FEDERAL COURT OF AUSTRALIA

SZSFS v Minister for Immigration and Border Protection [2015] FCA 534

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The order of dismissal, being Order 2 of the orders made by the Federal Circuit Court of Australia on 11 December 2014 is set aside.

3.    In lieu of that order, it is ordered that the decision of the Refugee Review Tribunal (Tribunal) made on 1 November 2012 is quashed.

4.    The matter is remitted to the Tribunal for hearing and determination according to law.

5.    The First Respondent is to pay the Appellants’ costs of and incidental to the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1    Subject to qualifications which are not presently material, s 65(1) of the Migration Act 1958 (Cth) (the Act) obliges the First Respondent, the Minister for Immigration and Border Protection (the Minister), to grant a visa if satisfied that particular criteria are met. And the converse applies in the event that the Minister is not satisfied that one or more of the applicable criteria are met. The subsection does not entail the exercise by the Minister of a discretionary power.

2    Some of these criteria are expressly stated in s 65 (health criteria, if applicable and payment of the applicable application charge) but most are stated either elsewhere in the Act or in the regulations made under the Act. In the case of that class of visa known as a Protection Visa, the relevant further criterion is to be found in s 36(2)(a) of the Act. That criterion is that the applicant is “a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”. Thus, as Gummow J observed in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [119] (Eshetu):

The Minister’s satisfaction was an anterior matter, being a component of the condition precedent to the discharge of the obligation to grant or refuse a visa.

3    The First Appellant and, derivatively, his wife and their daughters applied in May 2011 for the granting to them of Protection Visas. That application was refused by a delegate of the Minister, because the delegate was not satisfied that the First Appellant and the members of his family were persons to whom Australia had protection obligations.

4    The Appellants sought the review on the merits of the Minister’s delegate’s decision by the Refugee Review Tribunal (the Tribunal). In conducting such a review, the Tribunal was empowered to exercise all the powers and discretions that were conferred by the Act on the Minister and his delegates: s 415(1) of the Act. As a result, in relation to the obligation created by s 65 of the Act, it was the Tribunal’s satisfaction which became the relevant “anterior matter”. In the result and for reasons which were set out at elaborate length, the Tribunal also was not satisfied that the First Appellant and the members of his family were persons to whom Australia had protection obligations Accordingly, on 1 November 2012, the Tribunal decided to affirm the Minister’s delegate’s decision.

5    An application by the Appellants for the judicial review by the Federal Circuit Court of Australia (Federal Circuit Court) of the Tribunal’s decision was dismissed on 11 December 2014.

6    The Appellants have now appealed to this Court against the orders made by the Federal Circuit Court. The grounds of appeal as originally formulated are not pressed. Instead, the Appellants have sought leave to amend the notice of appeal so as to raise the following as grounds of appeal:

1.    That His Honour in the Court below erred in failing to find that a relevant consideration, namely the unchallenged psychological evidence before the Tribunal, had not been taken into account when assessing the credibility.

2.    That His Honour in the Court below erred in failing to find that the Tribunal had made a decision so unreasonable that no reasonable person would have made it by accepting the diagnosis of an Adjustment Disorder with respect to the Appellant while rejecting the symptoms as a possible explanation for the adverse credibility findings made which were ultimately dispositive of the review.

7    The issues sought to be raised by these proposed, amended grounds of review did not feature in the grounds of review in the judicial review application made to the Federal Circuit Court. This Court does not exercise an original jurisdiction in migration matters of the present kind and litigants ought not to be encouraged to think otherwise: Coulton v Holcombe (1986) 162 CLR 1 at 7 (Coulton v Holcombe). Over a decade ago, in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48] (VUAX), the Full Court, having adverted to Coulton v Holcombe, remarked upon the prevalence in migration matters of endeavours to raise on appeal points not taken in the original jurisdiction. The Full Court held that leave to raise such a point may be granted only if it clearly has merit and permitting it to be raised entails no real prejudice to a respondent. More recently, in MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [101], Jessup J opined that, in addition to whether a fresh point had merit, an adequate explanation for the failure was necessary.

8    More than a decade after VUAX was decided, it is still not uncommon for Appellants to seek to raise a fresh issue on appeal in a migration matter. That is not always because of inattention to what was said in Coulton v Holcombe. Sometimes it is because a visa applicant not legally represented in the original jurisdiction manages, via a pro bono scheme, to secure such representation after the appeal notice has been filed and, for the first time, a person with legal training comes to consider what is, truly, an arguable jurisdictional error in the Tribunal’s decision. On other occasions, and the present on the evidence is one, there was legal representation in the original jurisdiction but the resources of an appellant are such that it is not possible for the services of counsel to settle a notice of appeal to be secured within the applicable appeal period but only afterwards.

9    In cases like the present and in relation to an application for leave to raise on appeal a point not taken below, it is always necessary to remind oneself of a number of matters. The disparity between the resources available to the Minister and an applicant for a Protection Visa is usually likely to be very great. An explanation of the kind proffered by the Appellants may be all that can be proffered. Further, an appeal to this Court is the final means by which, as of right, a Protection Visa applicant may secure a fresh opportunity to press on the merits before the Tribunal a claim for such a visa. Yet further, in terms of the future health, comfort or even life of an appellant, much possibly may turn on whether he or she has that further opportunity, given that the alternative to securing a Protection Visa is leaving Australia.

10    The particular prejudice to which the Minister pointed was the prospect that, having expended public funds in resisting in the Federal Circuit Court a judicial review application advanced on particular grounds and having resultantly secured a costs order in his favour from that court, even though the Appellants abandoned any challenge to that court’s conclusions on those grounds, the appellant might, if the fresh point were to succeed, secure on appeal an order setting aside the costs order made below and, instead, obtain an order subjecting the Minister to a costs liability. As to this, any element of prematurity in considering how, on appeal, a discretion might be exercised in relation to the order for costs made below was obviated by a concession made on behalf of the Appellants that, even if they did come to enjoy success on appeal, the costs order made below ought not to be disturbed.

11    No other type of prejudice was asserted by the Minister.

12    The Minister quite properly conceded that consideration of whether or not to grant leave to amend the notice of appeal would necessarily entail consideration of the merits of the proposed new grounds. The hearing was therefore initially conducted on the basis that submissions in respect of those merits would be treated as submissions in respect of the appeal itself in the event that I was disposed to grant leave to amend. As those submissions progressed, I formed the view that, although read in isolation, proposed ground 1 might be of doubtful merit, read in conjunction with ground 2 and for reasons more particularly given later in these reasons for judgement, the proposed grounds of appeal were at least arguable. In these circumstances, I signified to the parties in the course of the hearing that I was disposed to grant leave to amend the notice of appeal so as to raise the proposed grounds with judgement on the appeal then being reserved.

13    The Appellants are Egyptian citizens. Their application for Protection Visas was based on a claim by the First Appellant that he feared persecution in Egypt because of his political and religious views. An important element of his claim was an asserted fear on his part that, were the family to be obliged to return to Egypt, his daughters would be forcibly circumcised.

14    The reasons of the member constituting the Tribunal reveal that her lack of satisfaction turned on an adverse view which she had formed of the First Appellant’s credibility.

15    The material before the Tribunal included reports concerning the First Appellant by two different clinical psychologists.

16    In a report dated 5 December 2011, Ms Mary Higson, a clinical psychologist of Transcultural Mental Health Centre, recorded an observation made in the course of her interviewing the First Appellant that, “At times, when [he] was most distressed, his thought form was very tangential and he had difficulty in providing a coherent historical narrative. When he was calmer, his thought form was logical.” She opined that he, “appeared to meet ICD-10-AM criteria for F43.2: Adjustment Disorder”. She did not expressly state that the observation mentioned was a characteristic of a person suffering from an adjustment disorder. Ms Higgins had furnished a preliminary report of 26 September 2011 concerning the First Appellant, which also formed part of the material before the Tribunal. It is not necessary, for the purposes of disposing of the present appeal, to quote from that report.

17    The other reporting clinical psychologist was Mr Emad Girgis of EG Pain and Trauma Clinic. In a report dated 1 May 2012 concerning the First Appellant, he opined:

On assessment, [he] presented with symptoms of Depressive mood, anxiety, irritability, insomnia and sleep disturbance, anhedonia, fatigue, lack of self-confidence, decreased appetite, ear of restriction and fear of suffocation, and deteriorated cognitive functions with severe lack of concentration and memory. [He] satisfies the full DSM-IV (Diagnostic and Statistical Manual of Mental Disorder) criteria for a diagnosis of Adjustment Disorder with Anxiety and Depression.

18    Against the background of these two expressions of opinion, the submissions of the parties concerning the merits of the amended grounds of appeal came to focus upon the following paragraphs in the Tribunal’s reasons for decision. In these paragraphs the Tribunal considered and made findings concerning the opinions expressed in the psychologists’ reports concerning the First Appellant:

342.    The Tribunal has considered whether the two reports dated 26 September 2011 and 5 December 2011 from Clinical Psychologist Mary Higgins provide assistance with these matters. The first report suggests that certain tests results may suggest a diagnosis of severe depression or anxiety disorder but that the results should be treated with caution. The second report states that he appears to meet the criteria for Adjustment Disorder, and that he had at some time between October and December 2011 admitted to a hospital for four hours after telling the Ombudsman that he was contemplating suicide. The Tribunal accepts these matters and the diagnosis as at December 2011.

343.    From the contents of the reports, it was clear that the psychologist was aware that he was involved in presenting his case to the Tribunal. She did not suggest that he was unable to give evidence or understand the proceedings, the interview with the delegate, or the application form. None of the medical/psychological reports made this suggestion. The applicant did not suggest that he could not understand the Tribunal proceedings although he claimed not to understand that he had to present all of his case to the delegate or in the application form. The Tribunal finds that the applicant was able to understand the proceedings at each of the hearings and was able to participate in the same, and that he was able to understand the application form and the purpose of the interview with the delegate and participate in the latter.

344.    The reports suggest that the applicant can sometimes get excited and not provide coherent information, that when he is distressed his thought form can be tangential, he can have difficulty in providing a coherent narrative, and that he demonstrated insight that his conversation could jump from topic to topic. The reports also said that he was able to speak English fluently and his attention and concentration appeared to be intact.

345.    The Tribunal has also had regard to other medical/psychological evidence provided in relation to the applicant. The Tribunal notes that the applicant provided evidence that he was under psychiatric care in Malaysia as a result of stressful events in Malaysia and the Tribunal accepts that he was under such care before he came to Australia. He has also provided evidence from his GP (Dr Sanaa Guirguis in January 2012) that he was suffering from severe anxiety and depression due to a lot of family problems and his worries about returning to Egypt; that in March 2012 he was depressed and anxious (Vicky Staunton); and that his GP had referred him to a (different) psychologist (Emad Girgis who provided a letter dated 1 May 2012) who he had seen the applicant (on an unknown date) and that the applicant satisfies the DSM-IV criteria for a diagnosis of Adjustment Disorder with Anxiety and Depression. The Tribunal accepts this diagnosis as it appears to have been based on psychological tools and it is consistent with the other diagnoses provided. The report says that the applicant has experienced “severe lack of concentration and memory”, claustrophobia, and a fear of being in the presence of an authority figure. The psychologist does not indicate how he came to these conclusions other than what the applicant has told him. The Tribunal notes that the letter provided by this psychologist for the wife contains information relating to another person (Ms Khalil) and the letter for the applicant refers to the applicant’s fear of being prosecuted if he returns to Egypt which is not a claim the applicant has made during the process. Thus although the Tribunal is prepared to accept the diagnosis made by the psychologist, it is not prepared to accept that the report is independent corroborative evidence that the applicant has experienced “severe lack of concentration and memory”, claustrophobia, and a fear of being in the presence of an authority figure as it appears based only on what the applicant told the psychologist.

346.    Accordingly, on the basis of the above evidence the Tribunal accepts that the applicant has suffered mental health issues before he came to Australia, Adjustment Disorder in 2011, and Adjustment Disorder with Anxiety and Depression in 2012. The Tribunal appreciates that the applicant has been anxious about his wife’s pregnancy, the family’s financial circumstances in Australia, and the outcome of the protection visa application process from the start and that he continues to be anxious. The Tribunal has also considered vague references in the 10 June 2012 submission possibly suggesting that there was a lack of communication/understanding in the Tribunal hearings. However, the Tribunal has had a significant opportunity to take evidence from the applicant and the Tribunal considers that he was eloquent, intelligent, articulate, able to express himself and to tell the Tribunal when he did not understand a question. The Tribunal provides significant weight to the diagnoses and has considered the references in the submission however the Tribunal does not accept that the reports provide a satisfactory explanation for the applicant to omit significant part(s) of his claims or inconsistent and contradictory evidence given by the applicant.

19    Also to be noted is paragraph 419 of the Tribunal’s reasons in which, materially, the Tribunal member reiterated her acceptance that the First Appellant and his Wife were suffering from Adjustment Disorder with Anxiety and Depression.

20    Two propositions were common ground between the parties. One was that findings as to credibility were, “par excellence” for the Tribunal in the exercise of its merits review jurisdiction: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67]. The other was that the reasons of an administrator or administrative body such as the Tribunal are not to be read narrowly and with an eye for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272.

21    These propositions are well settled. To violate them in the exercise of an original, judicial review jurisdiction is to embark, impermissibly, on a path leading to merits review. That is no less true in the exercise of appellate jurisdiction with respect to a judgement given on a judicial review application. To approach matters otherwise is to put at risk the legitimacy of an exercise of judicial power in relation to a decision the making on the merits of which Parliament has consigned to an officer of the Executive: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 38 per Brennan J (Quin).

22    Because this is an exercise of appellate, not original jurisdiction and the grounds of appeal as amended were not issues before the Federal Circuit Court, to allow the appeal entails finding that, even though no error is asserted in the conclusions reached by the learned primary judge with respect to the grounds of review, the Tribunal’s decision was nonetheless attended with a jurisdictional error such that the order which ought to have been made by that court was to quash the Tribunal’s decision, not to dismiss the judicial review application. At first blush, that may seem odd but it is necessary to remember that the appeal is against the order of dismissal made by the Federal Circuit Court, not the reasons for judgement for that order: Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145 at [85] (Minister for Immigration and Border Protection v SZSNW), per Buchanan J, Mansfield and Perram JJ agreeing.

23    As to the first of the amended grounds of appeal, the Minister submitted that, in the sense described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend), the psychological evidence did not constitute a “relevant consideration”. In that case, Mason J stated, at 39-40:

(b)    What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45, at pp 49-50, adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury (1937) 56 CLR 746, at pp 757-758, and Water Conservation and Irrigation Commission (N.S.W.) v. Browning (1947) 74 CLR 492, at p 505). By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.

24    Neither expressly nor by necessary implication was the Tribunal obliged by the Act to take into account psychological evidence. In this sense, the psychological evidence was not a “relevant consideration”. That though is not the end of the matter, because it became apparent in the course of submissions that the Appellants did not intend that, as used in amended ground 1, “relevant consideration” should be read in this technical sense.

25    The sense in which the Appellants intended “relevant consideration” to be read is best addressed in the context of dealing with another criticism made by the Minister of the Appellants’ amended grounds. As to amended ground 2, it was put on behalf of the Minister that reliance by the Appellants on Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) in support of that ground was misconceived, because the provision under consideration in that case conferred a discretionary power, whereas, as noted above, the Tribunal, standing in place of the Minister in the exercise of its review jurisdiction, was concerned with an “anterior matter” namely, a state of satisfaction on the result of which a consequential statutory obligation depended.

26    The submission made by the Minister corresponded with the critique of the prosecutor’s formulation of his case offered by Gummow J in Eshetu at [119] to [137]. In that critique, Gummow J highlighted that the statutory regime in relation to a Protection Visa, materially the same as that applicable in this case, did not entail the exercise of a discretionary power but rather a provision the operation of which depended upon a state of administrative satisfaction with respect to particular matters. His Honour drew this distinction so as to demonstrate why, in his view, reliance by the prosecutor upon what was said by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229-231 (Wednesbury) was misconceived, because those statements concerned unreasonableness in the exercise of a discretionary power. As Gummow J explained (Eshetu, at [136]), that did not mean that a decision with respect to such “satisfaction” could not be effectively challenged on judicial review but that such review occurred not on the basis of “Wednesbury unreasonableness” but rather on the basis explained by Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119 (Buck v Bavone):

In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.

27    The Appellants accepted that the psychological evidence was not a “relevant consideration” in the Peko-Wallsend sense but stated that it was not intended that it be regarded as such in amended ground 1. Rather, that evidence, so it was submitted, was a relevant matter the treatment of which by the Tribunal in its reasons for decision demonstrated either that it had not truly been taken into account or grounded a conclusion as to absence of satisfaction which was unreasonable in the sense described by Gibbs J in Buck v Bavone. Further, so the submission went, the discussion of unreasonableness in Li ought at least to inform what amounted to unreasonableness in a conclusion by the Tribunal as to an absence of the requisite “satisfaction”.

28    That s 65(1) of the Act does not entail the exercise of a discretionary power may be accepted. Even so, having regard to the following passage in the joint judgement of Hayne, Kiefel and Bell JJ in Li (at [68]), that feature is not a basis for discarding as irrelevant the statements made by Lord Greene in Wednesbury in relation to unreasonableness:

Lord Greene MR’s oft-quoted formulation of unreasonableness in Wednesbury has been criticised for “circularity and vagueness”, as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about review of an administrative decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation, which was decided less than two years after Wednesbury, at a time when it was the practice of the High Court to follow decisions of the Court of Appeal in England which appeared to have settled the law in a particular area.

[Footnote references omitted]

29    Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 (Avon Downs), to which Hayne, Kiefel and Bell JJ refer in this passage in Li, concerned not the exercise of a discretionary power but rather a provision the operation of which, like the present, depended upon an officer of the Executive being “satisfied” as to particular matters. Further, even though, in Buck v Bavone, Gibbs J did not, in the passage set out above, expressly cite Avon Downs, the way his Honour cast his summary of the bases of judicial review of a decision as to “satisfaction” makes it inherently likely that he had in mind what Dixon J had said in Avon Downs (at 360). In turn, what Dixon J said in Avon Downs was, as Hayne, Kiefel and Bell JJ stated in Li, “evidently informed” by the same principles as had been stated by Lord Greene MR in Wednesbury. In these circumstances, the excerpting of passages from either Avon Downs or Wednesbury would be repetitious.

30    In short then, there is, in public law, a confluence in terms of the content of the ground between the judicial review of the exercise of a discretionary power on the ground of unreasonableness and the judicial review on a like ground of a decision as to “satisfaction” which forms an “anterior matter” in relation to the operation of a statutory provision. That this followed from Li, was, accepted by Mansfield J (at [15]) in Minister for Immigration and Border Protection v SZSNW. It is also inherent in the Full Court’s citation, by way of example, of Avon Downs, in Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280 at [45] (Singh), a case which concerned an exercise of a discretionary power.

31    In Singh, the Full Court (at [47]) expressly left open a question as to whether there was any distinction to be drawn between “reasonableness review which concentrates on the outcome of the exercise of power and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power”. Any such distinction may well be elusive, for a reasoning process flawed by an error ground identified, for example, in Buck v Bavone, may yield an outcome which is unreasonable. And the same may hold true in relation to a conclusion as to an “anterior matter” such as “satisfaction”. What Singh (at [47]) counsels is that, “where there are reasons for the exercise of a power, it is in those reasons to which a supervising court should look in order to understand why the power was exercised as it was”. The same must hold true in this case in relation to a decision where the Tribunal furnished reasons why it was not “satisfied” that the First Appellant was a person to whom a protection obligation was owed. In either circumstance, it must be recalled that the power or, as the case may be, the task of being “satisfied” has been consigned by Parliament to an officer of the Executive, not to the Judiciary. For a judge to go beyond the justification given by that officer may be seen as an exercise of that power or a conclusion as to satisfaction by someone to whom that task is not entrusted. And that is something, for all of the reasons given by Brennan J in Quin, a judge must not do.

32    On these bases, I turn to a consideration of the reasons given by the Tribunal and, in particular, the passages excerpted above.

33    In her 5 December 2011 report, Ms Higgins did not, in terms, state what were the symptoms of the Adjustment Disorder from which she diagnosed the First Appellant was suffering, although it may inferentially be possible to glean those symptoms by reading that report in conjunction with her earlier report. Whether to draw such inferences was a matter of fact for the Tribunal. One fact which the Tribunal did find, based on Ms Higgins’ opinion, was that the First Appellant was suffering from the diagnosed condition of Anxiety Disorder as at December 2011.

34    The symptoms of “Anxiety Disorder with Anxiety and Depression” are made explicit (paragraph commencing, “On assessment”) in Mr Girgis’ report of 1 May 2012. This diagnosis the Tribunal also accepted. This, too, was a finding of fact which it fell to the Tribunal to decide whether or not to make. In so doing, the Tribunal expressly adverted to the symptoms mentioned by Mr Girgis, including “severe lack of concentration and memory”. Though the Tribunal accepted Mr Girgis’ diagnosis, it did not regard the report as “independent corroborative evidence” of that symptom. One plank of the Appellants’ submission as to unreasonableness was that, irrespective of whether the report was “independent corroborative evidence” (a conclusion conceded to be open as a matter of fact to the Tribunal), if one accepted the diagnosis, one necessarily accepted that the First Appellant did indeed have the symptoms of that condition.

35    This point was further developed in the Appellants’ submissions by reference to para 346 of the Tribunal’s reasons. Here, too, is to be found an acceptance by the Tribunal that the First Appellant suffered from the diagnosed “mental health issues” in 2011 and 2012. At the same time, the Tribunal adverted to the “significant opportunity” which the Tribunal had had to take evidence from the First Appellant. The Tribunal recorded its observation, based on this opportunity, that he was “eloquent, intelligent, articulate, able to express himself and tell the Tribunal when he did not understand a question”. In light of this and notwithstanding that it gave “significant weight” to the diagnoses and a related submission that the diagnosed conditions explained the way in which the First Appellant gave his evidence, the Tribunal did not accept that the reports of Ms Higgins and Mr Girgis provided a “satisfactory explanation” for the omissions, inconsistencies and contradictions which the Tribunal considered (for reasons elsewhere given) were a feature of his evidence.

36    The Appellants’ case was that there was thus revealed an inherent tension in the Tribunal’s reasoning. One could not on the one hand note of specialist opinion evidence that the opinions expressed were based on an uncorroborated factual foundation, depending solely on self-reporting by the First Appellant, nonetheless accept the resultant diagnoses (and the symptoms of the condition), give them “significant weight” and, at the same time, based on lay observations in the course of his evidence, form a quite different view of the First Appellant. Further, to accept the diagnosis of Mr Girgis was also to accept, so the submission went, its factual premises. Yet the Tribunal (at paragraph 345) discounted one of those premises, which was ““severe lack of concentration and memory”, claustrophobia and a fear of being in the presence of an authority figure”. Either one discounted the opinions on the basis that they depended on a factual foundation completely inconsistent with those observations or, if one accepted them, ought to have found in them an explanation for the First Appellant’s evidence. In a case where so much depended on the credibility of the account given by the First Appellant, the Tribunal’s reasons for why it was not satisfied that a protection obligation was owed to the First Appellant and his family disclosed, so the submission progressed, a conclusion which was unreasonable. Part of this submission was that, in reaching that conclusion, the Tribunal had not considered the ramifications of accepting the diagnoses and the symptoms of the conditions. It was submitted that it was in this fashion that a relevant consideration, in the sense used in the ground of appeal, had not, truly, been taken into account.

37    A like process of reasoning entailing acceptance of diagnoses and yet not accepting these as explanatory of the evidence given is evident in the way the Tribunal dealt with and reached adverse conclusions concerning the evidence of the First Appellant’s wife (see paragraphs 347 to 351).

38    The Minister’s riposte was that this submission involved an overly critical analysis of the Tribunal’s reasons and that all that was entailed was an evaluative factual assessment which acknowledged the diagnosed conditions but did not find them wholly explanatory of the evidence of the First Appellant (and that of his wife) and the inconsistencies and omissions noted by the Tribunal.

39    In Li, at [30], French CJ opined that “a distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable”. It was not necessary in that case to resolve whether such a distinction is able to be drawn; nor is it necessary in this case. In this case, it is the converse which is raised, that is, whether the reasons exhibit irrationality such that the absence of satisfaction was unreasonable such that the resultant affirmation of the refusal of Protection Visas was attended with jurisdictional error in respect of this “anterior matter”. In that same case and in the context of jurisdictional error in the exercise of discretion, also at [30], French CJ equated irrationality and unreasonableness, citing as an example, the use of a sledgehammer to crack a nut. Irrationality or unreasonableness may not only be found in a disproportionate response. It may also be found in an exercise of a discretion which is arbitrary, vague and fanciful or beyond the bounds of reason. This was, in my view, the point made, by reference to earlier authority, by Hayne, Kiefel and Bell JJ in Li at [64]-[65]. For reasons already given, I consider that this understanding of what may amount to unreasonableness is also applicable to unreasonableness in a conclusion as to whether an administrative decision-maker such as the Tribunal is or is not satisfied with respect to a particular matter.

40    Even giving full weight to the restraint counselled in Wu Shan Liang and in Quin, and especially accepting that it is no part of my function to conduct merits review, I regard the manner in which the Tribunal has dealt with the evidence of Ms Higgins and Mr Girgis, with all due respect to the Tribunal member concerned, as an irrational basis for the discounting of the credibility of the First Appellant and his wife, for just the reasons developed by the Appellants in submissions. Had the Tribunal discounted the opinions of Ms Higgins and Mr Girgis because they were based on self-reported conditions quite inconsistent with the Appellants’ observed demeanour when giving evidence that would have been rational. That is not what the Tribunal did.

41    Of course it might be said that irrational findings concerning psychological conditions and observed demeanour were but part of lengthy, elaborate reasons given by the Tribunal. The difficulty with this is that so much in relation to the claims made by the First Appellant depended upon an assessment of his and his wife’s credibility. And the Tribunal discounted for reasons which I regard as irrational an explanation for the inconsistencies and omissions in evidence which informed its view as to their credibility. In these circumstances, the appeal would have to be allowed and the Tribunal’s decision quashed, unless the error, “could not possibly have produced a different result”: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [5] per Gleeson CJ, [80] per Gaudron and Gummow JJ, [104] per McHugh J, [131]-[133] per Kirby J, [172] per Hayne J and at [211] per Callinan J. I am not persuaded that the result of the review application could not possibly have been affected.

42    It follows that the appeal must be allowed, with costs, the decision of the Tribunal quashed and the matter remitted to the Tribunal for rehearing according to law. In accordance with the agreement reached, the order for costs made in the court below will not be disturbed.

Associate:    

Dated:    29 May 2015