, for which the Tribunal further rejects the explanation that it would have been culturally unacceptable for her to return to her own family.  In fact, on her account she did subsequently return to her family for the seven or eight months prior to her departure.  She states that after her own escape from detention, she made not attempt to contact her fiancé’s family to find out whether there was any news of him. To this day the applicant has not sought any news from her fiancé’s family.  The Tribunal finds these elements of the applicant’s account to be highly implausible, especially given her claim that she initially stayed in their home despite the danger to her because she loved him and expected him to return.  While the Tribunal acknowledges that a person in difficult circumstances may not act in a manner that appears to an observer to be rational, in the light of the other problems in the evidence of the applicant, the Tribunal consider that it is appropriate to view her account of her claimed conduct during this period as internally contradictory, inconsistent with the existence of genuine fear based on the occurrence of the events described, and implausible.

58.       Thirdly, the applicant’s evidence as to a number of matters was surprisingly vague, and when pressed about these areas at the hearing, her demeanour appeared to be evasive.  For example, she stated that she had no sense whatever of the location of her place of detention, even though it was “not that far” from Gulu Town, and the only reason she gave for this, at the haring, was that it was dark.  She could not provide any description at all of the house where she claims to have been detained, again stating at the hearing that it was dark.  In her s.424A response she added that security authorities detain political opponents at such “safe houses”, which exist in “invisible places”; however, while this particular claim is supported by country information, the Tribunal does not consider that the applicant had adequately explained her inability to provide any information at all about the location or appearance of the place where she claims to have been detained  She was also extremely vague when asked to provide details of Gulu Town, such as the location of the bus station, the location of her business, what public buildings were located close to her business, and how long it took to get from one location to another.  This degree of vagueness leads the Tribunal to doubt whether the applicant resided in Gulu as she claims, as does her statement that she did not attend church in Gulu despite being a devout Catholic.  The Tribunal has considered, but does not accept, the applicant’s explanations for these matters; and it has also taken into account the fact that in some respects her knowledge appeared accurate, for example, as to the bus fares between Gulu and Kampala.

59.       Finally, the Tribunal considers the applicant’s account of her escape to be highly implausible.  If, as she claims, the authorities would still be seeking her, and if the circumstances of her escape were likely to lead to serious consequences for the woman who she claims helped her, then the Tribunal has difficulty accepting that this woman would have taken the risk of letting her escape at all.  The applicant is unaware of any information to indicate that the authorities were actively seeking her either before or since her departure from Uganda.  She said that she did not ask.  The Tribunal does not accept that a person in her situation would not make inquiries to ascertain whether the authorities had made inquiries about her before making the decision to leave her country and not return.  In the view of the Tribunal, this would include inquiries of her fiancé’s family.  The Tribunal does not accept the applicant’s written explanation that she fears that if she were to contact anyone in Uganda it might place them in danger.  The Tribunal does not accept that the profile of the applicant or fiancé is such that his relatives would remain under such close surveillance that any contact by the applicant would come to their attention.  The Tribunal considers that if the applicant was indeed at serious risk as she claims, there would be information to indicate that the authorities have indeed been looking for her, or that she would, indeed, have been picked up on departure, despite the fact that she was with a group of pilgrims.  On the whole, the Tribunal considers the applicant’s account of these events to be contradictory and implausible.

60.       Because the Tribunal does not accept the applicant’s account of the arrest of her fiancé and her own detention, it does not accept that she herself was suspected of supporting the LRA.  In her s.424A response, the applicant seems to suggest that she was liable to mistreatment as a member of a family which supported the FDC.  The Tribunal notes that this is a new claim; at the hearing the applicant did not claim to be a member or supporter of the FDC, nor did she mention that other members of her family were.  The Tribunal does not accept that the applicant was an actual or imputed supporter of the FDC, and considers that this late raising of a new claim further diminishes the applicant’s credibility.

61.       The Tribunal has considered the applicant’s claims carefully, and is mindful that great caution should be used when assessing the plausibility of an applicant’s account, given the subject nature of such an assessment.  In this case, while each of the elements that the Tribunal regards as implausible might, on its own, be able to be explained away, the Tribunal considers that when her account is considered as a whole, it simply cannot be accepted.  In the light of the deficiencies in the applicant’s account which are outlined above, and given the suspicious nature of the similarities between the claims of the applicant and her sister, the Tribunal is of the view that the applicant’s account of the circumstances which led to her departure from Uganda is not true.  The Tribunal does not accept that the applicant’s fiancé was detained in the circumstances she describes.  The Tribunal is not satisfied that the applicant was detained in Uganda either because of her own political activity or opinion, or because of association with her fiancé.  The Tribunal does not accept that the applicant is wanted by the Ugandan authorities for these reasons, or because she may have information about her fiancé, or because she escaped from detention.  The Tribunal is not satisfied that the applicant has a well founded fear of persecution in Uganda for reason of her political opinion, a political opinion imputed to her, or for any Convention reason. [sic]

13                  The same member had constituted the Tribunal for the purpose of hearing and determining the Appellant’s sister’s review application. That application had been heard on the day prior to the hearing of the Appellant’s review application and had likewise resulted in an affirmation of the Ministerial delegate’s decision to refuse the protection visa application. The Tribunal’s decision and reasons in respect of the sister’s case were tendered in evidence in the judicial review proceeding in the Federal Magistrates Court. It is evident from those reasons that the sister’s case failed because of a conclusion which the Tribunal reached as to the implausibility of her claim and that, in reaching that conclusion, the Tribunal was influenced by similarities it discerned as between her claim and that of the Appellant.

14                  The Appellant did not submit that the learned federal magistrate had misunderstood the applicable principle by reference to whether the making of an administrative decision was attended by a reasonable apprehension of bias. It was common ground between the parties before her Honour and also in the appeal that the relevant test was as stated in the following passage from the joint judgement of Gleeson CJ, Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at [27] and [28]:

27        The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.

28        Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.

[Footnote references omitted]

Her Honour approached whether the apprehended bias ground was made out on the basis of this test, as do I.

15                  The Appellant’s submission was instead that the learned federal magistrate had erred in the application of this test in the circumstances of this case. A number of features of the reasons, each of which had been highlighted on the Appellant’s behalf in the court below, were said to support such a conclusion. I shall consider each of these in turn.

16                  It was submitted on behalf of the Appellant that the Tribunal had based its decision in this case on similarities as between the claim of the Appellant and that of her sister. It was submitted that, in so doing, the Tribunal had closed its mind “to the readily accepted proposition that sisters living in rural Uganda would grow up with similar political beliefs, mix with similar people and encounter similar life experiences”.

17                  The Appellant pointed to the similarities which the Tribunal had identified in paras 53 to 55 of its reasons for decision [included in the extract above].  Of these it was submitted that, “[i]t is unexceptional that sisters growing up together took up similar political views and formed relationships with people who shared those views.” It was further submitted that, if the Appellant and her sister were each being sought by the government, “it is equally unexceptional that they were arrested and, given Uganda’s human rights record, tortured in an attempt to find the whereabouts of their associates.”

18                  The Minister’s response to this particular submission, as with his response to other features of the Tribunal’s reasons to which attention was drawn on behalf of the Appellant, was, in essence, that the way in which the court below had dealt with them was correct.

19                  In this regard, the learned federal magistrate had, inter alia, observed (at reasons for judgment, paras 39, 40 and 42):

39        Importantly, the Tribunal’s concern was not that the claims were similar, but rather that they were so similar and yet unrelated. The applicant did not rely on her sister’s claims to corroborate her own claims, either in her protection visa application or in documents provided to the Department or the Tribunal, except insofar as there was reference made to the sister in the response to the suggestion in the s.424A letter that sisters could have similar backgrounds and political opinions. The Tribunal did not simply assume that two sisters could not have similar claims. It found it difficult to accept that two people living in separate remote parts of Uganda could have such similar but unrelated experiences at the same time which coincided in them both leaving Uganda to come to World Youth Day at the same time.

40        … What concerned the Tribunal in respect of these similarities [those set out in paragraphs 53 to 55 of the Tribunal’s reasons] was not just that the claims were similar, but that they were similar in unrelated circumstances.

42        … [The] Tribunal did not simply reject the application on the basis of the similarity of claims. It considered the possibility that one of the sister’s accounts may be true, but rejected that possibility in relation to the applicant because of the other problems it found with her evidence.

Her Honour concluded that the Tribunal’s analysis arising from the similarities in the claims was not indicative of a closed mind.

20                  I agree with this conclusion. That is so whether, as I consider is required, the reasons are read as a whole and taking into account all of the features the Appellant sought to highlight or only the Tribunal’s discussion of the subject of “similarities” is considered.

21                  The propositions which were advanced on behalf of the Appellant as to what were termed “unexceptional” similarities as between the claims of the Appellant and her sister were, I accept, one way of viewing those similarities but they were by no means the only way of viewing them. The way in which the Tribunal dealt with those similarities does not strike me as either illogical or irrational. Especially that is so when the reasons are read as a whole and it is recalled that the Tribunal had the benefit of personally assessing the Appellant’s demeanour and candour when she gave evidence orally at the hearing. Further, as was put on behalf of the Minister and as the court below had concluded (reasons for judgment, para 36), it is inaccurate to describe the Tribunal’s decision as “based on” the similarities between the claims of the Appellant and her sister. The similarities and the adverse inferences which the Tribunal drew from them were expressly tempered by assuming against those inferences that one of the sister’s accounts might be correct and reflecting upon whether, in light of other factors to which the Tribunal drew attention, the Appellant’s account should be regarded as credible (see paras 55 to 59 of the Tribunal’s reasons, extracted above).

22                  That the Tribunal adopted this course of reasoning is to me a factor which, objectively, tells strongly against there being a basis upon which to apprehend bias on the part of the Tribunal. To hold otherwise in respect of the Tribunal’s conduct thus revealed is, in my opinion, to discern, without evidentiary foundation, Machiavellian perversity in what is otherwise the fair approach of proceeding not to treat the claim as tainted by unlikely similarities and then reflecting on whether it is otherwise plausible such that the requisite state of administrative satisfaction with respect to the protection visa criterion has been engendered.

23                  In her visa application the Appellant stated, “[t]hank God one female guard sympathised with me and she helped me escape on the 14^th December 2007.” In her response to the Tribunal’s s 424A letter the Appellant had stated, “[t]hey are arrested, detained and the detainees could always find a way to escape through bribing the security officials.” In developing why the reasons were said to reveal a closed mind it was said to follow from these statements that, so far as the Appellant was concerned, there had been no foundation for the Tribunal’s observation (reasons for judgment, para 54) that she had claimed that she was helped to escape by a “kindly guard”. Yet, read in context, it is clear that the statement made in the response to the s 424A letter is made at a general level of abstraction not in respect of the very circumstances which the Appellant claimed to have experienced. In describing her own experience in her visa application she used the adjective “sympathetic” but it is no misuse of language, let alone an objective marker for an apprehension of bias on the basis of irrationality, that the Tribunal has used “kindly” in its description of a feature common to the claims of the Appellant and her sister.

24                  With respect to common features of the claims of the Appellant and her sister it does not at all follow that because it is possible to formulate an alternative process of reasoning which explains away such similarities in their respective accounts in a way which is not inherently irrational or illogical that a process of reasoning that treats such similarities in a less benign way is axiomatically one that is irrational or illogical and indicative of a closed mind. The sisters were living in different locations. Given this and in the face of the number of similarities in their accounts it is possible rationally to regard their accounts as a collaborative concoction.

25                  Contrary to another element of the Appellant’s critique of the Tribunal’s reasons and as the learned federal magistrate found (reasons for judgment, para 49) it was well open to the Tribunal to conclude that, in her response to the Tribunal’s s 424A letter, the Appellant had advanced a claim of personal or familial involvement with the FDC which was absent from the claim made on her visa application. The latter developed a claim of persecution based on association with a fiancée who was an FDC supporter and made no reference to any direct involvement by the Appellant or her family with that organisation. I accept the Minister’s submission that the Tribunal’s reasons reveal neither misrepresentation nor exaggeration on its part in relation to her response to the s 424A letter. Further, and again accepting the Minister’s submission in this regard, the novelty evident in this aspect of the Appellant’s response to the s 424A letter does rationally admit of the drawing of an adverse inference by the Tribunal against the Appellant.

26                  Further and in my opinion even more fundamentally, having regard to what was said with respect to what did not amount to “information” for the purposes of s 424A of the Migration Act by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18], the letter to which the Appellant responded arguably went further than what that section strictly required by exposing, apart from what truly was “information”, a prospective process of reasoning in relation to the Appellant’s credibility and inviting comment on that, too. Again, that the Tribunal did this does not objectively admit of an apprehension of bias on its part but rather supports the contrary.

27                  The Tribunal was not obliged uncritically to accept the explanations which the Appellant gave in response to its s 424A letter. Rather, it was entitled to and self-evidently from its reasons did consider those explanations in the context of all of the material before it, including the Tribunal’s assessment of the Appellant’s credibility arising from her having given oral evidence before it. The Appellant was not subject to any formal onus of proof in respect of the application which she made to the Tribunal for the review of the Ministerial delegate’s decision. Nonetheless, it was obviously in her interest to put such material and to advance such arguments as she could to engender the requisite state of satisfaction on the part of the Tribunal.

28                  The Tribunal was under a statutory duty to furnish reasons for its decision: s 430(1)(b) of the Migration Act. In this case, the end to which the Tribunal prepared reasons in the discharge of that statutory obligation was primarily to explain to the Appellant and also to the Minister and his Department why it was that the Tribunal was not satisfied that the Appellant was a person to whom Australia had protection obligations under the Refugees Convention and thus why it was that she did not satisfy the criterion for the grant of a protection visa for which s 36(2)(a) of the Migration Act provides. The end identified by the Tribunal accorded with the external merits review role consigned to it by Parliament by s 414 of the Migration Act. If, as here, it is later sought to challenge on judicial review the lawfulness of the Tribunal’s decision, then that consigned role and the consequential obligation to give reasons for the decision reached on that merits review, the exercise of judicial power in respect of that challenge is attended with features of basal importance, flowing from the separation of powers under the Constitution (Cth).

29                  As was definitively explained by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 et seq, administrative decisions entailing a jurisdictional fact constituted by “satisfaction” as to a particular state of affairs or event are not unexaminable on judicial review. However, to adopt, as did their Honours in their joint judgement in Wu Shan Liang (185 CLR 259 at 272), an observation made by Brennan J (as his Honour then was) in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36, “The merits of administrative action, to the extent that they can be distinguished from illegality, are for the repository of the relevant power and, subject to political control, for the repository alone”. In relation to the reasons which are furnished by the repository of the relevant power, here the Tribunal in the exercise of its power of review, the joint judgement in Wu Shan Liang counsels further (185 CLR 259 at 272) that these “are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned by the way in which the reasons are expressed”.

30                  These features of judicial review are much rehearsed in prior judgements. The frequency of their encounter underscores rather than diminishes by familiarity the importance of a principled restraint being exercised by a reviewing court in, materially, apprehending bias on the part of the Tribunal arising from the way in which its reasons are expressed. In this regard, if, viewed as a whole, the scrutiny to which an applicant for judicial review subjects those reasons yields nothing more than a series of reasoned propositions in respect of which reasonable people might reasonably differ as to the likelihood of elements of an individual’s claim for a protection visa and the credibility of explanations given in respect of that claim then that scrutiny will not, by any objective measure, give rise to a basis for apprehending bias on the part of the Tribunal. As I mentioned above by reference to NADH v Minister for Immigration and Multicultural and Indigenous Affairs, the position may well be different if that scrutiny revealed persistent illogicality or irrationality in fact finding.

31                  The learned federal magistrate was plainly alive to the need to exercise such restraint (qv para 41 of her Honour’s reasons for judgment). In fairness, so, too, I thought, was the Appellant’s solicitor when making submissions on the hearing of the appeal. That the Appellant has failed to persuade me that the court below erred in concluding that the Tribunal’s reasons did not give rise to an apprehension of bias is not a reflection of misunderstanding on the part of her solicitor as to the role of the Federal Magistrates Court but instead nothing more than indicative of a difference as to the objective conclusion to be reached when those reasons are read as a whole.

32                  All that is revealed by the Tribunal’s reasons in this case, in my opinion, is a rational and logical explanation for why it is that the Tribunal was not satisfied that the Appellant was a person to whom Australia owed a protection obligation. Reasons of that kind do not give rise to an apprehension of bias.

33                  Given the way in which the Appellant advanced her apprehended bias ground of appeal it necessarily follows from a rejection of that ground that her challenge based on error on the part of the court below in failing to uphold the jurisdictional error ground of irrationality or illogicality must also fail.

34                  In these circumstances it is unnecessary to consider in depth the merits of the Minister’s alternative submission that irrational fact finding does not of itself constitute jurisdictional error. Numerous authorities were cited in the Minister’s written submission which were said to support this proposition but none of these was an appeal decided at ultimate appellate level. Especially in that latter regard, there was notably no direct reference to Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 77 ALJR 1165 (S20) or to Minister for Immigration and Multicultural Affairs v SGLB (2004) 78 ALJR 992. The ramifications of the judgements delivered in these cases is the subject of highly persuasive critical analysis in Aronson M, Dyer B & Groves M, Judicial Review of Administrative Action (4^th ed, Law Book Co, 2009) under the heading “Challenging seriously irrational or illogical fact finding”, commencing at p 265. While all that the learned authors there observe repays study, I particularly agree with the following opinion which they voice (at p 270) in relation to S20:

… [We] have two reasons for thinking that S20’s potential goes beyond the niceties of determining the proper label for a review ground. First, S20’s demarcation between the review standards of unreasonableness and irrationality provides each with a much sharper focus. There is a significant difference between supervising evaluative choices on the one hand (unreasonableness) and the care with which decision-makers have approached their tasks (irrationality). Secondly, S20’s recognition of review for errors which are not errors of law results in a paradox. We discussed Kirby J’s continuing sense of disappointment that errors of fact-finding are not errors of law even if they are “perverse”. They remain errors of fact but now they can be jurisdictional errors. The paradox is that his Honour’s goal of permitting judicial supervision of perverse fact-finding has now been achieved for judicial review but not for appeals limited to errors of law. And it has been achieved by deployment of a concept (jurisdictional error) which his Honour opposed for being manipulable and conclusory.

[Footnote references omitted, emphasis added]

35                  Thus, were it to matter for the purposes of this appeal, and it does not, I would reject the Minister’s alternative submission.

36                  For these reasons the appeal must be dismissed.

Associate:

Dated:         21 April 2010