FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v MZYNN [2012] FCA 1177

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Magistrates Court of Australia made on 16 February 2012 in proceeding number MLG 860 of 2011 be set aside.

3.    There be substituted for those orders orders that:

    (1)    The application to the Federal Magistrates Court of Australia in proceeding         number MLG 860 of 2011 be dismissed.

    (2)    The first respondent pay the appellant’s costs of proceeding number MLG 860     of 2011.

4.    The first respondent pay the appellant’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

The nature and history of the proceeding

1    On 16 February 2012, the Federal Magistrates Court of Australia ordered the issue of writs having the effect of quashing a decision of the second respondent to this appeal, the Refugee Review Tribunal (“the Tribunal”) and directing the Tribunal to hear and determine that application according to law. Those orders were made in an application to the Federal Magistrates Court by the first respondent to this appeal. The orders and reasons for judgment of the learned federal magistrate are published as MZYNN v Minister for Immigration & Anor [2012] FMCA 96. The Tribunal’s decision was to affirm a decision of a delegate of the appellant, the Minister for Immigration and Citizenship (“the Minister”), to refuse to grant to the first respondent a protection visa, pursuant to the Migration Act 1958 (Cth) (“the Migration Act”).

2    The federal magistrate found that the Tribunal’s decision was affected by jurisdictional error in two respects. First, her Honour found that delay on the part of the Tribunal in producing its decision and reasons for decision may have impaired the Tribunal’s assessment of the credibility of the first respondent in respect of one aspect of his claims, and that the Tribunal therefore denied the first respondent a fair hearing. The first respondent claimed to have been attacked by members or supporters of a political party called the All People’s Congress (“the APC”), who hit him with the blunt edge of a machete blade, causing injury, but then desisted from attacking him because they believed they had killed him. The Tribunal disbelieved this claim, although it had made a general finding on credibility that was favourable to the first respondent. The second jurisdictional error was the failure of the Tribunal to identify in its reasons how a particular social group of which the first respondent claimed to be a member should be defined. The Minister has appealed from that judgment, contending that the federal magistrate erred in reaching both conclusions.

3    At the hearing of this appeal, counsel for the first respondent sought and was granted leave to file a notice of contention dated 10 August 2012. By that notice, the first respondent contended that the judgment of the Federal Magistrates Court should be affirmed on a ground on which the federal magistrate had not relied. That ground was that, in disbelieving the first respondent’s claim about the machete attack, the Tribunal made a decision that no reasonable person could have made. This contention had been raised in the application to the Federal Magistrates Court, but the federal magistrate had not found it necessary to deal with the contention, because she had found in favour of the first respondent on two other grounds.

4    By s 36 of the Migration Act, there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms “Refugees Convention” and “Refugees Protocol” are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call these two instruments, taken together, the “Convention”. For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country

5    The first respondent is a citizen of Sierra Leone. On 29 November 2008, he arrived in Australia as part of the team representing Sierra Leone in soccer, competing for the Homeless World Cup. On 23 December 2008, he applied for a protection visa. On 18 December 2009, a delegate of the Minister decided to refuse the application. The first respondent applied to the Tribunal for review of the decision of the Minister’s delegate. On 9 February 2010, the Tribunal conducted a hearing, at which the first respondent gave evidence and presented arguments, assisted by a migration agent and an interpreter. On 20 May 2010, the Tribunal wrote to the first respondent, pursuant to s 424A of the Migration Act, inviting him to respond to information it considered might be the reason, or part of the reason, for affirming the delegate’s decision. The first respondent’s migration agent responded on his behalf on 31 May 2010.

6    The first respondent provided a substantial amount of written material to the Tribunal, both before and after the Tribunal’s hearing, including material supplied in June and July 2010.

7    The Tribunal’s decision, and written reasons for decision, are dated 25 May 2011 and were forwarded to the first respondent and his migration agent by letters dated 26 May 2011.

The first respondent’s claims

8    At [168] of its reasons for decision, the Tribunal summarised the claims considered as follows:

The Tribunal has considered the applicant’s claims that he has a well founded fear of persecution in Sierra Leone for the express or implied reasons being his:

•    Actual and/or imputed political opinion in support of the Sierra Leone People’s Party (SLPP);

•    Actual and/or imputed political opinion against the ruling All People’s Congress (APC) government on account of his membership of the Youth Movement;

•    Membership of a particular social group comprising of members of the Youth Movement;

•    Actual or imputed political opinion against the Sierra Leone government on account of his failure to return to Sierra Leone at the end of the Homeless World Cup;

•    Membership of a particular social group being homeless men in Sierra Leone;

•    Susu ethnicity.

9    For present purposes, the focus is on two of these claims. The first is the claim that the first respondent had a well-founded fear of persecution in Sierra Leone for the reason of his actual or imputed political opinion against the APC government on account of his membership of the Youth Movement. The second is what the Tribunal identified as the first respondent’s claim to have such a fear by reason of his membership of the particular social group of homeless men in Sierra Leone.

The machete attack claim

10    In his first statutory declaration dated 22 December 2008, the first respondent dealt with the consequences of his involvement in an election campaign on behalf of the SLPP as follows:

9.    When the SLPP lost the election, I was immediately targeted by supporters of the APC, because of my opposition to them during the election campaign. My life was threatened, and I became very fearful of going out. To protect me, the Director Alpha Amadu−Jalloh arranged for me and many others to live in the Youth Movement’s compound in Freetown. I continued to live there until I came to Australia in November 2008.

10.    Whilst I lived in the compound in Freetown, I did not leave the premises on my own, as I knew that I would be killed by APC supporters if I did so. There were many threats made against my companions and myself, but we were protected by the Youth Movement. I know that many others who also supported the SLPP were killed or harmed by APC supporters as revenge for not supporting the party.

There was no mention in that statutory declaration of any attack with a machete.

11    Subsequently, the first respondent made two separate statutory declarations, both on 2 April 2009, on which he also relied in support of his application for a protection visa. There was no mention in either of them of any attack on him with a machete. One declaration dealt with events that had occurred since the first respondent had come to Australia and the other with a refutation of any possible reasons for which the first respondent might have been refused a protection visa, despite having the requisite well-founded fear.

12    At [29] of its reasons for decision, the Tribunal summarised information given to the Minister’s delegate at an interview on 12 June 2009 as follows:

He told the delegate that he was a supporter of the SLPP. He campaigned for the SLPP and would go from house to house to speak to people about the APC Government and that he was known and targeted as a supporter of the SLPP. He claims that on election day in 2007 he was attacked by a group of men wielding a machete. His attackers fled. He did not report this to the police or the authorities because he did not feel confident that the attack would be investigated.

13    The first respondent submitted to the Tribunal a further statutory declaration, made on 3 February 2010. This appears to be the first occasion on which he gave an account of the alleged machete attack in the form in which it was dealt with finally by the Tribunal. The account was as follows:

6.    A few weeks after the election, I was attacked with a machete and left for dead. I have previously described this incident in my application for the Protection Visa and at interview. I recognised the person who attacked me. He was an APC supporter. He attacked me at night, hitting me on the back of my neck with the blunt side of the machete. He only left me because he thought that he had killed me. After this, I became too scared to leave the compound. These people thought that I was dead and I knew that if they found out I was alive, they would try to kill me again. These people are still in Freetown and if I were to return to Sierra Leone, I believe that they would recognise me and try to kill me again.

7.    I could not report the attack on my life to the police as they had made clear to me that I could not go to them for help. However, the administration of the SLPP knew me very well because of my membership with them and the work I had done for them so the attack was reported to the SLPP on my behalf by another SLPP member Abdulia, as was the fact that my life continued to be at risk and that I was in hiding.

14    At [58] of its reasons for decision, the Tribunal summarised the first respondent’s evidence at the hearing about the alleged machete attack in the following terms:

He told the Tribunal that about three weeks after the elections in September 2007 he was targeted by APC supporters. He said he was attacked with a machete. They stole his phone and money (10,000 Leons). He did not report this attack to the police because he was scared.

The particular social group claim

15    In his first statutory declaration dated 22 December 2008, the first respondent summarised in paragraph 2 three reasons for his fear of having to return to Sierra Leone. The first was his active support for the SLPP. The second was, “In Sierra Leone I am homeless and very vulnerable to attack by members and supporters of the APC”. The third was his membership of the Youth Movement. In paragraphs 4 and 5 of this same statutory declaration, the first respondent told of how he had fled to Guinea from the civil war in Sierra Leone and subsequently had been forced to return to Sierra Leone. He then said:

6.    After returning to Sierra Leone, I went to my former home area of Bombali. I could not live in my own village, as it and my house had been destroyed. I survived by living on the streets in different towns and villages, but my life was very hard. I was homeless, sleeping usually in market areas, and undertook any work I could find, which was usually very hard physical work. I could not attend any school, and had no family members to provide me with support of any kind. I was often attacked and beaten, because I was so vulnerable. I am a member of the Susu tribe, but there were also many members of the Tememe tribe living in Bomabali [sic], and they also often targeted me because I was from a different tribe and homeless, and therefore an easy target. They were very aggressive and fought often.

16    In a detailed written submission to the Tribunal, dated 8 February 2010, the first respondent’s migration agent again referred to the issue of homelessness. The reference was as follows:

(c)    If forced to return to Sierra Leone, [the first respondent] fears he would suffer nt’s [sic] rounding up of homeless people in Addis Ababa [sic] and dumping them ent [sic], physical assault, and possible death at the hands of the Sierra Leone Government authorities (the All People’s Congress − the APC), or violence including death at the hands of APC members or supporters, on account of

i)    His actual and imputed political opinion in opposition to the APC;

ii)    His actual and imputed political opinion in support of the SLPP;

iii)    His actual and imputed political opinion against the Sierra Leone government on account of his membership of and activities with the Youth Movement;

iv)    His membership of the particular social group comprising members of the Youth Movement;

v)    His actual and imputed political opinion against the Sierra Leone government as a result of his profile as a member of the Sierra Leone Homeless World Cup team, including his failure to return to Sierra Leone at the end of the Homeless World Cup and his application for asylum in Australia.

17    The Tribunal referred to this submission at [49] of its reasons for decision. It paraphrased the statement about the rounding up of homeless people in Addis Ababa without commenting on the obvious geographical error or the deficiencies in proofreading of the submission. Although the first respondent and his migration agent raised specifically the claim relating to membership of the Youth Movement as a claim of fear of persecution because of membership of a particular social group, there does not appear to have been any time at which they articulated a claim to a well-founded fear of persecution on the basis of membership of a particular social group relating to homelessness. Rather, homelessness appears to have been relied on as creating opportunities for the infliction of harm on the first respondent by those who targeted him for his political opinion, actual or imputed, and perhaps for other reasons.

The Tribunal’s reasons for decision

18    At [181] of its reasons for decision, the Tribunal dealt with its assessment of the first respondent’s credibility. It said:

The Tribunal found the applicant to be a credible witness, whose accounts of past events has [sic] been consistent, and in conformity with the independent evidence sourced by the Tribunal. His accounts of the circumstances leading to his departure from Sierra Leone, and the reasons for which he does not want to return were consistent with that presented in his written statements/statutory declarations in support of his protection visa application.

19    The Tribunal then proceeded to deal with the first aspect of the first respondent’s claim to have a well-founded fear of persecution for the reason of his political opinion, based on his profile as a supporter of the SLPP and a member of the Youth Movement. It turned first to the first respondent’s role as a supporter of the SLPP. It accepted that he was involved in campaigning and promotion activities for the SLPP in his local area in the past; that he was involved in campaigning for the SLPP for the elections in 2007; that his activities included travelling to different areas in Freetown, talking to people about the elections, driving for the SLPP, and sometimes dancing at rallies as a way of promoting the party; and that he would speak to people about the violent history of the APC and encourage them to vote for the SLPP. The Tribunal also accepted that, following the elections in 2007, the first respondent was targeted by members of the APC and threatened by the police for his involvement in those elections. At [189] of its reasons for decision, the Tribunal then said:

The applicant claimed in his protection visa application that following the 2007 election he was attacked by APC members and was hit with the blunt end of a machete. The Tribunal notes that the applicant was unable to produce any evidence of his admission or stay in hospital or of the injuries he claims to have sustained. The Tribunal does not accept that the applicant was attacked by APC supporters as claimed and that he was injured as a consequence.

20    The Tribunal made further findings in favour of the first respondent. On the basis of his own evidence, however, it did not accept that the first respondent was a high profile member of the SLPP, or that he held any senior or leadership position or any formal office. The Tribunal therefore did not accept that the first respondent was of interest to the APC government or its supporters by reason of his political activities. Even if he had been subjected to some intimidation by APC supporters, the Tribunal did not accept that such intimidation amounted to serious harm of the type contemplated by s 91R(2) of the Migration Act, so as to constitute persecution. The Tribunal did not accept that the first respondent would be the target of serious harm in the reasonably foreseeable future, if he were to return to Sierra Leone.

21    Although the first respondent and his migration agent had not articulated a claim to a well-founded fear of persecution by reason of membership of a particular social group of homeless men or people (despite having articulated a particular social group claim with respect to membership of the Youth Movement) the Tribunal clearly took the view that it was required to deal with the issue of membership of a particular social group, being homeless men in Sierra Leone. The second-last point in the summary of the first respondent’s claims at [168] of the Tribunal’s reasons for decision (see [8] above) demonstrates this. The issue was dealt with at [259]-[262] of the Tribunal’s reasons for decision. At [259], the Tribunal recounted the history of the first respondent’s flight in 1995 to Guinea, where he lived until 2000, his inability to live in his former house when he returned because it had been destroyed and his residence in the Youth Movement’s compound in Freetown after the 2007 election. At [260], the Tribunal said:

The Tribunal does not accept that the applicant was homeless in Sierra Leone before his departure to Australia or that he will be homeless if he returns to Sierra Leone. The applicant has given evidence to the Tribunal that he has been a member of the Youth Movement since 2007 and that he lived at the Youth Movement compound in Freetown from September 2007. Based on the evidence provided by the applicant, the Tribunal does not accept that the applicant was homeless in Sierra Leone as claimed, but finds that he was able to access accommodation through the Youth Movement of which he was a member from 2007 until his departure from Sierra Leone.

At [261], the Tribunal considered the future. It found that the first respondent had previously found work as a labourer, and that he was literate in the relevant language. It found that he would be able to find both employment and accommodation in Sierra Leone if he should return there. It did not accept that he would be homeless. At [262], the Tribunal then said:

It follows that the Tribunal does not accept that the applicant faces a real chance of serious harm from either state or non-state actors for reason of his membership of the particular social group of homeless men in Sierra Leone. The Tribunal does not accept that the applicant has a well founded fear of persecution for reason of his homelessness now or in the reasonably foreseeable future if he returns to Sierra Leone.

The application to the Federal Magistrates Court

22    The first respondent’s application to the Federal Magistrates Court was amended by leave at the hearing in that court. Four grounds alleging jurisdictional error were raised. The first ground concerned the time that elapsed between the Tribunal’s hearing on 9 February 2010 and the last submission of the first respondent’s migration agent on 14 July 2010 until the completion of the Tribunal’s decision on 25 May 2011. It was suggested that this delay caused a real and substantial risk that the Tribunal’s capacity for competent evaluation of the first respondent’s claims was diminished. As the Tribunal’s failure to accept some of those claims was a substantial reason for the Tribunal’s decision to affirm the refusal of a protection visa, the first respondent contended that the Tribunal had failed to provide a fair hearing of his claims as required by s 425 of the Migration Act. The second ground concerned s 424A of the Migration Act and is not relevant to this appeal. The third ground concerned the issue of the particular social group of homeless men in Sierra Leone. The first respondent contended that he had claimed to be at risk of persecution because of his membership of a group of men in Sierra Leone without access to stable, reasonable and safe accommodation. He said that the Tribunal concluded erroneously that the claim was one to membership of a particular social group of men in Sierra Leone who are able to access accommodation. The Tribunal therefore failed to address the claim as presented, misconstrued the nature of the claim, asked itself the wrong question and therefore failed to discharge its duty to consider the first respondent’s claims. The fourth ground referred to the apparent conflict between the Tribunal’s finding that the first respondent was a credible witness and its non-acceptance of some of those claims, although there was no reference to any evidence that refuted them. The first respondent contended that, as a result, no reasonable person could have made the same decision as the Tribunal made.

The federal magistrate’s reasons for judgment

23    In respect of the first ground of the application to the Federal Magistrates Court, the federal magistrate began by quoting at [63] of her reasons for judgment from the judgment of Heydon J in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 (2009) 239 CLR 175 at [152], where his Honour said:

Authority both in England and in intermediate appellate courts in this country would correctly regard ten months as an excessive period of reservation, even for the most complex of trials or appeals.

At [64], the federal magistrate expressed the view that a delay of 10 months in the case of a Tribunal reviewing decisions concerning the status of applicants for protection visas “should be regarded as excessive.” Her Honour then stated the question she had to determine as follows:

The issue is therefore whether the delay − and the delay between the actual hearing and the decision was in this case in excess of 15 months − impaired the Tribunal’s capacity to make an assessment of the credibility of the Applicant or in some other way rendered the decision unsafe.

24    Her Honour quoted from the judgments of Gleeson CJ and Kirby J in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 (2005) 228 CLR 470. Her Honour then quoted passages from the Tribunal’s reasons for decision. At [71], her Honour referred to the Tribunal’s rejection of the first respondent’s claim about the machete attack. Her Honour said that “no specific reason is given for this finding”, but then quoted what the Tribunal said at [189] of its reasons for decision about the absence of evidence of hospitalisation or of injuries.

25    At [73], the federal magistrate said:

The assessment however that he did not have a genuine fear of serious harm on the basis of his political activity cannot be disassociated from its findings that he was not attacked by APC members and hit with the blunt end of a machete.

At [74], her Honour quoted the passage from [29] of the Tribunal’s reasons for decision, to which I have referred in [12] above, in which the first respondent had said that the machete attack was on election day, and made no reference to any injuries. At [75], her Honour quoted the passage from the first respondent’s statutory declaration of 3 February 2010, to which I have referred in [13] above, in which he went into greater detail about the nature of the alleged attack, describing it as having occurred a few weeks after the election.

26    The federal magistrate’s reasoning on this issue is found at [77]-[79] of her Honour’s reasons for judgment:

In the context of the general findings of the Tribunal it is significant that while the Tribunal rejected the Applicant’s views on a number of matters and supporting material provided by him and also considered that on the basis of his own evidence his claims for protection were not substantiated, the issue of the machete attack appears to be the only piece of the Applicant’s evidence relating to his narrative of his own experiences rejected by the Tribunal. It is not easy to discern how the Tribunal rejected this piece of evidence, which could only be based on an assessment of his credibility, given its other findings which essentially accepted him as a credible witness, insofar as his recounting of his own experiences was concerned.

Furthermore it is hard to see, on the basis of the material before the Court, how over 15 months after his appearance before the Tribunal such an assessment of his credibility on this issue alone, could have been fairly been [sic] made. I am therefore satisfied that the delay created a real and substantial risk that the Tribunal’s capacity to assess the Applicant’s evidence was impaired so that he was denied a fair hearing (see NAIS per Gleeson CJ and Kirby J).

The finding is significant because had the Tribunal accepted his evidence it may have caused the Tribunal to form a different view on whether the Applicant had a genuine fear of persecution and whether such a fear was ‘well founded’.

27    At [89] of her reasons for judgment, the federal magistrate began dealing with the third ground of the first respondent’s application to the Federal Magistrates Court by quoting from his statutory declaration of 22 December 2008 in the passage to which I have referred in [15] above. This was the passage in which the first respondent recounted how he returned to his former home to find the village and his house had been destroyed. He survived by living on the streets in different towns and villages. He was homeless, sleeping usually in market areas. He was often attacked and beaten because he was so vulnerable. At [90], her Honour quoted from the same statutory declaration the first respondent’s account of how he came to live in the Youth Movement compound in Freetown. At [91], her Honour referred to the Minister’s delegate’s acceptance of the proposition that the first respondent had been homeless until he lived in the Youth Movement’s compound in Freetown. At [92], the federal magistrate referred to the Tribunal’s summary of the first respondent’s evidence about being homeless, working on the streets, being asked by police for ID and being arrested and held overnight on one occasion. Her Honour quoted from [59] of the Tribunal’s reasons for decision, where the Tribunal said:

The applicant told the Tribunal that he started playing soccer when he was homeless and living in Makini. He found out about the Homeless World Cup (HWC) team through the Youth Movement. He said that at the time he was living at the compound but was still considered to be ‘homeless’.

28    At [93], the federal magistrate quoted from the Tribunal’s reasons for decision at [260] and [261] (see [21] above).

29    At [94]-[95], the federal magistrate said:

The Tribunal in approaching this claim did not consider if the Applicant belonged to a particular social group being ‘homeless men in Sierra Leone’ but instead made a finding of fact that the Applicant was not homeless and would not be homeless if he returned to Sierra Leone.

Identifying the ‘particular social group’ alleged is vital to the accurate application of the applicable law. The identification of a group as a ‘particular social group’ requires identifying a characteristic or attribute common to all members of that group which must be something other than a shared fear of persecution. The possession of that characteristic or attribute must be something which distinguishes that group in a ‘social’ sense.

The federal magistrate then referred to passages in judgments of the High Court concerning the way in which a particular social group was to be defined, particularly by reference to the perceptions of people in the group and of the society in which the group was said to exist.

30    At [103]-[104], the federal magistrate concluded her reasoning on this issue as follows:

There appears to be nothing in the Tribunal’s reasoning which identifies how the social group of ‘homeless men in Sierra Leone’ should be defined. In particular did living in the compound, which the Applicant at one point, referred to as a ‘camp’ change the Applicant’s status? This does not appear to have been addressed. The Applicant’s long history of homelessness seems also to be at odds with the Tribunal’s finding, based on what evidence is unclear, that he would be able to find accommodation in Sierra Leone should he return there.

I am not satisfied that the Tribunal adequately considered what constituted the particular social group to which the Applicant claimed to belong before rejecting that he was a member of such a group.

31    The federal magistrate rejected the second ground of the application to the Federal Magistrates Court, and did not consider it necessary to deal with the fourth ground, because she had decided in favour of the first respondent in relation to the first and third grounds.

The delay issue

32    It is abundantly clear from the authorities that the occurrence of a lengthy delay between a hearing or the receipt of submissions and the making of a decision does not itself constitute error (whether jurisdictional error or other error) on the part of the decision-maker. What is required is the demonstration of some flaw in the process of arriving at the decision, that can reasonably be attributed to the passage of time. This is so whether the decision-maker is a court, a tribunal, or some other administrative official. It is true, as the federal magistrate said, that Heydon J in Aon said that 10 months was an excessive period to reserve an interlocutory judgment on issues relating to the preparation of a case for trial. His Honour’s stern statement followed an express recognition of the absence of a “good explanation” for the delay. His Honour went on at [153] to link the delay with deficiencies in the reasons for judgment, namely:

failure to refer to the affidavit evidence or the cross-examination of ANU’s solicitor, failure to appreciate the gulf between what counsel for ANU said were the reasons for the amendment and what the evidence on the point was, and failure to identify what factors, if any, there were which explained ANU’s failure to appreciate and raise the new claims earlier.

Those deficiencies clearly had more to do with his Honour’s view that the interlocutory judgment should be reversed than did the mere fact of delay. Heydon J appears to have been the only member of the High Court in Aon to deal with the delay issue.

33    In NAIS, the link between delay and jurisdictional error on the part of the Tribunal was that the Tribunal based its decision largely on the absence of credibility on the part of the applicant for a visa with whose case it was dealing. The concern of the court was with the ability of the Tribunal to recall anything about the way in which that applicant had given evidence when several years had passed between the hearing at which the evidence was given and the publication of the Tribunal’s decision. Even so, two members of the High Court dissented. Even where credit is not the issue, there may be a danger that the passage of time will affect unconsciously the process of decision-making and lead to the making of the decision that is easiest to make and express. See Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189 (2004) 140 FCR 17 at 74. The authorities were reviewed by the Full Court in Haros v Linfox Australia Pty Ltd [2012] FCAFC 42 (2012) 287 ALR 507 at [26]-[30]. The Full Court emphasised the need for caution in finding that a judge has denied fairness to a losing party by reason of delay. The Full Court had regard to the practical means that a judge might have of refreshing his or her memory about the evidence and the arguments, so as to ensure that the judgment is sound.

34    In light of these authorities, as counsel for the Minister conceded, the federal magistrate posed the question correctly at [64] of her Honour’s reasons for judgment, when she stated that the issue was whether the delay impaired the Tribunal’s capacity to make an assessment of the credibility of the first respondent or in some other way rendered the decision unsafe. The issue on appeal is whether the federal magistrate answered that question correctly.

35    This is not a case in which the Tribunal resorted to any short cut to a decision, such as rejecting all or a substantial part of the first respondent’s evidence on the ground that it lacked credibility. The Tribunal’s reasons for decision occupy 59 pages and contain 269 paragraphs. They are detailed in terms of the material that was before the Tribunal and in terms of the reasoning on which the decision was based. Far from dismissing the first respondent’s claims on the basis of his credibility, the Tribunal accepted that he was a credible witness. The only issue on which the Tribunal disbelieved the first respondent is his account of the alleged machete attack. The first respondent’s case, both in the Federal Magistrates Court and on appeal, was that the incongruity between the Tribunal’s acceptance of the first respondent as a credible witness at [181] of its reasons for decision (see [18] above) and its rejection of his account of the machete attack at [189] (see [19] above) could only be explained by the delay between the giving of evidence and the preparation of the reasons for decision. This argument was accepted by the federal magistrate at [77]-[78] of her Honour’s reasons for judgment. In addition, her Honour said at [78] that it was hard to see how the Tribunal could have made an assessment of the first respondent’s credibility on the issue of the machete attack so long after having heard his evidence.

36    The difficulty in accepting her Honour’s reasoning is that the Tribunal did provide an explanation of its reason for the apparently incongruous finding about the machete attack. At [189] of its reasons for decision (see [19] above), the Tribunal said that the first respondent was unable to produce any evidence of his admission or stay in hospital or of the injuries he claimed to have sustained. Whether or not this proposition demonstrated a lack of understanding on the part of the Tribunal of the role of, and the need for, corroborating evidence, the fact is that the Tribunal chose to reject the first respondent’s account of the machete attack on this basis. There is no possible connection between the Tribunal’s views about the need for corroboration and the delay between its hearing and its preparation of reasons for decision. The Tribunal did not base its refusal to accept the first respondent’s evidence on this issue on any finding as to his credibility. It refused to accept his account for the reason it gave.

37    It follows that the federal magistrate gave the wrong answer to the question she had posed. Her Honour should not have speculated on the reason for the Tribunal’s finding about the machete incident when the reason for that finding was stated expressly by the Tribunal and was a reason that had nothing to do with delay. Her Honour misapplied the principles relating to delay in decision-making.

The particular social group issue

38    It was utterly wrong of the first respondent to assert, as he did in the third ground of his application to the Federal Magistrates Court, that he had claimed to be at risk of persecution because of his membership of a particular social group, being homeless men in Sierra Leone. It was entirely wrong of him to suggest that he had claimed that such a description of a particular social group should be construed to mean men in Sierra Leone without access to stable, reasonable and safe accommodation. In [15]-[16] above, I have set out the references that the first respondent and his migration agent made to homelessness in the material that was placed before the Tribunal. There was never an assertion that the first respondent was a member of any particular social group of homeless men or that such a group should be defined so as to include men whose accommodation was not stable, reasonable or safe.

39    The claim in the first respondent’s original statutory declaration of 22 December 2008 was to the effect that his homelessness had rendered him vulnerable to attack by members and supporters of the APC and by members of the Tememe tribe in his home village. In the submission of the first respondent’s migration agent to the Tribunal dated 8 February 2010, homelessness was not included among the alleged reasons for his fear of persecution. It was referred to in the preamble to the specification of those reasons as a means by which persecution of him for those reasons could be carried out, namely “rounding up of homeless people...physical assault, and possible death”. The consistent theme was that homelessness was a factor that made the first respondent a more obvious target for his persecutors. There was never an assertion that homelessness (whether by reference to its ordinary meaning or by some extended meaning) was part of a reason for persecution, only that it created opportunities for persecution. The only reference to any extended meaning of homelessness appears to have been in the context of an explanation of the first respondent’s membership of a team playing in the Homeless World Cup. The proposition that, although at the time the first respondent was living in the Youth Movement compound, he was still considered to be “homeless” appears to have been an explanation as to how he qualified for selection in that team. It certainly does not appear to have been an assertion that there existed a particular social group of homeless men, which included men who were not necessarily without somewhere to live, but whose accommodation was of a more precarious nature than might be considered desirable.

40    In these circumstances, the Tribunal took it upon itself to consider whether the factor of homelessness itself might give rise to a claim that the first respondent had a well-founded fear of persecution in Sierra Leone on the basis of his membership of a particular social group based on homelessness. It may have been unnecessary for the Tribunal to embark on this task, but it is difficult to be critical of the Tribunal for doing so. It is even more difficult to be critical of the Tribunal for having embarked on the task without moulding the criterion for membership of the suggested particular social group by reference to some extended meaning of homelessness which happened to fit the circumstances of the first respondent. The first respondent’s evidence was to the effect that he lived in the Youth Movement compound because it was a refuge, and was only in danger if he left the compound alone. It is difficult to see how the Tribunal could have regarded that evidence as supporting a claim that living in the Youth Movement compound justified the first respondent being regarded as a member of a particular social group of homeless people, who were liable to be persecuted for the reason of their membership of that group

41    Having found that the first respondent had not been homeless, according to the ordinary meaning of that word, while living in the Youth Movement compound, and that the first respondent would not be homeless if he were to return to Sierra Leone, the Tribunal was under no obligation to go on and consider whether the ordinary meaning of homelessness should be extended, in order to justify a claim based on a particular social group defined by reference to that extended meaning. As I have said, this was never a case made by the first respondent himself or his migration agent. A finding that the first respondent had not been, and would not be, homeless disposed of the Tribunal’s consideration of the issue of a particular social group related to homelessness. Contrary to the federal magistrate’s statement at [103] of her Honour’s reasons for judgment, the Tribunal did define the particular social group that it considered. It did so in the passage at [262] of its reasons for decision, set out in [21] above, where it referred to “the particular social group of homeless men in Sierra Leone.” All it failed to do was to consider an extended definition, first advanced on behalf of the first respondent at the Federal Magistrates Court. It was not for the federal magistrate to gainsay the Tribunal’s finding of fact that the first respondent was not homeless while he was living at the Youth Movement compound. A single reference to this compound as a “camp” is neither here nor there. Nor was it open to the federal magistrate to question the Tribunal’s finding that the first respondent would be able to find accommodation if he should return to Sierra Leone, on the basis of her Honour’s own view of the evidence as to homelessness.

42    The federal magistrate’s conclusion that the Tribunal had failed adequately to consider what constituted the particular social group to which the first respondent claimed to belong was erroneous.

The unreasonableness issue

43    The origin of the principle of unreasonableness in judicial review of administrative decision-making is the judgment of the English Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230. It is important to understand that that case concerned the exercise of discretion by a local authority as to the conditions it inserted into a licence to conduct entertainment on Sundays. The Court of Appeal held that the particular conditions chosen were open to the local authority in the proper exercise of its discretion. In this context, Lord Greene MR enunciated the principle of unreasonableness in a single sentence:

It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere.

His Lordship went on to say that to prove a case of that kind would require “something overwhelming”.

44    Since that case, there have been many attempts to assert that the principle of unreasonableness can be applicable beyond the exercise of discretion. The difficulties of such a proposition were raised by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 (1999) 197 CLR 611 at [121]-[137] and further explored in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (2010) 240 CLR 611, especially by Crennan and Bell JJ at [121]-[131]. Unreasonableness cannot be established in respect of an issue on which reasonable minds might reach different conclusions.

45    The grant or refusal of a visa is not dependent on the exercise of discretion. Section 65(1) of the Migration Act makes it clear that, if the decision-maker is satisfied that the requisite criteria for the visa had been fulfilled, the visa must be granted and, if not so satisfied, the decision-maker must refuse the visa. It might be relatively easy for a court to say that a case was such that no reasonable decision-maker could have achieved a state of satisfaction. It is much more difficult to envisage a case in which a court could say that no reasonable decision-maker could have failed to reach a state of satisfaction. Attempts to persuade courts to this latter effect usually involve invitations to the courts to conduct their own reviews of the merits of the particular decision by substituting their own satisfaction for the non-satisfaction of the decision-maker, and thereby to usurp the function of the administrative decision-maker.

46    Even assuming that it would be permissible for the Court to apply the unreasonableness principle in the present case, it is a principle that can only be applied to the Tribunal’s decision to affirm the refusal to grant the first respondent a protection visa. It is not a principle applicable to an individual finding of fact. As the Full Court pointed out in NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76 at [42], a single erroneous finding of fact is well short of what is required to constitute jurisdictional error, when the fact concerned cannot be characterised as a jurisdictional fact. In the present case, the factual issue of whether the machete attack had occurred as described by the first respondent was an important part of the first respondent’s case in the Tribunal. If it had occurred, it would have been the sole occurrence that could justify a finding that the first respondent had actually been subjected to serious harm by reason of his political opinion. It could then have formed the foundation for a further finding that, if he were to return to Sierra Leone, the first respondent would be at risk of further serious harm for the same reason. There is no certainty that this additional step would have been taken, however. If it had followed this path of reasoning, the Tribunal might have found that, in light of the first respondent’s low political profile, whatever interest in inflicting harm on him for his political opinion had existed before the first respondent left Sierra Leone might have abated in the meantime.

47    Even supposing that the unreasonableness principle could be applied to a single finding of fact, it is not clear that it would result in the conclusion in the present case that the finding concerned was one that no reasonable decision-maker could have made. The case for unreasonableness is founded on the inconsistency between the general finding that the first respondent was a credible witness and the specific finding that he was not to be believed in relation to the machete attack. For this purpose, it can be supposed that the Tribunal misunderstood the principles relating to corroboration, and wrongly assumed that it could not accept the uncorroborated evidence of the first respondent about the attack. It is still the case that a reasonable decision-maker might have taken the view that, if the first respondent had been struck with the blunt edge of a machete blade and had been reduced to a state that caused his attackers to believe him to be dead, and therefore to desist from the attack, the resulting injuries would have been sufficiently severe to require medical attention. In the absence of evidence of any need to seek medical attention, the reasonable decision-maker might have declined to accept the first respondent’s evidence.

48    The hypothetical reasonable decision-maker might have found other reasons for rejecting the first respondent’s account of the machete attack. He or she might have reviewed the history of the accounts of the machete attack, set out in [10]-[14] above, and concluded that the late raising of the incident and the changing nature of the accounts of it, both as to the time at which it took place and its severity, could be a good reason for not accepting that the incident occurred. If, as I have said, the incident had such importance as being the only occasion on which serious harm was said to have been inflicted on the first respondent by reason of his political opinion, it would seem to have been of sufficient importance to be mentioned in conjunction with the original application for a protection visa.

49    The existence of inconsistency between the Tribunal’s general finding of credibility and its refusal to accept specific evidence does not provide any guide as to how another reasonable decision-maker would have approached the issue. Inconsistency does no more than to suggest that the two conclusions cannot stand together. It does not establish that the reasonable decision-maker would have come to the first conclusion, and therefore could not have come to the second. The reasonable decision-maker might equally not have come to the first conclusion. He or she might have been less generous to the first respondent in relation to the consistency of his accounts of events than was the Tribunal at [181] of its reasons for decision. The very inconsistencies of his accounts in relation to the alleged machete attack might have provided good reason for being less generous.

50    For these reasons, it cannot be said that the federal magistrate would have upheld the fourth ground of the first respondent’s application to the Federal Magistrates Court, if her Honour had seen the need to deal with that ground.

Conclusion

51    The appeal must be allowed. The federal magistrate was in error in relation to both of the grounds on which she decided that the Tribunal’s decision should be quashed. Her Honour’s judgment cannot be upheld by reference to the ground relied on in the first respondent’s notice of contention. The orders made by her Honour must be set aside. There must be substituted for those orders an order dismissing the first respondent’s application to the Federal Magistrates Court.

52    No reason was advanced, and none appears, why the usual principle, that costs follow the event, should not be applied. The first respondent should therefore be ordered to pay the costs of the proceeding in the Federal Magistrates Court and of the appeal.

Associate:

Dated:    29 October 2012