FEDERAL COURT OF AUSTRALIA

SZVBT v Minister for Immigration and Border Protection [2017] FCA 355

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1    The now-Appellant arrived in Australia on a tourist visa on 27 May 2013. He is a citizen of China.

2    He made an application for a Protection (Class XA) visa on 23 August 2013. That application was refused by a delegate of the Minister on 6 March 2014. An application for review of the delegate’s decision was then filed with the former Refugee Review Tribunal. That Tribunal affirmed the delegate’s decision on 19 August 2014.

3    An application seeking review of the Tribunal’s decision was then filed with the Federal Circuit Court of Australia on 16 September 2014. That Court dismissed that application on 29 September 2016: SZVBT v Minister for Immigration & Anor [2016] FCCA 2203.

4    The Appellant now appeals to this Court.

5    The Grounds of Appeal are expressed (without alteration) as follows:

1.    The Tribunal has denied me of procedural fairness by failing to provide adequate reasons for the finding of a fact.

2.    The Tribunal has made an illogically conclusion based on I didn’t provide my brother’s death certificate even I provide other evidence to certify my brother’s death.

3.    Federal Circuit Court of Australia did not allocate an interpreter to me, I did not understand what they said.

6    Before this Court the Appellant appeared in person, with the benefit of an interpreter. In summary form, his oral submissions contended that the Tribunal:

    “did not assess my application with care”, variously expressed as a contention that the Tribunal was in a “hurry” and was not fair;

    erred because there were no “reasonable grounds” upon which the application could be refused; and

    failed to inform him that his credibility was in issue.

The Appellant further maintained that:

    the hearing before the Federal Circuit Court was flawed by reason of an alleged failure to provide an interpreter for the purposes of the final hearing in August 2016, the contention being that his role was confined to simply “observing” the judicial process.

7    The Respondent Minister appeared before this Court by Counsel.

8    The appeal is to be dismissed with costs.

The adequacy of the Tribunal’s reasons

9    The first Ground of Appeal does not identify any appellable error said to have been committed by the Federal Circuit Court. As expressed, it is but an invitation to this Court to place to one side the decision of the Federal Circuit Court and for this Court to form its own view as to the adequacy of the Tribunal’s reasons for decision.

10    Such an approach is to be firmly rejected. To pursue such a course would be to impermissibly reduce the proceedings before the Federal Circuit Court to a “preliminary skirmish”: Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ. See also: Sobey v Nicol and Davies, in the Matter of Guiseppe Antonio Mercorella [2007] FCAFC 136 at [72], (2007) 245 ALR 389 at 403 to 404 per Branson, Lindgren and Besanko JJ.

11    This Ground has, however, been construed as intending to convey the argument that the Federal Circuit Court erred in not accepting the contention advanced before that Court as to the inadequacy of the Tribunal’s reasons.

12    As a statement of general principle, it may readily be accepted that the requirement that an administrative decision-maker gives reasons is an important part of the discipline imposed upon the decision-maker to carefully “think through” the basis upon which findings of fact are made and the reasoning as to why those facts lead to particular conclusions. Reasons “encourage good administration generally by ensuring that a decision is properly considered by the repository of the power”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 at [105], (2003) 216 CLR 212 at 242 per Kirby J. Reasons also serve the important function of informing the parties as to why a decision has been made: Re Palmer and Minister for the Capital Territory (1978) 1 ALD 183. The Tribunal in that case, constituted by Fisher J, Senior Member Hall and Member Woodley there observed in respect to ss 28 and 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (at 192 to 193):

The obligations imposed by s 28 and s 37 are a crucial feature of the current right of the citizen to obtain from an impartial Tribunal a review of an administrative decision, and where appropriate the substitution by that Tribunal of another decision. The purpose of the supply of reasons was well stated by Megaw J in Re Poyser & Mills’ Arbitration [1964] 2 QB 467 at 477 . His Lordship had this to say in respect of the corresponding section of the Tribunals and Inquiries Act 1958 which requires, it is to be noted, only a statement of the reasons for the decision: “The whole purpose of s 12 of the Tribunal and Inquiries Act 1958 was to enable persons whose property, or whose interests, were being affected by some administrative decision or some statutory arbitration to know, if the decision was against them, what the reasons for it were. Up to then, peoples’ property and other interests might be gravely affected by a decision of some official. The decision might be perfectly right but the person against whom it was made was left with the real grievance that he was not told why the decision had been made. The purpose of s 12 was to remedy that …. Parliament provided that reasons shall be given and in my view that must be read as meaning that proper, adequate reasons must be given.”

A little later, the Tribunal further observed (at 193):

It is important to note that neither s 28 nor s 37 requires that the relevant “evidence or other material” be “set out” in the statement, only that it be referred to. Moreover, the citizen’s entitlement to be fully informed was not merely an incident arising in the course of and for the purpose of a review by this Tribunal. It is a right which arises consequent upon a decision being made which is capable of being so reviewed, and the reasons, when properly given, ensure that the citizen is sufficiently informed to determine whether he wishes to take the matter further, and if so whether to make representations to the Minister, proceed in the appropriate court of law or to seek a review by this Tribunal. It follows that to achieve this end the reasons must, in the words of Megaw J in Re Poyser & Mills’ Arbitration, supra, at 478 , “be reasons which will not only be intelligible but which deal with the substantial points that have been raised”.

13    In the circumstances of the present decision-making process, the importance of the Tribunal providing findings of facts and reasons has been reinforced by the Commonwealth legislature. Section 430(1) of the Migration Act 1958 (Cth) (the “Migration Act”) thus provides as follows:

Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:

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

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

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

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

(e)    in the case of a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm the dismissal of an application—indicates that under subsection 426A(1F), the decision under review is taken to be affirmed; and

(f)    records the day and time the statement is made.

14    As a statement of general principle, it may also be readily accepted that findings as to credibility are regarded as findings of fact par excellence: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], (2000) 58 ALD 609 at 625. But such findings are findings of fact the same as any other fact: cf. SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198. Gordon J there observed:

[25]    Notwithstanding the breadth of the Tribunal’s discretion to make weight and credibility determinations, the requirement described in [WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74, (2004) 80 ALD 568] to make those determinations “judicially” imposes limits that credibility and weight determinations be made rationally and logically, and be articulated properly. It is worth noting in this context that such requirements are not unique to Australia. Indeed, the United States Court of Appeals for the Ninth Circuit has stated that for a migration Tribunal’s adverse credibility finding to survive appellate scrutiny, there must be a “legitimate articulable basis” for the Tribunal’s finding and the Tribunal “must offer a specific, cogent reason for any stated disbelief”: Stoyanov v INS (9th Cir 1999) 172 F3d 731, 736 (internal citations and quotation marks omitted). The Court in Stoyanov went on to state that “minor inconsistencies cannot support an adverse credibility finding” and that “trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible”: Stoyanov at 736 (internal citations and quotation marks omitted).

“[A]dverse findings as to credit by the Tribunal”, accordingly, “do not shield its decision-making processes from scrutiny”: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J. See also: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [41] to [44] per McKerracher, Griffiths and Rangiah JJ. It is thus not sufficient for an administrative decision-maker to simply set forth an adverse finding as to credibility without also setting forth the basis upon which that assessment has been made: cf. Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121 per Robertson J; SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089 at [23], (2015) 233 FCR 451 at 457 per Flick J; APP15 v Minister for Immigration and Border Protection [2016] FCA 493 at [23], (2016) 69 AAR 202 at 208 per Logan J.

15    In the context of the present proceeding, it is understood that the asserted inadequacy in the Tribunal’s reasons is to be found in the Tribunal’s findings as to:

    the reasons for the Appellant’s brother’s death; and

    the reasons for the Appellant’s arrest.

The “[g]rounds of application” before the Federal Circuit Court summarised the criticisms made of the Tribunal’s reasons and stated (without alteration) that the “RRT should be impose an obligation to give reasons to any administrative decision, otherwise the decision maker would make any wild finding of a fact at will and the justice would surely be undermined”.

16    As observed by the Federal Circuit Court Judge, the Tribunal’s decision was “not an example of pellucid reasoning” and that its “chain of reasoning is quite hard to follow”: [2016] FCCA 2203 at [28]. That Court further noted that the Tribunal “accepted many of the applicant’s factual claims but nevertheless, and quite obscurely, repeatedly referred to its assessment of the applicant’s ‘general credibility’ to find that he was not a reliable witness and to reject other claims, apparently on that basis”: [2016] FCCA 2203 at [18]. That criticism of the Tribunal’s decision and reasoning is well-justified.

17    Free of any decision of the primary Judge, it may have been that a judge of this Court would have reached a different conclusion as to the adequacy of the Tribunal’s reasons. Even though it may be possible to parse and analyse the Tribunal’s reasons such that its ultimate conclusion may be understandable, what remains truly worrying – especially in this area of decision-making frequently affecting persons with limited education and limited understanding of English – is the lack of a readily understandable explanation. The general function of an obligation to provide reasons is to “inform” those affected. And the adequacy of reasons is to be judged by reference to the statutory context in which decisions are made. Complexity of reasoning in commercial matters may be anticipated where facts and law are themselves complex; in a legislative setting such as the Migration Act, reasons must be structured such that they are “intelligible” (Re Palmer (1978) 1 ALD at 193 to 194) to those persons to whom they are directed, namely the claimants. Statutory provisions requiring reasons to be provided are to be construed as requiring a “clear obligation to explain … decisions in terms which can be understood by the people affected by those decisions”: Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 at 67 per Woodward J.

18    Even if it were possible (with some degree of care and difficulty) to distil from an administrator’s statement of reasons those findings of fact and those reasons which have led to an ultimate conclusion, reasons may still expose jurisdictional error in the present statutory context if they are so structured and set out that they are not “intelligible” because they fail to explain in understandable terminology why an application for a protection visa has been unsuccessful. Even where a document may contain all necessary findings of fact and all the reasoning as to why those facts have led to a particular conclusion, jurisdictional error may be exposed where the findings and reasons are presented in such a manner that they remain confusing and confused to the audience to which they are directed. The purpose sought to be achieved by a legislative requirement to provide reasons is certainly hindered in such circumstances.

19    But in the present case, the primary Judge has carefully:

    extracted the findings as to credibility made by the Tribunal member; and

    set forth the basis upon which those findings could have been founded.

Also of importance in understanding the Tribunal’s reasons, and the conclusion of the Federal Circuit Court Judge whose decision is presently being appealed is:

    the “[s]ummary of findings of fact” set forth by the Tribunal at paras [40] and [41] of its reasons for decision, which at least provides a “road map” whereby the balance of its findings may be more readily understood.

Future cases may well dictate a need for greater scrutiny by the Federal Circuit Court of the reasoning process of the Tribunal. A more exacting standard of explanation may be appropriate, the explanation of course depending upon the facts and circumstances in need of resolution. But, confined to the facts of the present case, no appellable error has been exposed by the reasons for decision of the Federal Circuit Court Judge.

20    Had it been necessary to form an independent conclusion in respect to the adequacy of the Tribunal’s reasons, it would most probably have been concluded that they were “intelligible”, albeit with considerable difficulty. It is the presence of paras [40] and [41] of the Tribunal’s reasons which “tie together” those strands of reasons and findings which are to be found elsewhere.

21    The first Ground of Appeal is thus rejected.

An illogical conclusion

22    The second Ground of Appeal, as drafted, suffers from the same criticism as the first Ground, namely that as expressed it is merely an invitation for this Court to ignore the reasons of the Federal Circuit Court and reconsider the issue. The second Ground, however, has similarly been construed as an argument that the Federal Circuit Court erred in not finding that the conclusion of the Tribunal was “illogical”.

23    Although there is scope on an application for judicial review to set aside an administrative decision because it is “unreasonable”, “illogical” or “irrational”, the scope for judicial intervention is limited.

24    At least three propositions need to be kept firmly in mind.

25    First, the fact that a Court, when entertaining an application for judicial review, may disagree with the administrative decision is not enough: Ekinci v Civil Aviation Safety Authority [2014] FCAFC 180, (2014) 227 FCR 459 at 482. Bennett, Nicholas and Griffiths JJ there referred to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332 and observed:

[72]    There is nothing in Li which contradicts the view previously expressed by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] that it is not the Court’s function to substitute its own decision for that of the primary decision-maker:

… Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn …

26    Secondly, to make out a case of irrationality or unreasonableness it is not enough to show that a conclusion is one upon which reasonable minds may differ. Thus, for example, Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, (2016) 69 AAR 210 at 221 drew upon some other judicial observations to this effect as follows:

[52]    As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or [ir]rationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

27    Thirdly, and again as noted by Wigney J in SZUXN, even if an aspect of reasoning or a finding is shown to be irrational, that may not be sufficient to establish vitiating jurisdictional error. His Honour there summarised the position as follows (at 221):

[55]    Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO [v Minister for Immigration and Border Protection [2016] FCA 51] at [64]–[67].

28    It is to be noted that these observations of Wigney J in SZUXN have been approved by the Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [60].

29    Albeit not contained in the “[g]rounds of application”, the Federal Circuit Court addressed an argument that unreasonableness or irrationality was exposed by the Tribunal’s findings that the now-Appellant was not a “reliable witness”. That argument seemed to emerge at least as early as the show cause hearing before that Court in August 2015. However the argument arose, it was resolved. The argument there advanced focussed upon the findings of the Tribunal in respect to:

    the failure to provide a death certificate for the brother (at para [17]); and

    the delay in applying for a protection visa (at para [39]).

30    The former paragraph of the Tribunal’s reasons provides as follows:

[17]    At the Tribunal hearing I had put to the applicant (words to the effect), that I may consider the truth of his claims. That said, he had not sought to lodge with the Tribunal the one document (allegedly being held by his family in China) that might have corroborated his claim that his brother had died in the manner claimed. I do not accept his explanation that he did not lodge this document in support of his Protection visa application as he believed the other documents were sufficient (ie the Certificate of Cremation Completion and a Cancellation of Household of the Deceased). I accept they corroborated the death, but not the reasons for the brother’s death. This is one of the reasons that has caused me to reject that the brother died in the way alleged by the applicant or that the brother was arrested at the protest as the applicant claimed. It is also one of the reasons that ultimately satisfied me the applicant was not a reliable witness.

The latter paragraph follows a statement that the now-Appellant arrived in Australia in May 2013 and applied for a protection visa in August 2013 and provides as follows (without alteration):

[39]    This is a further reason that has satisfied me the applicant’s material claims are false; as if he feared persecution for the reasons he claimed, I may commonly anticipate that his actions to formalise his migration status (ie to seek protection) would have been more immediate (particularly if his family were being harassed for the reasons he claimed). At any rate, this is a further reason that has satisfied me he applicant is not a reliable witness.

These were the two paragraphs of the Tribunal’s reasons which expressly made reference to the reasons to question whether the now-Appellant was “a reliable witness”.

31    The Federal Circuit Court Judge concluded that these paragraphs did not disclose any unreasonableness or irrationality. No appellable error on the part of that Judge in so concluding has been exposed.

32    Neither the first nor second Ground of Appeal expose any failure on the part of the Tribunal to determine the claims made with “care” or show that the Tribunal was in a “hurry” to resolve the claims made.

33    The second Ground of Appeal is rejected.

Failure to advise that credibility was in issue

34    An argument advanced orally by the Appellant at the hearing of his appeal before this Court was that the Tribunal was “obliged” to advise him that his credibility was in issue and that it failed to do so.

35    This was an argument not previously advanced before the Federal Circuit Court.

36    No leave should be granted to raise this additional argument for either of two reasons.

37    First, it is an argument without any self-evident merit. As the introductory words to para [17] of the Tribunal’s reasons make apparent, the now-Appellant was put on notice by the Tribunal that it “may consider the truth of his claims”.

38    Secondly, while leave may be granted to a party to raise an argument on appeal which has not previously been relied upon, leave is typically refused in those circumstances where the opposing party may suffer prejudice by being denied the opportunity to adduce evidence to address the argument: cf. Dart Industries Inc v Decor Corporation Pty Ltd (1989) 15 IPR 403 at 416 per Lockhart J. In the present proceeding, had the argument previously been raised, it would have been open to the Respondent Minister to seek to tender (inter alia) the transcript of the proceeding before the Tribunal. As the introductory words to para [17] make clear, there was at least one occasion where the Tribunal “put to the applicant (words to the effect), that I may consider the truth of his claims”. There may have been other occasions. But the argument not having been previously advanced, the Respondent Minister has been denied the opportunity to address such an argument and would suffer prejudice should the argument now be relied upon.

The failure to allocate an interpreter

39    The third and final Ground of Appeal is without substance.

40    This Ground has been construed as an argument that the Appellant was denied procedural fairness before the Federal Circuit Court by reason of the failure to allocate an interpreter.

41    Before the former Refugee Review Tribunal he was assisted by an interpreter in the Mandarin and English languages.

42    No complaint was raised before the Federal Circuit Court as to any inadequacy in the standard of interpreting then provided. No ground of review was raised before that Court as to any inadequacy in the standard of interpreting.

43    The argument now advanced is that there has been a denial of procedural fairness before the Federal Circuit Court. The argument could potentially seize upon:

    the show cause hearing on 27 August 2015, when the Appellant was not represented by Counsel but had the assistance of an interpreter; and/or

    the hearing on 25 August 2016, when the Appellant was represented by Counsel.

If the argument be confined to an argument that no interpreter was provided, that argument fails in respect to the hearing on 27 August 2015. An interpreter was then provided.

44    It is the latter hearing, however, which assumes importance because it was on that day that the now-Appellant was given an opportunity to advance arguments in support of his contention that the decision of the Tribunal was vitiated by jurisdictional error. It was presumably with reference to this hearing that the Appellant maintained in his oral submissions that he was reduced to merely “observing” the proceeding.

45    In resolving the final Ground of Appeal, it is to be recalled that the object and purpose of providing interpreters is to ensure that a claimant is given an opportunity to be heard, that being a meaningful opportunity to understand the case made against him and an opportunity to answer that case and to present his own case for resolution: cf. SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [9], (2013) 219 FCR 212 at 215 per Allsop CJ. On the facts of the present case, such an opportunity was provided before the Federal Circuit Court in circumstances where:

    the grounds of review challenging the decision of the Tribunal were clearly articulated by Counsel; and

    resolved by the Federal Circuit Court.

There is no reason to question the integrity of the briefing process whereby Counsel was then retained by the now-Appellant. Nor is there any reason to question the integrity of the ability of Counsel to obtain proper instructions from the now-Appellant as to the arguments then to be advanced before the Federal Circuit Court.

46    The Appellant has, accordingly, suffered no procedural unfairness in the presentation or resolution of his case before the Federal Circuit Court. More generally expressed, there was no duty to allocate an interpreter to him for the purposes of those proceedings in August 2016 and no prejudice was suffered by the absence of any interpreter on that occasion.

47    The third Ground of Appeal is dismissed.

CONCLUSIONS

48    None of the three Grounds of Appeal have been made out. Although there was some merit in the argument as to the adequacy of the Tribunal’s reasons, no appellable error in the decision of the Federal Circuit Court has ultimately been made out. In any event, the reasoning of the Tribunal may well have been adequate. Nor have the findings made by the Tribunal met the requisite standard required to prove unreasonableness or irrationality. There has been no denial of procedural fairness on the part of the Federal Circuit Court.

49    Each of the remaining challenges advanced orally by the Appellant amount to no more than an impermissible attempt to impugn findings of fact or to raise arguments not previously raised at first instance.

50    The appeal is to be dismissed with costs.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

Associate:    

Dated:    6 April 2017