FEDERAL COURT OF AUSTRALIA

EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’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

DERRINGTON J:

Introduction

1    This appeal raises the question of the proper approach to the scrutiny of the formation of an administrative tribunal’s ‘satisfaction’ as to an evaluative criterion, where the Parliament pre-conditioned the mandatory exercise of a non-discretionary power upon the existence of that state of mind.

2    The appeal is from a decision of the Federal Circuit Court of Australia (FCC) in which the appellant sought judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 7 September 2017. The Tribunal had affirmed a decision made by a delegate of the Minister for Immigration and Border Protection to refuse the appellant a Protection (Class XA) Visa (protection visa).

3    At its heart, the appellant’s claim is that the Tribunal’s reasoning, which supported its finding of fact that she had no well-founded fear of harm, was deficient or delinquent. This, she claims, had the consequence that the exercise of power under s 65 of the Migration Act 1958 (Cth) (the Act) to refuse to grant her a visa suffered from jurisdictional error because it was “unreasonable” in the legal sense. However, due to the structure of s 65, the alleged factual error was not made in the course of the Tribunal’s exercise of the power to refuse to grant a visa so much as in the formation of its state of mind, the existence of which was the pre-condition to the power’s exercise. It follows that the real question is whether the allegedly erroneous factual determination of the Tribunal was such that the required state of mind did not exist, with the consequence that the subsequent purported exercise of power was without authority and, in that sense, ultra vires. Approached correctly in that way, the appellant may have greater scope for scrutinizing the Tribunal’s factual determination than were she to merely rely upon the allegation of a jurisdictional error occurring in the exercise of the power, assuming a complaint of that nature is available in the circumstances.

4    However, whether the appellant’s complaint is considered as the non-existence of a jurisdictional fact or the occurrence of a jurisdictional error in the exercise of power, it cannot succeed. The question for the Tribunal was whether the appellant’s fear of harm because she was a Coptic Christian was well-founded, given her particular circumstances. Those circumstances were that she lived in the city of Alexandria which was a generally safe part of Egypt for Copts, and that was so even though there had been a violent and fatal attack on a Coptic Church in that city in 2017. On any view of the material before the Tribunal, its conclusion that the appellant did not have a well-founded fear of persecution was logical, rational and based on findings which were logically founded on probative evidence, and (if it be relevant) had an evident and intelligible justification. Whilst it may be that others might have reached a different conclusion to the Tribunal based on the same material, that is not determinative.

Background

5    The appellant, who was born in Kuwait, is an Egyptian citizen. Her birth in Kuwait did not afford her citizenship of that country and she remains a citizen of Egypt and of no other country.

6    She applied for a visitor’s visa on 21 March 2013 purportedly for the purposes of visiting her sister who resides in Australia. She was granted a TR-676 tourist visa on 26 March 2013 which remained valid until 23 July 2013.

7    She arrived in Australia with her two year old son on 23 April 2013, and on 28 May 2013 applied to the Department of Immigration and Border Protection for a protection visa. She provided a number of documents in support of her application.

8    On 17 July 2015, the delegate determined to refuse to grant a protection visa, with the consequence that, on 22 July 2015, she sought review of that decision by lodging an application with the Tribunal.

9    The Tribunal conducted two hearings in relation to the application, one on 29 March 2017 and the other on 24 May 2017. On both occasions the appellant was assisted by an interpreter in the Arabic and English languages. Subsequent to the hearing the appellant sent to the Tribunal a number of news items which reported on the occurrence of recent deadly attacks on Coptic Christians in Egypt around Easter that year.

10    On 7 September 2017, the Tribunal affirmed the delegate’s decision not to grant a protection visa.

The Tribunal’s decision

11    The Tribunal dismissed the appellant’s application for two main reasons. First, it concluded she lacked credibility in relation to the circumstances which she had advanced as indicating she was specifically targeted as a Copt in Egypt. Secondly, it concluded from the available country information that Australia did not owe her protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act merely on the basis that she was a Coptic Christian.

12    The Tribunal considered a substantial number of documents which the appellant had provided and made a variety of findings concerning the veracity of her claim. A summary of the Tribunal’s reasons is as follows:

(a)    the Tribunal did not believe the appellant’s capacity to provide information to the Department was affected by any mental health issue;

(b)    the Tribunal developed a number of concerns with inconsistencies in the her evidence and that of a supporting witness which led it to conclude she was not a witness of truth;

(c)    the Tribunal concluded it was not satisfied the appellant was truthful as her comments and responses to questions put to her were not plausible. It was found that she had created her claims in order to support her visa application. The rejection of her credibility led to a rejection of the key claims for protection on the Convention grounds or pursuant to the complementary protection grounds;

(d)    having rejected the appellant’s credibility the Tribunal did not accept that:

(i)    she had helped her father-in-law to reconvert to Christianity and as a consequence the Muslim brotherhood or other groups had repeatedly threatened her or sent her messages threatening to kidnap her son;

(ii)    she had proselytised or was perceived to proselytise in Egypt;

(iii)    she and her husband were targeted or threatened or harmed for the reconversion to Christianity of her father-in-law or that her husband had received more threats or was attacked or kidnapped;

(iv)    that she fled Egypt fearing harm;

(e)    on the basis of country information reviewed by the Tribunal, it accepted that there were tensions and potential for sectarian violence in Egypt, but that the overall situation for Coptic Christians had improved since 2013 and it was relatively secure, particularly for those who resided in Cairo and Alexandria;

(f)    in reliance on the recent DFAT report on Egypt of 19 May 2017, the Tribunal did not accept the appellant would face a real chance of serious harm by reason of her religion or any other Convention ground, were she to return to Egypt;

(g)    the Tribunal also did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being returned to Egypt, there was a real risk that she would suffer significant harm;

(h)    it followed that the Tribunal did not accept that the appellant or her son were persons in respect of whom Australia owed protection obligations.

13    It is necessary to say something more about that part of the Tribunal’s conclusion as to the appellant’s claim based on the country information and the position of Copts in Egypt. That is best done by reference to the primary judge’s careful analysis of the Tribunal’s reasons. His Honour identified the Tribunal had (at [84]-[102] of its decision) set out relevant the circumstances and materials to which it had regard in concluding the country information did not reveal the appellant had a well-founded fear of persecution if returned to Egypt. It was not suggested that the primary judge’s recitation of the attention paid to country information by the Tribunal was in error. In general terms the matters identified by the Tribunal were as follows:

a)    the general instability in Egypt;

b)    the societal position of Copts;

c)    the improved position of Christians generally since the post-coup violence of August 2013;

d)    the fact that individual Christians who act in a manner which attracts the attention of some Muslims may be subject to violence and serious harm;

e)    that the majority of the Egyptian community — both Christian and non-Christian — live peacefully together;

f)    that violence is more likely in poorer urban and rural areas, and that the majority of the violence has occurred in Upper Egypt, and that the applicant is from Alexandria, which is not in Upper Egypt;

g)    the May 2017 bus attack resulting in the death of at least 28 Coptic Christians;

h)    the April 2017 attacks on Christian Coptic churches, including the Palm Sunday attack in Alexandria, which left some 45 people dead;

i)    that the Egyptian Government had extended a state of emergency after the attacks on the Coptic churches in April 2017; and

j)    the active restoration of police presence and authority following the July 2013 military intervention in Egypt and the election of President Sisi, and DFAT noting that there had been “substantial improvements” in relation to the personal safety and freedom of worship for Coptic Christians, who generally live peacefully with their Muslim neighbours, particularly in urban centres.

14    The Tribunal set out at length the various pieces of information given to it by the appellant concerning specific instances of violence in Egypt. In particular, it recited the report of an armed and deadly attack on a bus in which Coptic Christians were travelling and the reports of number of Church bombings around Easter 2017. For the purpose of the discussion which follows, it is necessary to observe the appellant’s complaint that, immediately following the recitation of those reports of attacks, the Tribunal appears to have ignored them or their relevance by saying:

94. The police have actively restored their presence and authority since the July 2013 military intervention and the election of President Sisi. DFAT also notes that, “there have been substantial improvements under the Sisi administration in terms of personal safety and freedom of worship for Copts”, widespread attacks have ceased and “most Copts from all walks of life live peacefully with their Muslim neighbours, particularly in urban centres”.

15    The Tribunal Member concluded at [96]:

Having regard to the country information above, I find that, while tensions and the potential for sectarian violence continue to exist, the overall situation for Coptic Christians has improved since the violence of August 2013 and it is relatively secure, particularly for those who reside in Cairo and Alexandria. The government of Sisi has repeatedly denounced attempts to create rifts among Egyptians and called for national unity. However, lower-level Church officials have questioned the commitment of local officials and law enforcement to upholding the law equally for Christians and Muslims. DFAT assesses that while Egyptian authorities are generally committed to preventing communal violence, this commitment may vary between individuals and locations. Occasional violent incidents of communal violence are likely to continue to occur, especially in Upper Egypt and in Minya in particular. Most cases are likely to be the result of small-scale localised disputes that take on a religious dimension.

16    And later at [98]:

98. Having regard to the country information above, I do not accept that the applicant faces a real chance of serious harm because of her religion, or any other Convention ground on her return to Egypt.

Application for review to the FCC

17    On 22 September 2017, the appellant applied to the FCC for review of the Tribunal’s decision. Two grounds were identified in the application.

18    On 18 April 2018, the appellant filed an affidavit sworn by a Mr Nathan Draper, annexing a copy of a transcript of remarks made by the then Prime Minister, the Honourable Malcolm Turnbull MP, dated 25 June 2017. Those remarks concerned Australia’s attitude towards Coptic Christians in Egypt.

19    Subsequently, on 20 June 2018, the Minister by his solicitors filed an affidavit deposed to by a Ms Marie Azar, sworn that day, annexing a copy of a transcript made on 19 June 2018, being the remarks of Mr Peter Khalil MP. Again, those remarks concerned the circumstances of Coptic Christians in Egypt.

20    Ultimately the appellant only pursued the first ground in the application for review which was:

The Authority [sic] made a jurisdictional error in that it unreasonably concluded, and/or addressed the wrong question in concluding, that the [appellant] does not have a well-founded fear of persecution.

21    The first particular of that ground was that the “Authority” (which may be taken to refer to the Tribunal) erred in concluding that the appellant, as a practising Coptic Christian, did not face a real chance of serious harm for reasons of her religion if she returned to Egypt when the Tribunal found that she did face a real chance of serious harm due to her practices and societal discrimination. The second particular relied upon was that the Tribunal had regard to country information and unreasonably and illogically found that the appellant would not be targeted for serious harm if she returned, and unreasonably concluded and failed to identify that there was a real risk of serious harm.

The consideration by the FCC

22    The primary judge held (at [29]) that the Tribunal had regard to the material before it prior to arriving at its conclusion that the appellant did not have a well-founded fear of persecution and that it weighed the material as it was required to do: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, 281-282; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 176 [33]; SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395 at [81]-[82]. The primary judge then said:

The material to which the Tribunal had regard contains material which might justify a range of conclusions, but in this case it can be inferred that the Tribunal placed more weight on the DFAT material which indicates that, not only have conditions improved for Coptic Christians in Egypt since the election of President Sisi, and that widespread attacks have ceased, but that most Coptic Christians are able to live peacefully, including peacefully with their Muslim neighbours, and that there has been a restoration of police presence and authority in Egypt, and that overall the situation for Coptic Christians is “… relatively secure, particularly for those who reside in … Alexandria”: CB 350 at [96].

23    His Honour found (at [30]) that, having regard to the DFAT reports, the conclusion that the appellant did not have a well-founded fear of persecution was open to the Tribunal and was neither unreasonable nor illogical on the basis of the principles in Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640 or Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. His Honour also said that it was fair to observe that it would have been open to a differently constituted Tribunal to arrive at a different decision but that was beside the point because the conclusion actually reached was “reasonably and logically within the range of possible conclusions properly open on the evidence and materials before the Tribunal.” It followed that the unreasonableness ground failed.

24    The affidavit material filed by the parties in April and June 2018 referring to the comments of the Prime Minister and a member of the Opposition was found by the primary judge not to be relevant to the determination. Although the material was referred to in the appellant’s written outline filed in this Court, during oral addresses all reliance upon it and on any ground associated with it was abandoned.

25    The FCC dismissed the appellant’s application on 15 March 2019.

Appeal to this Court

26    On 29 March 2019, the appellant filed a notice of appeal to this Court in which she appealed from the whole of the judgment of the FCC. The two grounds were:

The learned Federal Circuit Court Judge erred in law by failing to conclude that the Immigration Assessment Authority erred in law by:

1.    failing to direct itself that it had an obligation to consider, in making a choice, on a reasonable basis, as to what of conflicting information to accept and which of that information was reliable; and

2.    failing to direct itself that it had an obligation to consider, in making a choice, on a reasonable basis, of all the relevant country information before it.

27    It can be immediately seen that, again, the ground also mistakenly refers to the Immigration Assessment Authority. This appeal is, in fact, from judicial review of a decision of the Tribunal. As the Minister’s submissions reveal, it would seem the grounds of appeal have been copied from appeals in other matters without due regard to their application to the circumstances of the present case.

28    Had these grounds of appeal been pursued, the first significant difficulty would have been that they were not raised as grounds of review in the Court below. Necessarily leave would have been required to raise them for the first time on appeal. In general terms, leave should be refused in the absence of an explanation for them not being raised before the primary judge and where they lack sufficient merit: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at 598-599 [46]-[48]; EVA17 v Minister for Immigration and Border Protection (2018) 262 FCR 304; Hossam v Minister for Immigration and Border Protection (2016) 70 AAR 320, 330-332 [39]-[43].

29    In this case, no explanation has been given as to why the new grounds were not raised in the Court below. It is not insignificant that the appellant was represented there by the same solicitors who continue to represent her in this Court. Those solicitors would be aware of whether the decision not to advance the grounds now sought to be pursued was a deliberate tactic, but they have remained silent on that issue.

30    It is also necessary to observe that that the appellant was directed to file and serve written submissions in support of the appeal 10 business days prior to the hearing, which was 26 July 2019. No submissions were filed before that day. Despite the absence of any written submissions from the appellant, the Minister filed submissions in accordance with the directions on 2 August 2019. Subsequently on that same day, the appellant filed her submissions. No explanation for the failure to file and serve submissions in accordance with the timetable has been given. Again, that is so regardless of the fact that she has been represented by the same solicitors throughout the FCC proceedings and the proceedings in this Court.

Substance of the argument raised in the lately filed outline of submissions

31    Despite an attempt at obfuscation, the written submissions filed by the appellant did not actually seek to agitate the grounds in the notice of appeal. They advanced general allegations of jurisdictional error in the nature of unreasonableness in the Tribunal’s conclusion that the appellant did not have a well-founded fear of persecution. The foundation of the argument was the content of certain country information which had been provided to the Tribunal and the submission that the required well-founded fear could exist even where the possibility of persecution is well below 50%: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572. In effect, the appellant sought to return in a general way to the ground of unreasonableness agitated before the primary judge.

The ground advanced before this Court on the hearing of the appeal

32    Mr McIntyre SC, for the appellant, advised the Court the appellant would pursue only a single ground of appeal, being that the Tribunal fell into jurisdictional error in reaching the unreasonable conclusion that the appellant did not have a well-founded fear of persecution. There was no objection from the Minister to this ground being advanced on appeal. That being so, it is not necessary to deal with the grounds in the notice of appeal or, indeed, the second ground raised in the written submissions.

33    The foundation of the ground as agitated was that the Tribunal’s conclusion was unreasonable in light of the several pieces of country information received and accepted by it. That included information that, on 26 May 2017, a bus carrying Coptic Christians was attacked by militant Islamists killing 28 people and wounding 25 others and that, around Easter 2017, the terrorist group known as Islamic State bombed two Coptic Christian Churches, one in Alexandria and one in Tanta (a city in the Nile delta), killing at least 45 people. So the argument went, the acceptance of that country information had the consequence that all Coptic Christians in Egypt had a well-founded fear of persecution from Islamic extremists who were targeting them with violence and the Tribunal’s conclusion that the appellant did not have that fear was unreasonable.

34    As now formulated, the appellant’s case is not one where she claims that she has been specifically targeted by extremist groups. It is that she is a member of a social or religious group, being Copts, who are the subject of attempted persecution by militant Islamic fundamentalists, and for that reason her fear of harm is well-founded.

35    In the appeal the submissions of both parties were advanced at a high level of abstraction. Generally, the argument was put that the Tribunal’s decision was vitiated by jurisdictional error as a consequence of unreasonableness. At its most concrete, the appellant’s argument was stated in paragraphs 12 and 13 of the written outline:

12.     The Tribunal did not direct itself in such way as to arrive at a rational conclusion as to what country information may establish a well-founded fear, or real chance, of persecution.

13.     The Tribunal, instead, based its conclusion upon an irrational selection of country information to come to a conclusion of an overall improvement in the degree of violence in Egypt since 2013 and ‘relative security’. Improvement or ‘relative security’ do not rationally eliminate a ‘real chance’ of persecution.

In support of these submissions the appellant relied on the decisions in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 625.

36    As the following discussion reveals, the foundation of the appeal was misguided to the extent to which it relied upon “unreasonableness”, in the jurisdictional error sense, in the exercise of the power under s 65 of the Act. What ought to have been agitated was that the power was invalidly exercised because the pre-condition to the refusal of the visa did not exist; that pre-condition being the properly formed state of mind that the Tribunal was not satisfied the appellant met the criteria for the grant of a visa. Thus, the real gravamen of the argument was not that the power was exercised unreasonably, but that the jurisdictional fact for its exercise did not exist, as the purported state of mind was reached on the basis of illogicality or irrationality in the fact finding process. Counsel for the Minister also argued the appeal on the basis advanced by the appellant and no reference was made to the distinction which ought to have been drawn.

The issue the subject of the alleged unreasonableness or illogicality

37    Little attention was paid by the parties to identifying the precise nature of the alleged unreasonableness. As was said by Gummow A-CJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) at 624 [39], it is necessary to identify the point in the decision-making process at which the alleged unreasonableness occurred and to distinguish between alleged unreasonableness in the exercise of discretion and illogical or irrational reasoning in the course of reaching a state of satisfaction which is a jurisdictional fact:

Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view.

38    See also McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 (S20/2002) at 1176 [59]-[60] and, prior to that, Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 (Eshetu) at 654-655 [138]-[139].

39    In the years since SZMDS, there have been many failures by litigants and courts to apply this distinction. Examples are myriad in migration matters. The distinction has not always been averted to, yet in some cases it has not been necessary, and in others it has not affected the result. But in some cases, where it was relevant to the determination, it has resulted an apparent expansion of the scope of unreasonableness as a jurisdictional error to a point where some authorities appear to have adopted a de facto ground of judicial review equivalent to “material mistake of fact” as is recognised by the English courts. Further, that approach has been applied to the consideration of facts by a decision-maker in reaching a state of mind on which a power is conditioned or to a fact relevant to a determination, rather than the actual exercise of power itself.

40    If one were to follow the salutary advice of Gummow A-CJ and Kiefel J referred to above it is probable that, on one view, the appropriate and necessary limitations of judicial review can be maintained whilst courts meet the need to ensure that executive power is kept within the limits imposed by the Parliament.

The legislative scheme as it applies in this case

41    In relation to protection visas, generally and for the purposes of this case in particular, it is important to keep in mind the structure of the mandated power of the Minister under s 65 of the Act to grant visas. As Gummow A-CJ and Kiefel J noted, it is conditioned upon a state of satisfaction or non-satisfaction as to whether the visa applicant has met the relevant visa criteria, and it is not discretionary. The section provides:

65 Decision to grant or refuse to grant visa

(1)    Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a)    if satisfied that:

    (i)     the health criteria for it (if any) have been satisfied; and

(ii)     the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)     the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)     any amount of visa application charge payable in relation to the application has been paid;

               is to grant the visa; or

(b)     if not so satisfied, is to refuse to grant the visa.

42    Section 36 of the Act identifies the criteria which an applicant must satisfy for the purposes of being granted a protection visa. Relevantly for present purposes, a specific criterion is set out in sub-section (2) as follows:

36    Protection visas—criteria provided for by this Act

    …

(2)     A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)     a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

43    For the purposes of s 36(2)(a) the word “refugee” is defined by s 5H of the Act as follows:

5H Meaning of refugee

(1)     For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)     in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

The fear of persecution referred to must arise as a result of a “Convention ground”, being for reasons of race, religion, nationality, membership of a particular social group or political opinion.

44    It follows that, for the granting or refusal of a protection visa under s 65, the Minister must be satisfied (or, for refusal, “not so satisfied”) of a number of matters including that the applicant meets the refugee or the complementary protection criteria. Where the Minister reaches the relevant state of satisfaction (or otherwise), she or he is obliged to issue (or refuse) the visa. In that sense the Minister does not have any decisional discretion. The structure of the Act requires the Minister to consider the application for a visa (s 47(1)) and, after doing so (s 65(1)), if reaching (or not reaching) the required state of satisfaction, to act accordingly. The state of mind, being either satisfaction or non-satisfaction, is a pre-condition to granting or refusing the visa. This structure was articulated by Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 (SGLB) at 998 [37]:

The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a “jurisdictional fact” or criterion upon which the exercise of that authority is conditioned (Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 609 [183]).

45    The issue in the present case, which concerns the question of whether the Minister was not satisfied the appellant had a well-founded fear of persecution so as to make her a refugee, is the extent to which the existence of that subjective jurisdictional fact was vitiated by illogicality or irrationality in its formation. That is a substantially different inquiry from ascertaining whether a jurisdictional error existed in the exercise of a discretion or power because it was exercised “unreasonably” in the sense originally used in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury). This important distinction requires some elaboration, which is undertaken later in these reasons.

Identifying the alleged error

46    Returning then to the criteria of which the Minister or Tribunal had to be satisfied and, in particular the application of the definition of “refugee” in s 5H, the parties did not dispute that the statement of principle identified in Annexure A to the reasons of the Tribunal reflected the provisions as they applied to the matter before it. Included in those were:

113. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out In s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

…

116. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

47    Here, there is little doubt that the apprehended harm claimed to be feared by the appellant was of serious harm, being death or serious injury. It can also be said that the targeting of Copts by Islamic extremists was obviously discriminatory, though whether it was systematic as opposed to random was not the subject of any submission. Had the appellant established there was a real chance of suffering serious harm, this latter issue may have become relevant. Given the identification by the primary judge of the bombings and bus incident as being “random attacks of terror from Muslim extremist organisations” (at [26]) and the government’s responses to them, there may have been some difficulty in concluding that the threat of harm had any official quality to it at all.

48    The primary judge correctly identified that a “well-founded” fear must be based upon there being a “real chance” of being persecuted, being a chance that is not remote or insubstantial or a far-fetched possibility. He also recognised that the “real chance” did not mean that the potential for the suffering of persecution was greater than 50%. He referred to Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 398 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575. In the former case, McHugh J (at 429) suggested that a fear of harm of 10 per cent would suffice. It was also observed the application of the “real chance” test requires a decision-maker to engage in a degree of speculation about future events. In that predictive process the decision-maker must not exclude reasonable speculation about the chances of a hypothetical future event occurring: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, [32].

49    Neither of the parties suggested that either the Tribunal or the primary judge incorrectly identified the test to be applied in relation to whether a person has a well-founded fear of persecution by reference to the existence of a “real chance” of serious harm.

50    For present purposes the conclusion or finding of which the appellant complains is unreasonable — or more accurately illogical — is the finding of fact that she did not face a “real chance” of serious harm were she to return to Egypt. Her case must be that the information concerning the 2017 bombings and attacks overwhelmed the impact of the other country information, and reliance upon the latter by the Tribunal was unreasonable or illogical such that it could not be said the Tribunal was not satisfied the criteria for a protection visa was met.

The “jurisdictional fact error” and “jurisdictional error” distinction

51    It is a distinct type of jurisdictional error to proceed to or purport to exercise a power in the absence of a jurisdictional fact (that is, a fact or circumstance that the law makes a pre-condition to the exercise of power). It is an error because it ignores an essential requirement prescribed by the Parliament. It is “jurisdictional” because where the statute, properly construed, makes the fact or circumstance required a necessary pre-condition to the exercise of power, the power is taken not to have arisen in its absence. Is has been referred to as a “jurisdictional fact error” and it covers several types of errors concerning “that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion”: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 148; or, as in that case, “mandates a particular outcome”.

52    That description was perhaps more apt while there was still debate about whether the term “jurisdictional fact” encompassed only facts capable of objective proof, but it now seems to be accepted in Australia that it includes a state of mind such as satisfaction or belief. There are alternative view points, but they are for a higher court to address: Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, Law Book Co, 2017 (6th ed) [4.480]-[4.490]. The broad concept was identified in Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120 at 139 [43], where the majority of the High Court said of the phrase “jurisdictional fact”:

Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.

53    Jurisdictional facts may be basic facts capable of objective determination: “if an application has been made”, “if the applicant currently holds a bridging visa”, “if there has been less than 10 mm of rain in the preceding 7 days” (although note even these “facts” may be subject to disputation). They may be expressed in evaluative terms: “if it is in the interests of the local community”. They may be expressed as a state of mind: “if the Minister is satisfied”, “if the Commissioner thinks”, “if the officer suspects”. Perhaps most confusingly, despite how they are expressed, the actual requirement which is a necessary pre-condition to the power (when the statute is properly construed) might be in a different form: a requirement that a pharmacy be more than 2 kilometres from another pharmacy might only need an authority to be satisfied (even if erroneously) of that fact for the power to arise: Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462, 476; or a limit on the time during which a court may exercise jurisdiction might only need that court to adjudge that the time has not elapsed: Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, 391. The interpretation of the actual legislated jurisdictional requirement will depend upon the body vested with the power, among other things.

54    Conversely, a requirement that an authority be satisfied that a person “is growing…potatoes” might in practical terms require, for it to be not so “satisfied”, that the person is not in fact growing potatoes: Buck v Bavone (1976) 135 CLR 110, 119. In each case, the exact factual pre-condition required will be a matter of statutory construction. That construction might be informed by constitutional considerations (as interstate trade in Buck v Bavone or as alluded to in SZMDS at 621 [25]) or other interpretive rules, such as the doctrine known as the “principle of legality”.

55    In these reasons, the prescription of a state of mind as the pre-condition to the enlivening of power will be referred to as a “subjective jurisdictional fact” and any error in its formation will be referred to as a “subjective jurisdictional fact error” although, again, these descriptions are not entirely apt. In The Resurgence of Jurisdictional Facts (2001) 12 Public Law Review 17, Professor Aronson referred to a “subjective jurisdictional fact” as being a “subjective pre-condition”, which is also an apt descriptor. The expression “jurisdictional error” will be used in the orthodox way to connote an error in the exercise of power which vitiates the jurisdictional basis of the purported exercise, whether from of a lack of authority because of the non-existence of a pre-condition to the power’s exercise or otherwise.

56    (As an aside, it is perhaps unfortunate that (mostly) implicit prescriptions of rationality or logicality in forming a state of mind are scrutinised through the lens of the factual existence of that state of mind, rather than addressing whether “in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact” (R v Australian Stevedoring Industry Board, Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 120) (emphasis added). It would perhaps be preferable to treat the Parliament as laying down an explicit factual state of mind and a separate implicit (or at times explicit) procedural requirement that it be formed properly, to avoid contortion of language and confusion of law. That procedural requirement could be treated as being one of the manner in which the power (not the ultimate power following the jurisdictional fact, but the authority to decide granted) is exercised which could lead to jurisdictional error. In the present Act, textual support may be found by the requirement for ‘considering’ (ss 47(1), 65(1)) an application, or the meaning of the word ‘satisfied’ as including (in ‘satisfy’) “To [be] furnish[ed] with sufficient proof or information; to [be] assure[d] … to [be] convince[d]”: Oxford English Dictionary, Second Edition, Vol XIV, p 505, 7c (emphasis added). Such an approach is consistent with a state of mind referring to a single point in time rather than a mental process. But that is a question for another court and, thus far, there has been no appetite to limit the examination of the existence of a jurisdictional fact by reference to the principles of jurisdictional error.)

57    Similarity exists between some jurisdictional errors in the exercise of powers and “subjective jurisdictional fact errors”, not in the least where there is an apparent lack of coherency in the reasons for the exercise of power or in the formation of the subjective jurisdictional fact. In each of these, support for the exercise of power or formation of opinion are dissonant or inharmonious or are not rationally consistent with the material on which they are based. Historically, that lack of coherency in the exercise of power or in the reasons given for the exercise of power has been compendiously referred to as “Wednesbury unreasonableness”, even if that description has been abandoned in recent years, often in favour of “legal unreasonableness”. The lack of coherency which gives rise to a “subjective jurisdictional fact error” has historically been identified as existing where the formation of the claimed state of mind was “irrational or illogical and not based on findings or inferences of fact supported by logical grounds”. Yet, despite the similarity in some underlying principles, the two areas of discourse are separate.

58    Despite exhortations over the years by several members of the High Court and, in particular, by Kiefel CJ and Gummow J, that this distinction between jurisdictional error and “subjective jurisdictional fact error” be maintained, it is apparent that has not occurred. That is especially so in migration matters. It is a recurring error in that field that litigants allege, as against a Minister’s non-satisfaction that a visa applicant meets the statutory criteria, that the decision suffers from the jurisdictional error of “unreasonableness”. Properly articulated, the allegation ought to be that the jurisdictional fact, being the state of mind by the Minister that the applicant did not meet the criteria, was vitiated or did not exist because its formation was illogical or irrational in the manner referred to above. This same mischaracterization of the error occurred in this case.

“Jurisdictional fact” review

59    The distinction referred to above is significant. Different considerations apply when corrective action is to be taken by the court depending upon whether the issue is whether a jurisdictional fact exists or whether a jurisdictional error has occurred in the subsequent exercise of power. In the latter, the restrictions on the courts’ powers on judicial review limit the ability of the courts to correct error, particularly factual error. In the former, the courts’ powers are not so limited. This is made clear by the learned authors of Judicial Review of Administrative Action and Government Liability at [4.480]:

Distinctiveness of jurisdictional fact review

[4.480]

Judicial review for want of a jurisdictional fact is radically different from the standard fare of judicial review. Courts are increasingly entertaining challenges based upon criticisms of an administrative decision-maker’s findings of fact, but they almost always insist that the decision-maker is entitled to get the facts wrong, so long as they do it fairly and legally. This is usually summed up in the observation that judicial review cannot equate to merits review. Jurisdictional fact review is different; it allows the court to determine the facts for itself, taking fresh evidence if necessary. The court’s power to determine the existence or non-existence of the jurisdictional fact is nothing less than merits review on that particular issue. The distinction is between a power or duty conditioned upon the decision-maker’s view of the facts, and a power or duty contingent upon the court's view of a fact’s existence or non-existence.

60    Although the authors were not specifically considering unreasonableness, illogicality or irrationality, but merely factual error, it is important to observe the distinction drawn between error of fact in the making of a decision which the decision-maker has authority to make, on the one hand and, on the other, an error of fact by the decision-maker in determining a fact on which the exercise of a power is conditioned. It must also be kept in mind that the authors were using the expression “jurisdictional fact” in a narrow sense. They did not consider that a subjective conclusion or state of mind — such as satisfaction as to the existence of a particular matter or “subjective jurisdictional fact” as it is referred to in these reasons — is a jurisdictional fact and within the concept. The comments as to merits review of the existence of a jurisdictional fact were directed to the existence or otherwise of an objective jurisdictional fact.

61    Nevertheless, there is now a significant line of authority to the effect that a state of mind — a satisfaction, belief or matter of judgment — can be used by the legislature as a jurisdictional fact. However, the court’s ability to examine the veracity of a subjective jurisdictional fact is more limited than it is in relation to an objective one.

The nature of jurisdictional fact review generally

62    At least in relation to the exercise of federal power, the examination of whether a fact on which a power is conditioned actually existed is not, of itself, judicial review nor a search for jurisdictional error. It is only as to whether the preconditions to the exercise of power which the legislature has specified exist. It may well be that a conclusion that it did not exist will found a jurisdictional error by the repository of the power which has purported to exercise it in the absence of the antecedent requirement, but whether the fact in question existed is not, of itself, a matter of judicial review. As was said by Gummow A-CJ and Kiefel J (at 624 [38]) in SZMDS (although dissenting in the result):

The apprehensions respecting “merits review” assume that there was jurisdiction to embark upon determination of the merits. But the same degree of caution as to the scope of judicial review does not apply when the issue is whether the jurisdictional threshold has been crossed.

With respect, this is plainly correct.

63    Particularly in relation to objective jurisdictional facts, there is no limitation to the court’s usual forensic ability to determine whether it existed. As was emphasised by Edelman J in Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 (Pilbara Infrastructure) at [116]:

It is not necessary for the purposes of this case to decide whether senior counsel’s assertion about the limits of jurisdictional fact review is correct. It suffices to say that, putting aside the difficulties with the label “merits review”, there are powerful arguments to the contrary which recognise an important difference between jurisdictional facts and other types of jurisdictional error. As Justice Leeming has observed [in Leeming M, Authority to Decide: The Law of Jurisdiction in Australia (2012) 62], the process of “jurisdictional fact” review is not “something approaching merits review”; it is merits review.

(Original emphasis)

In relation to that latter proposition, Leeming JA had referred to M Aronson, B Dyer, M Groves, Judicial Review of Administrative Action (Lawbook Co, Sydney, 4th ed 2009) at 257, although as noted above, Professor Aronson’s view was directed to the review of an objective jurisdictional fact.

64    In jurisdictional fact review, a court is entitled to determine the facts for itself and receive evidence even if it was not before the original decision-maker, and it can give what weight to the decision as to the existence of the jurisdictional fact it sees fit: R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54, 70-73; Corporation of the City of Einfield v Development Assessment Commissioner (2000) 199 CLR 135, 154-155. The court’s review of whether the jurisdictional fact existed is de novo: D’Amore v Independent Commission Against Corruption [2012] NSWSC 473, [66] per McClellan CJ at CL. Nevertheless, it is not uncommon for review of jurisdictional fact to be conflated or confused with judicial review: Mason B, Jurisdictional facts after Plaintiff M70 (2013) 24 PLR 37; Smith M, “According to law, and not humour”: Illogicality and administrative decision-making after SZMDS (2011) 19 AJ Admin L 33. Indeed, Professor Aronson in The Resurgence of Jurisdictional Facts (at 18) suggested that the court’s review of the existence of a jurisdictional fact is founded in judicial review and not merits review. In a sense this is correct, because ascertaining whether the jurisdictional fact exists is within the process, or a component of, judicial review. However, by itself the process is not limited in the same way by concerns of impermissible merits review.

The nature of subjective jurisdictional fact review

65    It may well have been that to prevent courts engaging in fulsome merits review of the existence of an objective jurisdictional fact, legislatures were motivated to structure statutory provisions so that power is enlivened upon the formation of a relevant state of mind. In Eshetu at 651 [130] (Eshetu), Gummow J observed:

In Bankstown Municipal Council v Fripp ((1919) 26 CLR 385 at 403), Isaacs and Rich JJ pointed out that, with the object of preventing litigation on questions of jurisdictional fact, the legislature may introduce into the criterion elements of opinion or belief by the decision-maker. Section 65 of the Act is an example. The prosecutor was entitled to the grant of a visa only if the Minister were “satisfied” that the prosecutor answered the description in s 36(2).

See also his Honour’s comments with McHugh J in S20/2002 at 1175 [54].

66    So, rather than have the existence of an objective fact be the condition on which power is exercised, it is the state of mind of the repository of the power — either in terms of “belief”, “suspicion”, “satisfaction” or the like — as to its existence which is relevant. However, even then it does not follow that courts are prevented from ascertaining whether the authority to exercise the power existed: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J. But the scope for review is necessarily more limited than that available where the fact in question is an objective one. The reasons for that are possibly fourfold. First, because the legislature has made the jurisdictional fact ethereal or incorporeal, so that its actual existence is incapable of being accurately assessed. As Gummow J said in Eshetu at 651 [130], these are not facts in the ordinary sense of the word or, as Basten JA said in Brennan v New South Wales Land and Housing Corporation (2011) 83 NSWLR 23 at 43 [84], a state of satisfaction on which a power is exercisable is “a particular kind of ‘jurisdictional fact’”.

67    Secondly, the various states of mind on which powers are frequently conditioned are concerned with matters which contain inherent value judgments or are dependent upon conclusions about the existence or otherwise of matters which require an assessment of the available material. Necessarily, evaluative judgments are matters on which reasonable minds might differ and may include a not insignificant subjective element: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014; Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 (Avon Downs) at 360. In this way the legislature implicitly recognises that there is no absolute conclusion or state of mind which might be reached in every case. Indeed, usually a range of views might be held, and the power is enlivened if the repository reaches that state of mind on which it is conditioned.

68    Thirdly, the legislature often makes the jurisdictional fact the state of mind of a particular office holder (and, by implication, their delegates and any tribunal or reviewer which stands in their stead). The reposing of the obligation to formulate the state of mind in a particular person (or those deriving power from them) such as a Minister of the Crown, is indicative of Parliament’s intention that the person forming the opinion applies their special experience, understanding, knowledge and the resources at their disposal to the task. So it is the designated office holder whose state of mind is key to enlivening power. It is not any person’s state of mind, nor is it the courts’ opinion as to whether the state of mind should have been formed. But in order for the power to be enlivened, the repository of it must actually have the requisite state of mind.

69    Fourthly, the danger of an abuse of the court’s power of review of administrative action by the frivolous pursuit of unmeritorious proceedings makes it more desirable in the interests of justice and the legal process that the permissible grounds for subjective jurisdictional fact review should be reasonably limited by clear definition and not be left open to a wide range of unfortunate arguments claiming invalidity.

70    Thus, in conformity with the manner in which the legislature has granted power, any review by the Court, as to the existence of a subjective jurisdictional fact must be limited to determining whether the state of mind actually reached is one within the range which the legislature intended to be formed as a pre-requisite to the exercise of power. If there are errors in the process by which a state of mind is reached, such as by considering extraneous or irrelevant considerations or by excluding relevant considerations, the state of mind will not be that which the legislature impliedly requires. Similarly, if, in reaching the state of mind, the repository of power has asked themselves the wrong question as a consequence of a mistake of law, the state of mind is not that on which the exercise of power is conditioned. It might also be noted that the Parliament implicitly intends the requisite state of mind should be one which has been formed logically and rationally upon findings of fact which are logically formed upon probative evidence. Further, even if it cannot be detected that an error occurred in the application of law or consideration of the correct matters, if the conclusion is one which is wholly unreasonable, it can, nevertheless, be inferred that one of the identified error has occurred. In Avon Downs at 360, Dixon J identified the range of errors which might vitiate a claimed state of mind on which a power is conditioned in the following manner:

If he does not address himself to the question which the [statute] formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.

71    The reference by Dixon J to “unreasonable” did not suggest the existence of a ground of unreasonableness, rather it suggested that if the conclusion was unreasonable in the circumstances, that would evidence the existence of one of the other errors which was not, of itself, patent.

72    Although the review undertaken by the Court is to this extent a merits review, it is not a process through which it will substitute its own view for that of the repository of the power: see the observations of Gleeson CJ in S20/2002 at 1168 [8] and as Latham CJ said in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432:

It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.

Irrationality, illogicality and illogical fact finding as grounds of subjective jurisdictional fact review

73    When the claimed error concerns the reasonableness, rationality or logicality of a state of mind which is, or is part of, a jurisdictional fact, courts have been prepared to review it by ascertaining whether it was one which could be formed by a “reasonable man who correctly understands the meaning of the law under which he acts”: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 532 per Gleeson CJ and Gummow J; Eshetu at 657 [147] per Gummow J; R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, 430 per Latham CJ.

74    More recently, the joint judgments of Gummow A-CJ and Kiefel J and of Crennan and Bell JJ in SZMDS relied on the observations of Gummow and Hayne JJ in SGLB at 998 [38] that a court could conclude that a jurisdictional fact founded upon a person’s state of mind did not exist because it included some element of illogicality or irrationality. Their Honours had said (in SGLB):

The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.

(Footnote omitted)

75    That formulation is reflective of Gummow J’s observations in Eshetu at 657 [147] that a subjective jurisdictional fact does not exist if it is founded upon a “findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds”, and of the subsequent and similar observations of McHugh and Gummow JJ in S20/2002 at 1175 [52]. The criteria of invalidity relevantly identified by Gummow J are illogicality, irrationality and findings or inferences of fact which are not supported by logical grounds. These appear to have their origins in the reasons of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119. Gummow J’s formulation operates at least at two levels in the evaluative process. First, where it is necessary for the repository of power to make findings on the material before them prior to determining whether they are satisfied or otherwise of the criteria, if their findings or inferences of fact are not supported by probative material or not based on logical grounds, an error will have occurred. Secondly, where the facts are apparent because no resolution of competing evidence is required, or once the relevant facts are properly ascertained, the state of mind of the repository will not lack veracity if it is not illogical or irrational. The formulation of these grounds of subjective jurisdictional fact review by Gummow J in Eshetu were obviously appropriate to the operation of s 65 of the Act where the criteria in respect of which the Tribunal had to be satisfied or not satisfied were factual matters, the determination of which would be based upon the material before it. A conclusion of fact which wants for logical, probative evidence or is not based on logical grounds cannot be the subject of a satisfaction as to its existence. Similarly, a conclusion of satisfaction or non-satisfaction after the relevant factual matters have been determined will be invalid if the evaluative path is illogical or irrational.

Content of the irrationality, illogicality and illogical fact finding grounds

76    The precise content of the grounds of irrationality, illogicality or illogical fact finding in reaching or not reaching the required state of satisfaction remains unclear. In S20/2002, Gleeson CJ observed at 1168 [9] that to describe a process of reasoning as leading to an illogical conclusion might mean no more than saying that on the same material the reviewer would have reached a different conclusion. The existence of a mere faulty inference of fact will not be sufficient, but, if it can be said that the true and only reasonable conclusion contradicts the one reached, then it may be shown to involve legal error. In that case, McHugh and Gummow JJ were prepared to accept at 1172 [37] that the jurisdictional fact did exist because the Tribunal’s lack of satisfaction of the protection visa criteria was not illogical or irrational. Their Honours did not specify the scope of the illogicality or irrationality grounds or the ground concerned with evidential deficiency. However, they did refer with some approval to the decision in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 (Melbourne Stevedoring) at 119 to the effect that the absence of any foundation in fact is a sufficient ground for vitiating any alleged state of mind which is said to arise from it. Similarly, it was seemingly accepted that inadequacy of material, whilst not in itself sufficient to ground prohibition, may be a circumstance which supports the inference that the repository of power applied the wrong test or was not, in reality, satisfied of the particular matters.

77    In WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87, Lee J, although dissenting in the result in that case, brought together several strands of authority to identify the content of the scope of the ground of illogicality or irrationality in the assessment of a jurisdictional fact founded on a state of mind. His Honour said (at [7]):

The Tribunal obtains power to make a determination under the Act where the determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds. (See: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [145]; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 per Gleeson CJ, Gummow, Kirby and Hayne JJ at [34]; Hill v Green (1999) 48 NSWLR 161 per Spigelman CJ at [72]). A determination that is based on illogical or irrational findings or inferences of fact may be shown to have no better foundation than an arbitrary decision and accordingly the review process will be unfair and will not have been conducted according to law. Here, of course, the words “irrational” or “illogical” are used with their proper meaning of devoid of, or contrary to, logic; or ignorant or negligent of, and not in conformity with, the laws of correct reasoning (see: The Oxford English Dictionary 2nd ed 1989, The Macquarie Dictionary 2nd ed. 1991), and are analogues of arbitrary or perverse. They are not used with a lesser colloquial meaning that may be applied where the words are introduced in debate to emphasise the degree of dissent from a disputed conclusion or point of view. (See: Eshetu per Gleeson CJ, McHugh J at [40]; Lam per Gleeson CJ at [9]). Illogical or irrational findings or inferences of fact upon which a determination is based become examinable as part of the matter that is subject to judicial review pursuant to the application for a prerogative or constitutional writ. (See: Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per McHugh, Gummow JJ at [54]-[59]; Bond per Mason CJ at 338, 359-360).

78    It is not irrelevant to note that Lee J’s observations are sometimes mistakenly regarded as explaining the scope of the not dissimilar jurisdictional error ground of unreasonableness, and the last sentence in the above quote might mistakenly be taken as supporting that view. However, it is clear that his Honour was considering subjective jurisdictional fact review as part of the process of determining whether the decision-maker has exercised power without a necessary precondition to that exercise.

79    A similar formulation of the scope of subjective jurisdictional fact review was adopted by Crennan and Bell JJ in SZMDS at 648 [131]. Their Honours’ reasons suggest they were possibly of the view that there was no relevant difference between judicial review for jurisdictional error on the one hand and review of a subjective jurisdictional fact on the other, and they identified the ground of illogicality or irrationality as follows:

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

80    That formulation raises an important question of whether the ground of illogicality, irrationality or unreasonableness vitiates the relevant state of mind where the actual or expressed reasoning of the decision-maker is illogical, irrational or unreasonable, or only where there is no logical, rational or reasonable path by which the conclusions reached can be drawn from the evidence. The formulation of Crennan and Bell JJ certainly appears to adopt the latter, being a something akin to the formulation of the Wednesbury unreasonableness principle. However, when applying the test, their Honours said (at 648 [133]):

However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.

(emphasis added)

81    Later (at 649-650 [135]), their Honours seemed to accept that even where the actual reasoning was illogical, if a logical, rational and reasonable person could have reached the same decision, the ground was not made out:

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. 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.

82    There have been different approaches in the various Full Court decisions making references to SZMDS. It suffices to highlight a few.

83    In SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1, the members of the Court (although most clearly Rares J) seemed to accept that the test is not one tied to the particular path of reasoning employed, but rather the ultimate conclusion, and whether it could be logically and rationally reached by a decision-maker: see 3-4 [3] and 22-23 [84]-[85]. Others have suggested that it is the particular reasons given that are to be scrutinised: SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404, 408 [12], 420 [56] and 421 [59]-[60]. There is a line of cases that adopts that approach that findings “on the way” are to be reviewed for rationality or logicality rather than the “end result”: Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at 221 [53]-[54] per Wigney J; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at 517 [60] per McKerracher, Griffiths and Rangiah JJ (cf perhaps [59]); ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at 122 [47] (although note the reference in that paragraph to SZOOR at [84]); DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at 184 [30(4)].

84    The prevailing view on the above authorities indicates that the assessment of the fulfilment of a subjective jurisdictional fact is, in essence, a matter of whether the state of mind of a designated person accords with that which the legislature requires, and that it is reached in accordance with the implicit requirements of, inter alia, an absence of illogicality or irrationality, and it is not based upon illogical fact finding. If the state of mind actually reached by the repository of power could be reached by a logical or rational person on the same material and complies with the other requirements, it is a state of mind which will enliven the relevant power. That will be so even where the probative evidence can support different reasoning processes by logical or rational people resulting in a different conclusion. But, if the actual state of mind reached was arrived at by a path which was illogical and irrational, the required state of mind will not have been attained. That remains so even if there were an alternative path to the same conclusion, because the state of mind will not have been formed in accordance with the implicit requirements of the Parliament. In other words, Parliament can be taken to have required that the person who may be affected by the exercise of power founded upon the subjective jurisdictional fact is only to be so affected where the exercise is preceded by the formation of a state of mind in the manner required. It can be fairly assumed that the Parliament intended the person is to be given the chance of a favourable outcome (at least in the sense of overcoming the initial jurisdictional hurdle) by the repository’s engagement in a process that is not illogical or irrational. Even where the application of logic and rationality might permit of diverse outcomes, it is difficult to accept the Parliament intended that the pre-requisite to the exercise of power could be satisfied through a capricious process. In simple terms, if the state of mind is reached by the toss of a coin, it will not satisfy the subjective jurisdictional fact even if, through a proper evaluation of the evidence and appropriate reasoning, the same conclusion could be reached. The process by which the subjective jurisdictional fact is reached is important. That is especially so in provisions such as s 65 of the Act where the formation of a state of mind actually dictates the exercise of statutory power.

85    A similar approach applies in relation to the examination of the factual findings by the repository of power. If there is only one conclusion which can be drawn from the material before the person whose state of mind is relevant, a conclusion to the contrary will be illogical and not based on probative material. However, where there is room for logical persons to reach the finding actually reached by the repository of power, the state of mind formed is effective. Some doubt remains as to the circumstances in which an alleged inadequacy of material to support a finding of fact by the repository of power will suffice to vitiate the state of mind formed. In S20/2002, McHugh and Gummow JJ suggested that the decision in Melbourne Stevedoring supported the view that inadequacy of material to support a finding was, alone, insufficient to warrant the grant of a writ of prohibition, but it may support an inference that the wrong test is being applied or the repository of power is not in reality satisfied of the requisite matters.

Constraints on evaluating the process by which the state of mind was reached

86    In D’Amore v Independent Commission Against Corruption [2012] NSWSC 473, McClelland CJ (at [87]) observed that, when considering the question of illogicality or irrationality, it is important to keep steadily in mind that the reasons of a decision-maker should not be over-scrutinized:

A reviewing court must also bear in mind that the decision-maker’s reasons “are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [31]. The concern is with the overall strength of the defendant’s reasoning, not the adequacy or completeness of the defendant’s expression of its reasons.

87    In addition, care must be taken not to conflate administrative fact finding with that which occurs in a curial setting. In Eshetu, Gummow J at (656 [143]) referred to the observations of the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282 (Wu Shan Liang):

Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision-making is of a different nature (Mahon v Air New Zealand Ltd [1984] AC 808 at 814). A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law.

88    It follows that an assessment of the reasoning of a repository of power as to the ultimate conclusion or as to fact finding ought not to proceed in the manner in which an appeal by way of rehearing would.

Circumstances permitting greater scrutiny

89    Whilst keeping the above restraints in mind, on occasion, a greater level of scrutiny of an administrator’s reasons is permitted. A line of High Court authority suggests that the evidentiary treatment to be afforded to the decision of a tribunal, in the court’s process of independently determining whether it has or lacks jurisdiction, will vary with the circumstances of the case. Some of the circumstances which permit that variation were identified by Gummow J in Eshetu at 655 [140]:

The circumstances will include such matters as the field in which the tribunal operates, the criteria for appointment of its members, the materials upon which it acts in the exercise of its functions and the extent to which its decisions are supported by disclosed processes of reasoning.

90    His Honour there referred to R v Williams; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 153 CLR 402 at 411. That decision, in turn, referred to Caledonian Collieries Ltd v Australasian Coal and Shale Employees’ Federation (No 1) (1930) 42 CLR 527, where Isaacs J (at 548) identified the deference given to a judge of the Arbitration Court on an evaluative matter where the jurisdictional question “requiring a somewhat special knowledge of the subject to form the most reliable conclusion” is one where many circumstances are “immeasurable and only to be properly appreciated and appraised by those familiar with such occurrences and the incidents behind them”. There was also a reference to the then recent statement of Mason J in R v Alley; Ex parte New South Wales Plumbers & Gasfitters Employees’ Union (1981) 153 CLR 376 at 390:

The weight to be given to the Commission’s decision will depend on the circumstances. If the evidence remains the same, if the Full Bench on appeal has confirmed the decision at first instance and if the issue of fact is one in the resolution of which the Commission’s knowledge of industry specially equips it to provide an answer, greater weight will be accorded than in cases in which one or more of these factors is absent.

91    Those statements may have some relevance to the approach suitable to considering statements by the Tribunal concerning its claimed state of satisfaction (that being the (jurisdictional) factual question the court is addressing based on the evidence, which usually comprises the reasons). In dealing with the respective parties’ submissions as to the veracity of the claimed satisfaction, questions often arise about whether infelicities in language or apparent leaps of logic may be inferred to have been properly considered, and whether (in simple terms) a tribunal should be given “the benefit of the doubt”. In doing so, the usual refrain must be observed: consideration of the reasons must not be concerned with looseness of language nor unhappy phrasing, nor should the reasons be construed minutely and finely with an eye keenly attuned to the perception of error: Wu Shan Liang at 271-272.

92    Necessarily, that curial restraint is founded upon certain assumptions as to the nature and character of the tribunal from which the decision and associated reasons have emanated. In line with the circumstances recognised by Gummow J in Eshetu, if it were demonstrated that, for whatever reason, a tribunal was unable to efficaciously discharge its statutory duties, did not have stringent or appropriate criteria for appointment of its members, operated in a generalised or amalgamated way that meant its members brought less specialised knowledge to the task at hand, or had members whose conditions of employment were not conducive to the discharge of their duty in accordance with the rule of law, the court’s confidence in it would necessarily wane. It would follow that, for the purpose of properly discharging their duties to review the exercise of power by such tribunals, the courts would be obliged to analyse the tribunal’s reasons more rigorously. That would be particularly so in the application of the principles surrounding jurisdictional fact review, as they have been discussed above. Fortunately, there is no evidence in this case to suggest that any scrutiny greater than that usually applied to the reasons of the Tribunal is required.

Erroneous merging of concepts

93    Despite the concern expressed by Gummow A-CJ and Kiefel J in SZMDS, it is apparent that the concepts of judicial review for jurisdictional error and review of jurisdictional facts have not been kept distinct. There are numerous cases where the principles of the two types of review by the court and the cases dealing with the same are treated as a singular concept, in which the authorities with respect to each apply to the other. Indeed, although Crennan and Bell JJ in SZMDS identify (at 647 [129]) the possibility of the two areas of thought being confused, it appears that their apprehension may have been realised in respect of other courts’ understanding of the statements at [121]-[132], especially those at [130] and [132]. The erudite reasons of Wigney J in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at 219-222 [41]-[56] set out at some length the principles relating to legal unreasonableness as a jurisdictional error albeit in the context of what ought to have been an ascertainment of whether the jurisdictional fact in s 65(1) of the Act had been met. In doing so, his Honour dealt together with the different, albeit related, principles of illogicality and irrationality relating to error of jurisdictional fact (as discussed in SZMDS) and unreasonableness as jurisdictional error (as discussed in Li). This, of course, was a consequence of the manner in which the case was argued before his Honour and, appropriately, he determined the matter on that basis. The High Court has subsequently made clarifying comments in relation to jurisdictional error for unreasonableness in Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713.

94    This confluence of the separate principles is not to be unexpected. Those concerning review of a subjective jurisdictional fact are not dissimilar to those of judicial review for unreasonableness, and each is concerned with legality. The former seek to ensure that the state of mind which is a pre-condition for the exercise of power is formed in the manner implicitly prescribed by the Parliament. The latter seek to ensure the subsequent exercise of power is lawful and within the limitations which the Parliament imposes. Nevertheless, as these reasons show, the principles are separate and distinct, and unless they are merged by the High Court the authority of its existing decisions must stand, notwithstanding that some intermediate appellate courts disregard the distinction.

95    For completeness, it might be argued that the principles said to be taken from statements in the two joint judgments in SZMDS — suggesting illogicality and irrationality in the formation of a state of satisfaction were, of themselves, jurisdictional errors — were based on statements in SGLB which, ultimately, arose from a misapprehension of earlier cases. (A form of similar argument was advanced by Mr Gageler SC, as his Honour then was, in SZMDS itself at 613-614.) In SZMDS, reliance is placed (at [40] and [53] per Gummow A-CJ and Kiefel J and [102] and [119] per Crennan and Bell JJ) on SGLB at [37]-[38]. The statement of the “critical question” in that case (at [38]) gave as authority S20/2002 at [37], [52], [173] cf [9]. In S20/2002 at [37], McHugh and Gummow JJ accepted “for present purposes” the formulations by the appellant (espoused at [34]) of rationality and logicality review before dismissing the appeal because neither irrationality nor illogicality was demonstrated (see [37] and also [52], and [173] where Callinan J agrees that no irrationality or illogicality was demonstrated). At [9], Gleeson CJ’s statement that “[o]rdinarily…it will be necessary to go further” is, as identified at n 13 to [38] in SGLB, to the contrary. The argument continues that the ratio (to the extent there is any) in each of SZMDS, SGLB, S20/2002 and Eshetu is to the effect that where an alleged level of irrationality or illogicality (or unreasonableness) is not demonstrated, an application grounded on such a level must fail. Such a ratio does not imply the converse (that where irrationality or illogicality is demonstrated, an application for judicial review will succeed), and there are indications it might not: SZMDS at [40], [87] and [130]; SGLB at [34]; S20/2002 at [37], [52] and [173]; and Eshetu at [146], [159] and [187].

96    For present purposes it is not necessary to decide whether SZMDS (or SGLB, S20/2002 or Eshetu) stands as authority that irrationality or illogicality in the formation of a subjective jurisdictional fact are, themselves, grounds of jurisdictional error.

Protection visas and review of jurisdictional facts

97    The structure of the provisions for the granting of protection visas is one which involves two elements: the satisfaction or non-satisfaction of the Minister that the applicant meets the visa criteria and, consequent upon that, the granting or refusal of it. The power to grant is exercisable on the jurisdictional fact of the Minister reaching the requisite state of mind. Any challenge to the refusal to grant a visa can only be that the Minister’s asserted non-satisfaction that the relevant criteria were met was a conclusion not formed in accordance with the implicit requirements of the Act. In other words, that the subjective jurisdictional fact for refusing the grant of a visa did not exist. It is most unlikely that the Minister will have reached the state of mind that the criteria were met but refused to grant the visa in any event. That being so, the essential question is whether the claimed state of mind was vitiated by the existence of any one of the above identified defects. If so, the purported exercise of power is absent its foundational authority and suffers from jurisdictional error: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, 573-574 [72]; Craig v South Australia (1995) 184 CLR 163; S20/2002 at 1176 [59] per McHugh and Gummow JJ. In that respect, the existence or otherwise of jurisdictional error is not relevant to the review of the process by which the alleged state of mind was reached. Whilst the overall context of the consideration of the Minister’s decision is one of judicial review because, absent the existence of the jurisdictional fact, any purported exercise of power was without authority, the substance of the consideration is or is akin to merits review. This analysis was explained by Hayne and Gummow J in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 998 [37]-[38] where their Honours said:

The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a “jurisdictional fact” or criterion upon which the exercise of that authority is conditioned (Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 609 [183]). The delegate was in the same position as would have been the Minister (s 496) and the Tribunal exercised all the powers and discretions conferred on the decision maker (s 415).

The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1172 [37], 1175 [52], 1194 [173]; cf at 1168 [9]; 198 ALR 59 at 67, 71, 98; cf at 62). If the decision did display these defects, it will be no answer that the determination was reached in good faith.

98    Previously, in Eshetu, Gummow J (at 646-651 [118]-[128]) had carefully analysed the structure of the Act and identified that questions such as whether a visa applicant had a well-founded fear of persecution were criteria of which the Minister was required to be satisfied as part of the pre-condition to the exercise of power. For that reason, no question of jurisdictional error based on unreasonableness in the Wednesbury sense arose. His Honour then considered the appeal on the basis that the application had been more accurately expressed as one of an alleged failure of a jurisdictional fact.

99    Too often it is the case that, when judicial review is sought in relation to the Minister’s decision, the distinction referred to by Gummow A-CJ and Kiefel J in SZMDS is not respected, and jurisdictional error grounds are applied to determine the veracity of the subjective jurisdictional fact.

Was there a jurisdictional fact error in the present case?

100    It is necessary to turn to the circumstances of the present case to ascertain whether any relevant error existed in the formation of the jurisdictional fact of non-satisfaction by the Tribunal of the criteria for the granting of the protection visa. More particularly, to the extent to which the general argument advanced by the appellant can be tested against jurisdictional fact error, the question is whether the Tribunal’s determination that the appellant did not have a well-founded fear of harm was illogical or irrational and not based upon findings or inferences of fact supported by logical grounds. Necessarily, the resolution of that question requires consideration of the material before the Tribunal and the conclusions which it reached.

101    Before that task is undertaken, it is appropriate to consider whether, on appeal, this Court should determine whether the primary judge’s conclusion of an absence of illogicality was open or, alternatively, determine for itself whether the decision of the Tribunal was ultra vires. Although this was not argued on the appeal, given the views expressed in the several reasons for judgment in Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713, esp at [55]-[56] per Gageler J, it would appear that the same justification for the court reaching its own view as to the correctness of the primary judge’s decision applies where the alleged error is one of a jurisdictional fact. However, the approach to be taken will depend upon the nature of the alleged deficiency relating to the jurisdictional fact. For an objective jurisdictional fact — where the court is truly assessing the veracity of the fact relied upon — evidence called in the court below may involve questions of the credibility of witnesses or other less appellable factual issues. Even for a subjective jurisdictional fact, one theoretical avenue of attack is that the administrator did not actually hold the state of mind they said they did (but rather claimed to hold it to advance some collateral executive policy), a matter which might in rare circumstances lead to the calling of witnesses whose credit may be assessed by matters such as demeanour. But where the only evidence is in the form of a decision-maker’s reasons, there is no need for such an issue to be determined.

102    Leaving aside the question of whether the conclusions of the primary judge were “open” on the material before him, the primary judge’s reasons are of assistance in contextualising and resolving the issue now before the Court. In relation to those reasons, Mr McIntyre SC for the appellant submitted that:

The Federal Circuit Court Judge erred in reaching the conclusion he did, at [29] that the conclusions of the Tribunal as to improved conditions and relative security of Coptic Christians, based on the country information, were a sufficiently rational basis upon which to select and weigh the country information and come to a conclusion that the Applicant did not have a well-founded fear of persecution or risk significant harm.

103    The primary judge identified that the Tribunal had regard to the material before it and weighed it in concluding that the appellant did not have a well-founded fear of persecution, and further that she is not at risk of significant harm if returned to Egypt for complementary protection reasons. Whilst the primary judge accepted the material might have justified a range of conclusions, it could be inferred that the Tribunal placed more weight on the DFAT material which indicated that:

not only have conditions improved for Coptic Christians in Egypt since the election of President Sisi, and that widespread attacks have ceased, but that most Coptic Christians are able to live peacefully, including peacefully with their Muslim neighbours, and that there has been a restoration of police presence and authority in Egypt, and that overall the situation for Coptic Christians is “… relatively secure, particularly for those who reside in … Alexandria”: CB 350 at [96].

104    The primary judge then said (at [30]) of the Tribunal’s conclusion that the appellant did not have a well-founded fear of persecution:

The conclusion reached was neither unreasonable nor illogical on the basis of the principles outlined in Pandey at [41] per Wigney J in respect of unreasonableness, or in SZMDS at [130] per Crennan and Bell JJ and SZOOR at [15] per Rares J and [85] per McKerracher J in respect of illogicality. It is fair to observe, however, that it would have been open to a differently constituted Tribunal to arrive at a different decision, and that if the Court were engaged in merits review (which it is not) it too might have arrived at a different decision. But on judicial review that is beside the point in circumstances where the Tribunal fulfilled its statutory function by hearing the applicant’s case, setting out and plainly understanding the applicant’s claims, setting out the evidence and weighing that evidence, and then arriving at a conclusion which is reasonably and logically within the range of possible conclusions properly open on the evidence and materials before the Tribunal.

105    The determination that it was open to the Tribunal to reach the conclusions which it did, even if a differently constituted tribunal might have reached a different decision, can be taken as meaning the Tribunal’s conclusion was not illogical or irrational and not based upon findings that were not logically supported by probative evidence.

Was the jurisdictional fact vitiated by illogicality or irrationality?

106    It is to be kept in mind that the question before the Tribunal was whether the appellant, in her particular circumstances, had a well-founded fear of persecution in the sense that there existed a real chance of her suffering serious harm. It is not whether some Copts in Egypt or a particular group of them or those in a particular region might have such a fear. To a large extent, the appellant’s submissions generally conflated her position with the position of some Copts in some parts of Egypt. On occasion the overarching submission made before this Court seemed to be that, on the basis of the country information, all Copts in Egypt would have well-founded fear of persecution regardless of who they were and where they resided. At least at one point, Mr McIntyre SC for the appellant acknowledged that was the logical consequence of his submissions.

107    In the course of argument there was no real attempt to identify the particular illogicality or irrationality in the reasons of the Tribunal save that it was said there appeared to be a gap in the flow of the reasons between paragraphs [89] to [93] on the one hand, and [94] on the other. At its highest, the appellant’s argument must be that the conclusion that she did not have a well-founded fear of harm was illogical or irrational because only one conclusion was open on the evidence — being that all Copts in Egypt had a well-founded fear of harm — and the Tribunal did not come to it. Alternatively, it might be put that the conclusion was simply not open on the evidence or that there is no logical connection between the evidence and the conclusion.

108    When the issue is appropriately framed, it is apparent that the conclusion of the Tribunal was not illogical or irrational and no error was committed by the primary judge in not detecting any such error. In reliance on the DFAT reports and other information provided to it, the Tribunal identified the following matters which supported its conclusion:

(a)    Copts in Egypt have positions throughout all levels of society and the Copt community is politically and socio-economically diverse. Three government Ministers and prominent persons in business and the arts are Coptic Christians: Tribunal’s reasons at [85].

(b)    Whilst some Copts suffer discrimination, generally Copts form part of all sectors of the socio-economic spectrum from the very poor to the very rich in Egyptian society, including in the professions, and they have a range of educational levels: Tribunal’s reasons at [85].

(c)    Whilst some Copts can suffer discrimination in the workplace, the appellant did not. The appellant had completed qualifications as an optometrist: Tribunal’s reasons at [86].

(d)    Although some Copts face societal discrimination, the appellant had not faced societal or official discrimination, and the chance that she would suffer official discrimination was remote: Tribunal’s reasons at [87].

(e)    Individual Christians who attract the attention and antipathy of some Muslims in relation to their religion or religious activities continue to suffer violence and serious harm, and some radicals attack churches. There has been some level of attacks against Copts in recent years including community level clashes and violence. However, most Egyptians — especially those living in the cities and urban areas — work, live and socialise together with little regard to religious differences. There was some community level violence in rural and poor areas, but that was not where the appellant lived: Tribunal’s reasons at [88].

(f)    Most of the incidences of communal violence have occurred in the provinces of Upper-Egypt and Minya, and not in Alexandria where the appellant is located. In those areas where the disputes occur they generally arise from small-scale localised disputes which take on a religious dimension: Tribunal’s reasons at [88].

(g)    In May 2017, there was an attack on two busloads of Copts who were on their way to pray at an historic monastery. The attack took place in the western part of the Minya province and was apparently undertaken by Islamic militants. The Government’s response to the attacks included air attacks in Libya where the militants were trained: Tribunal’s reasons at [89].

(h)    The majority of incidents between Copts and Muslims occur in the province of Minya in Upper Egypt, where there are assertive Christians, a concentration of Islamists and a high rate of poverty: Tribunal’s reasons at [90].

(i)    Incidents of violence between Christians and Muslims occurred in Upper Egypt in 2016, although President Sisi made calls for national unity. DFAT indicates that whilst the Egyptian authorities are generally committed to preventing communal violence, that commitment varies between localities and occasional violence continues to occur in Upper Egypt: Tribunal’s reasons at [91].

(j)    There were attacks in Cairo and Alexandria in Easter of 2017 from extremists, and the declaring of a state of emergency in the country which was subsequently extended. It was apparent that the entity carrying out the attack was ISIS: Tribunal’s reasons at [92]-[93].

(k)    Police have made their presence felt since 2013 and the military intervention and election of President Sisi, and there have been substantial improvements under the Sisi government in terms of personal safety and freedom of worship for Copts, and most Copts live peacefully with their Muslim neighbours. Widespread attacks on Copts had ceased.

(l)    This led the Tribunal to conclude, as it did at paragraph 96 (set out above), that whilst tensions and potential for violence continued, the overall situation for Coptic Christians had improved since 2013 and is relatively secure, particularly for those who reside in Cairo and Alexandria. Occasional outbreaks of community violence are likely to occur especially in Upper Egypt.

109    The appellant did not cavil with the identification of the substance of the country information before the Tribunal as identified by the FCC, the effect of which is that as between Copts and non-Copt Egyptians there is general acceptance of each other and Egyptians tend to live peacefully with each other. The exception to that general proposition is in the poorer regions in Upper Egypt such as Minya where communal violence has occurred. In Alexandria, where the appellant lives or lived, the situation is one where Copts and non-Copts live together without religious differences. That has been so since about 2013 when the Sisi government assumed power, and it was not suggested that the appellant’s position should not be assessed as against other than the circumstances pertaining to the locale where she would live if she returned. If that were the totality of the relevant circumstances, it could not be said that the appellant had a real chance of persecution.

110    Against that background, it is necessary to consider whether the attacks on Coptic Christians around Easter 2017 alter that conclusion. Of those attacks, one church bombing occurred in Alexandria. The other was in the town of Tanta in the Nile delta and, in May, a bus carrying Copts was attacked in the south of Egypt. The attacks were carried out by Islamic fundamentalists backed by ISIS who expressly targeted Copts. However, the existence of one attack on one church in Alexandria against the background of a relatively peaceful existence does not necessarily give rise to a conclusion that, were she to return, the appellant would have a “real chance” of suffering harm. As the Tribunal noted, there are 33 churches in the Diocese of Alexandria and 2,000 in Egypt overall. It also observed that there are 20 million Copts in Egypt. Whilst the attack on the Church in Alexandria was no doubt planned, it was nevertheless a random attack and the Government took retaliatory action after the church bombings to deter further attacks.

111    Needless to say, the attacks on churches in Tanta and Cairo and the attack on the buses will raise the level of concern for the community generally and for Copts in particular, but they do not necessarily raise the overall risk of harm to the appellant were she to return to live in her community in Alexandria to the level that she has a real chance of suffering serious harm.

112    It could not be said to be illogical or irrational for the Tribunal to reach the conclusion which it did. It is apparent that it identified an improving situation for Copts in Egypt generally and, whilst there were some serious attacks on Copts in 2017 which the Tribunal recognised, they were isolated and limited. Further, the Sisi government was attempting to prevent these attacks. The conclusion that it was relatively secure for Coptic Christians living in Cairo and Alexandria was supported by the evidence. In the result, a logical and rational path of reasoning was open that a single serious attack on a Coptic Church in Alexandria in 2017 did not result in the appellant having a well-founded fear of harm were she to return there, given that it was considered to be otherwise safe. It is apparent that in reaching its conclusion and assessing the risk of harm to the appellant, the Tribunal was prepared to place weight on the content of the DFAT report as to the socio-political situation rather than giving prominence to the reports of the recent isolated attacks. Whilst, given the recent reports, the appellant may fear that she might be the victim of an attack by ISIS backed militants, the circumstances show that the chance that she could be a victim is, at best, minimal, insubstantial or merely a chance which could not be excluded. That falls well short of the existence of a “real chance”.

113    As was indicated by the primary judge, different conclusions might be reached by others on the same information, but the conclusion is not one which lacks a rational basis.

Result in the appeal

114    The conclusion from the above is that the Tribunal’s reasons were not attended with illogicality or irrationality and nor were any inferences not based on probative evidence. The appeal must be dismissed. There is no reason why the appellant ought not to pay the first respondent’s costs of the appeal.

Unreasonableness, irrationality or illogicality as a jurisdictional error

115    Although in the course of submissions the appellant and respondent referred to terms such as illogicality and irrationality, the appeal proceeded on the ground that the conclusion that the appellant did not have a well-founded fear of harm was unreasonable in a legal sense and that constituted a jurisdictional error. As has been explained, that approach was in error. Nevertheless, it is appropriate to consider the appellant’s case as best as that can be done on the basis that a jurisdictional error occurred because the exercise of power was unreasonable.

What is the scope of the jurisdictional error of unreasonableness?

116    Neither party made any submissions as to the scope of the jurisdictional error of unreasonableness save that the appellant asserted, in a general way, that it included illogicality or irrationality at the stage of making findings of fact. There was no submission by Counsel for the Minister to the contrary, and it may be that the Minister accepts that the courts should adopt an expansive view of the concept of unreasonableness and that it applies at all stages of decision making. Whether that be the case or not, the difficulty in the present case is that the alleged unreasonableness does not arise in the exercise of the power, or even a discretion, but in the finding of a fact. That fact being there was no real chance that the appellant would suffer serious harm in Egypt. This raises questions concerning the nature and extent of jurisdictional error arising from erroneous or unreasonable fact finding, and how far the law has developed from the historically orthodox position that a mere error of fact will not justify the quashing of an administrative decision.

117    In “The Final Frontier: The Emergence of Material Error of Fact as a Ground for Judicial Review” by C Forsyth and E Dring in Forsyth C (ed), Effective Judicial Review: A Cornerstone of Good Governance (OUP, 2010) at 245, 246-250, the learned authors identified the essential difficulty with immunizing errors of fact from judicial review is that it can lead to as serious an injustice as an error in the decision making process which underpins the accepted orthodox grounds of review. They observed that where this has occurred and the potential exists for great injustice, the courts have sought to bring the factual error within the accepted grounds of judicial review: see 252-254. In particular, in the United Kingdom, where constitutional restrictions on the examination of executive power are less limiting, there has emerged the concept of “material error of fact” as a ground for judicial review. The authors observed that the position in Australia has been more orthodox and referred to Brennan J’s comment in Waterford v Commonwealth (1987) 163 CLR 54 that “there is no error of law simply in making a wrong finding of fact”. They also observed that the necessity for an expansion of jurisdictional error to include erroneous fact finding was less in Australia than in the United Kingdom as, here, a person dissatisfied with a governmental decision can obtain full merits review by the Administrative Appeals Tribunal which, at the conclusion of its review, is to make the correct and preferable decision.

118    Whether it be because of the existence of the ability of the Tribunal to undertake full merits review or otherwise, at least as long ago as 1990 the High Court set its face against accepting that an erroneous finding of fact occurring in the course of administrative decision making could give rise to a jurisdictional error. Whilst the court’s obligation to ensure the legality of executive action cannot be diminished, where the Parliament has entrusted to the Executive the obligation to ascertain the facts on which it makes its decision, the examination of fact-finding under the guise of unreasonableness has been seen as an impermissible intrusion into the field of merits review. In the oft-cited words of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

119    In the same year in which Quin was decided, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Bond), the High Court identified the sole ground of jurisdictional error which might arise in relation to administrative fact finding was that of “no evidence”, being a ground of review which was incorporated into the Administrative Decisions (Judicial Review) Act 1977 (Cth). Mason CJ said (at 356):

Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference — in other words, the particular inference is reasonably open — even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

Earlier in his reasons, the Chief Justice (at 341) identified this restriction on the scope of review as being an essential, if not constitutional, aspect of the relationship between the judiciary and the Executive:

The expression “judicial review”, when applied to the traditional review functions of the superior courts in our system of justice, exercisable by means of the prerogative writs and the grant of declaratory relief and injunction, ordinarily does not extend to findings of fact as such. To expose all findings of fact, or the generality of them, to judicial review would expose the steps in administrative decision-making to comprehensive review by the courts and thus bring about a radical change in relationship between the executive and judicial branches of government.

Where a fact is found in the absence of any material to support it, it necessarily follows that an error in the decision making process authorised by statute has occurred. Where there is some evidential support for a finding, even if it is only slight, it is often said that no jurisdictional error will arise. Despite the decision in Bond, there is some inconsistency as to the scope of the principle in subsequent authorities. In WAJS v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 240 FCR 261 at 264 [11]-[12], the Full Court tended to treat the “no evidence” rule as being confined to the determination of a jurisdictional fact. In SZNKV v Minister for Immigration and Citizenship (2010) 118 ALD 232 at 242-243 [37]-[38], Kenny J stuck with orthodoxy and identified the “no evidence” ground as a jurisdictional error which cannot succeed unless there is “no evidentiary basis at all for the challenged finding”, and that if there is a slight evidentiary basis it would follow that the ground could not succeed. The ground was said to possibly extend to where the Tribunal makes a finding which is critical to its conclusion and there is no evidence to support it. To similar effect are the observations of O’Callaghan J in AEX15 v Minister for Immigration and Border Protection [2017] FCA 821 at [35] and in CHW16 v Minister for Immigration and Border Protection [2017] FCA 762 at [32].

120    Assuming then that the “no evidence” rule is one which gives rise to a jurisdictional error, a distinction must be drawn between a finding of fact for which there is no evidential support on the one hand and, on the other, a finding of fact which is supported by some evidence, albeit slight, but conflicting with significant contrary evidence. The first can be seen to be arbitrary or capricious and lacking in any justification. The second may be seen as a preference for one piece of evidence over other evidence. In the context of curial findings it might be that a preference for one piece of evidence over substantial contrary evidence may be regarded as unreasonable or lacking in logic because the yard stick against which fact finding is done is the balance of probabilities. However, where the power to determine facts is conferred by the Parliament on the Executive, and the determination occurs outside of the processes by which facts are analysed, tested and considered in courts, the preference for some evidence over substantial contrary evidence may be justifiable. Nevertheless, this is one of the points at which errors in factual analysis by an administrative decision-maker generate allegations of unreasonableness.

121    Despite the decision in Bond not having been overturned, in the years which have followed it, judicial review has encroached beyond hitherto limits and more than minimally into the area fact finding. Whilst the “no evidence” ground of judicial review is frequently referred to, more often courts are prepared to accept illogicality or irrationality in the fact finding process as a ground of jurisdictional error or, at least, as disclosing the existence of such an error. This has often occurred by conflating or combining the principles relating to error of jurisdictional fact for illogicality and irrationality with jurisdictional error for unreasonableness. The difficulties encountered in the scope of unreasonableness as a jurisdictional error and the erratic application of that principle to fact finding have been helpfully assayed by E Carroll in her article Scope of Wednesbury unreasonableness: in need of reform? (2007) 14 AJ Admin L 86 at 90-95, although even in that erudite article the distinction between review of a subjective administrative fact and judicial review for jurisdictional error is not always clear. In an article, Finding Fairness in Fact Finding: Material Mistake of Fact Review in Asylum Cases (2019) 26 AJ Admin L 100 at 103-107, E Pearson identified that the characterization of erroneous findings of fact as being symptomatic of unreasonableness, irrationality or illogicality, or a failure to exercise jurisdiction, has especially occurred in migration matters before this Court. It was also observed that several courts have found it is all too easy to “dress up” errors of fact as issues of law. Reference was made to R v Lord President of the Privy Council; Ex parte Page [1993] AC 682, 692, 694; Telcordia Technologies Inc v Telkom SA [2006] 139 SCA (RSA); [2006] ZASCA 112, [74]; McStravick v Western Australia [2001] WASCA 398, [17]. The learned author then observed:

While in England, and other common law jurisdictions herein examined, case law has evolved to rationalise and clarify the circumstances in which a material mistake of fact as a ground of review is available, the case law in Australia with respect to the review of factual findings continues to lack transparency. It is noteworthy that courts have been willing to accept grounds of review that, in essence, agitate material mistake of fact under the guise of irrationality or failure to exercise jurisdiction in circumstances where it would have been profoundly unjust not to do so. This body of case law states that the determination of jurisdictional error should not “be analysed by reference to fixed categories or formulas”, such as any jurisdictional/non-jurisdictional distinction between claims and evidence; rather that the “fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”. It can thus be said that the recognition of a material mistake of fact head of review premised broadly on “unfairness”, bringing into play concepts of materiality and seriousness, would not represent such a great leap for law in Australia that it would result in confusion. While it may not always be appropriate to apply rigid categories or formulas when determining jurisdictional error, the recognition of the ground would bring much needed transparency, rationality and clarity to Australian law by openly acknowledging the ability to review factual findings in defined circumstances, and providing a clear explanation for the intervention of courts in circumstances where grave errors of fact have been made by a tribunal and it would be profoundly unjust not to intervene.

(footnotes omitted)

122    Whether acceptance of a material mistake of fact as a jurisdictional error is a “great leap” or not is a matter on which reasonable minds will disagree. Nevertheless, given the historically orthodox position and the observations in Quin and Bond, a question arises as to whether it is a step which only the High Court is able to take. That difficult question was considered by Edelman J in Minister for Immigration and Border Protection v Singh [2016] FCA 575 (Singh) and in his earlier decision in Pilbara Infrastructure. In Singh, His Honour said:

[52]  It is well established that a mere incorrect finding of fact (if it is not a jurisdictional fact) or merely unsound reasoning is not  jurisdictional error: Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 35–36 (Brennan J); SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; (2003) 77 ALD 402, 407–408 [20] (the Court); Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 [20] (North and Lander JJ); SZRPT v Minister for Immigration and Border Protection [2014] FCA 24 [36] (Katzmann J).

[53]  Although an incorrect finding of fact (which is not a jurisdictional fact) will not be a jurisdictional error, it may be arguable that a jurisdictional error exists where an erroneous finding of fact can be characterised as unreasonable or irrational, even if the exercise of power is not expressly or impliedly conditioned upon reasonable and rational fact finding. In Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 [141]–[194], I considered the authorities in relation to erroneous factual findings. The issue had been raised in that case but it had not been fully argued. My view was that recognition of a ground of review based upon unreasonable or irrational fact finding may require development of Australian law. Although there may be arguments in favour of such a development, it should not be undertaken without careful consideration. It involves the boundary of a fundamental divide which still exists in Australian law. That divide is sometimes expressed as one between decisions that are within power and those which are ultra vires. It is sometimes described as the difference between a review on the basis of legality and authority and a review on the basis of “merits”. And it is sometimes characterised as an error which is “jurisdictional” and one which is “non-jurisdictional”: see S Gageler “The Master of Words: Who Chooses Statutory Meaning?” in A Connolly and D Stewart (eds) Public Law in the Age of Statutes: Essays in Honour of Dennis Pearce (Federation Press, Sydney, 2015) 12, 15.

[54] Some recent decisions have suggested that such review of findings of fact might have been contemplated by the decision of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 365–366 [72] where their Honours spoke of a decision maker committing jurisdictional error by acting unreasonably in a legal sense in relation to “[t]he more specific errors in decision-making, to which the courts often refer” and committing “a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally”. However, the reference to specific errors in decision making was accompanied by a footnote reference to Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(2) which is concerned with discretionary exercises of power, rather than findings of fact. Similarly, Gageler J referred to reasonableness as a condition of the exercise of a discretionary power as well as where reasonableness is a prerequisite to an exercise of a statutory power or performance of a statutory duty (370–371 [90]). His Honour did not say that mere unreasonable fact finding would suffice.

123    The above paragraphs were cited by Burley J in SZTKR v Minister for Immigration and Border Protection [2018] FCA 1613 although, ultimately, the question did not have to be determined in that case.

124    In his earlier decision in Pilbara Infrastructure, at [141]-[194], Edelman J had undertaken an extensive analysis of the authorities in relation to erroneous factual findings in administrative decision making and whether they might constitute jurisdictional error. Importantly (at [154]), his Honour recognised that, at least to that point in time, jurisdictional error for unreasonableness was confined to the exercise of discretion:

[154] Nevertheless, the traditional approach to unreasonableness review in Australian administrative law has focused upon unreasonable exercises of discretion by an administrative decision maker. Many, many statements about unreasonableness review speak of unreasonableness in the exercise of a discretion.

125    That was certainly the underlying rationale of the observations of Mason CJ (with whom Brennan J and Toohey and Gaudron JJ agreed on this point) in Bond (at 358-359) to the effect that the only ground for reviewing a finding of fact, which is not itself a decision, was the absence of any evidence:

The Federal Court has expressed its agreement with statements made by the House of Lords to the effect that courts exercising judicial review should leave the finding of facts to the public body appointed for that purpose by the legislature except where the public body acts “perversely”. In this context, “perversely” signifies acting without any probative evidence.

(citations omitted)

126    As Edelman J observed, Mason CJ subsequently in his reasons for judgment in Bond identified that the position in England, that an irrational factual finding or an irrational drawing of inference was a recognised ground of review, had not been accepted in Australian courts.

127    His Honour also considered the several reasons for judgment in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. That case, like the present, concerned an argument advanced that the finding of fact by a decision-maker that a person did not have a well-founded fear of being persecuted was open to review on the grounds of unreasonableness. He observed that Gleeson CJ and McHugh J found that there was no unreasonableness in the decision and said that there was a “serious question whether the suggested error [being one of fact] is of the kind to which the Wednesbury principle is directed”: Eshetu at 626 [40]. Hayne J expressed no view as to whether unreasonableness extended to fact finding. Gaudron and Kirby JJ did not suggest any limit on the scope of unreasonableness. Callinan J rejected the ground of unreasonableness was made out in the matter before the Court, and Gummow J, who had correctly identified the question as one of jurisdictional fact review, concluded that it was inapplicable to review of a finding of fact.

128    After his extensive review in Pilbara Infrastructure, Edelman J concluded that, as at that point in time, there was considerable doubt as to whether a court could review an administrative decision for unreasonableness based on a finding of fact, short of there being “no evidence” for the finding. He also considered that, given the previous statements from the High Court, only it was now able to develop the law on this topic. Not in the least because the question would involve a consideration of the constitutional framework in which the power of federal courts to issue the Constitutional writs arises from s 75(v).

129    Save to the extent that subsequent High Court decisions may have developed the position, I agree with his Honour’s observations as to the scope of relief available for unreasonableness. Great difficulty would follow for the administration of justice if the growing trend of regarding certain decisions of the High Court as falling into desuetude merely through the effluxion of time were to continue, rather than a strict application of stare decisis.

Minister for Immigration and Border Protection v SZVFW

130    Presently, the decision in Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 is the latest statement from the High Court as to the content of the jurisdictional error of unreasonableness in relation to the discretionary exercise of power. The several reasons for judgment of the members of the Court are somewhat diverse although they generally tend towards the same general result.

131    The Chief Justice identified (at 720 [10]-[11]) that, in the joint judgment in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, it was explained that the making of a decision in the exercise of statutory power was unreasonable in the legal sense when it lacked an evident and intelligible justification. Her Honour held that may be so where the decision is one at which no reasonable person could have arrived, although the concept of unreasonableness is wider than irrationality. The Chief Justice did not limit the jurisdictional error of unreasonableness to those cases where no reasonable person could have made the decision, but also recognised that the remedy is stringent and “the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion”.

132    Gageler J observed (at 728 [53]-[54]) that jurisdictional error for unreasonableness exists because for the repository of power to exercise it otherwise would be beyond the authority granted by the Parliament, which can be assumed, in the absence of an intention to the contrary, as requiring reasonableness in the exercise of powers conferred. His Honour accepted that this concept of legality shapes the scope of the jurisdictional error of unreasonableness in that the courts hold invalid as unreasonable the purported exercise of power in a way that no reasonable repository of the power would. In that way, the reasonableness required of a repository of power is the minimum to be expected of any repository of power in the circumstances. This leads to the scope of the error being “extremely confined”, although not exhausted by irrationality: at 729 [59]. There, his Honour also observed that this jurisdictional error is inherently sensitive to context and cannot be reduced to formulary. His Honour’s reference to the error being concerned with the minimum to be expected of the repository of power is reflective of his Honour’s comments in Li (at [76]) that:

Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.

The latter part of that passage suggests that, if the conclusion reached by the repository of power is one which might have been made in the reasonable exercise of power, the conclusion is not vitiated, even though the actual reasoning of the repository did not meet the standard of reasonableness. However, for the reasons given in the discussion concerning illogicality and irrationality in subjective jurisdictional fact review, the test of unreasonableness is not so rigorous. As his Honour said, the essence of the jurisdictional error is concerned with the existence of, inter alia, intelligibility in the decision making process. If the justification for the decision, being the reasoning process, is one which is within the range of possible logical justifications for the conclusion reached, it is one which is free from jurisdictional error. It is otherwise if the reasoning process is not within that range. That being so, if the ultimate conclusion is one which could have been reached by a justifiable reasoning process but was not, the error exists. It is the exercise of power which is required to have a logical and evident justification, not merely the outcome of it.

133    Nettle and Gordon JJ also appeared to adopt a test for unreasonableness which had the effect that an exercise of power did not suffer from jurisdictional error if it was one which fell within the scope of “acceptable outcomes”. Although that test gives rise to a narrower scope for unreasonableness in jurisdictional error it had the benefit that the Court was not required to identify any particular error, but merely conclude from the outcome of the power’s exercise in the particular circumstance that it is so unreasonable that it could not have been reached by a proper exercise of the power (at 733 [82]-[83]). Their Honours also noted that in order for the exercise of power to be reasonable it had to be exercised with reason and justice. What that required depended upon the limitations inherent in the scope and purpose of the Act by which the power was provided.

134    Edelman J (at 740 [134]) identified that the ground of unreasonableness is wider than patent unreasonableness (being where no reasonable repository of power could have made the decision) and that it is not appropriate to divide unreasonableness into predetermined species. He further said that “the precise content of an implication of reasonableness, where it is implied, will be based upon the context, including the scope, purpose, and real object of the statute.”

135    It should be observed that the unreasonableness considered in SZVFW was in the exercise of a discretion. The facts on which the power was exercised were established and uncontested. The only question was whether the exercise of power was unreasonable given those facts. No question arose as to whether and to what extent the Court might examine the findings of fact on which the discretion was exercised. On the other hand, there is nothing in any of the reasons in that case which limited the “unreasonableness” ground to the mere exercise of discretion once the facts on which it is based are found. The observations of Gageler J (in particular as to the intelligibility within the decision making process, and to “acceptable outcomes which are defensible in respect of the facts and law” in Li) might be taken as extending jurisdictional error to the fact finding process. However, there was apparently no argument in that case as to whether that extension was warranted and it is unlikely that the hitherto accepted position identified in Bond might be overturned by a side-wind. It is doubtful that the decision in SZVFW alters the position identified by Edelman J in Pilbara Infrastructure. (It may also be observed that an allusion to the maintenance of the distinction between unreasonableness in the exercise of discretion and the different approach to subjective jurisdictional facts can be seen in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481 at [23], [28]-[31] and [74]-[75].)

Is there a need to broaden jurisdictional error founded upon erroneous fact finding?

136    Despite the above, there is little doubt that the boundaries of the scope of jurisdictional review for factual error by a decision-maker have been expanding. This appears to be contemporaneous with an increase in the instances of erroneous fact finding in administrative decision making. As E Pearson and other commentators have identified, this is especially so in relation to migration matters, where unreasonable, illogical or irrational findings of fact can not only give rise to great injustice by denying a visa applicant a benefit to which they are entitled, but can also be productive of loss of life or the suffering of great harm where a genuine refugee is returned to a dangerous environment. It has been identified that where the protections afforded by the prerogative writs and statutory remedies in relation to administrative decision-making have been set at naught by a factual finding which effectively renders the statutory process otiose, the courts have been prepared to recognise the existence of jurisdictional error where hitherto its existence has not been accepted.

137    The increasing resort to reliance on so-called factual error based jurisdictional error, whether identified as unreasonableness, irrationality or illogicality is, as several commentators have observed, particularly apparent in migration matters where it is said that serious erroneous factual errors frequently occur. A passing understanding of the current circumstances relating to the processing of protection visas reveals several possible reasons for this. The most obvious is the substantial increase in the workload of those who have to process visa applications. The published data from the Department of Home Affairs records that approximately 28,000 protection visa applications were made to it in the 2017-2018 year, being an increase in approximately 10,000 on the previous 12 months. Necessarily, the resources available to those who have to deal with this large number of applications are limited. In these circumstances the risk of error by even the most dedicated and careful decision-maker is increased. Secondly, and in combination with this first factor, is the significant number of unmeritorious claims which are made to the Department. Even some slight exposure to the migration matters before the courts reveals the existence of a significant number of applications for protection visas based on false claims, untrue and implausible evidence, and falsified documentation. Unfortunately, it appears that many such disingenuous claims are encouraged or abetted by a few unscrupulous migration agents. The result is that a large number of applications will be rejected primarily on credibility grounds with the possible consequence being that the Minister’s delegates or members of review tribunals have become somewhat inured and cynical in relation to the applications before them. An overworked and under resourced decision-maker who anticipates a lack of frankness in the applications to be considered will naturally tend towards reliance on credibility findings as a principal basis for rejecting them wherever doubt arises. A determination that the applicant lacks credibility has the consequence that the claim advanced can be easily rejected and the state of non-satisfaction under s 65 of the Act that the criteria have been met can be easily reached. Whilst that may be justified in many instances, on occasion it can lead to error in the assessment of the evidence advanced in support of a meritorious claim.

138    Whether the above suppositions as to the cause of the increasing incidence of factual error in administrative decision-making are correct or not is not to the point. The central issue is that numerous instances exist whereby delegates and review tribunals have made factual findings which are unwarranted on the material before them in the sense that they lack a logical or rational basis or they are founded on findings which are not supported by probative evidence. The response by applicants for review and their legal advisers is to make broad challenges to the decision not to grant a visa by alleging jurisdictional error arising from alleged unreasonableness in the outcome of the decision. That is not the correct approach. The error, if it occurs at all, is in the formation of the state of mind of the decision-maker that they are not satisfied of the meeting of the criteria for the granting of a visa. As the authorities referred to earlier in these reasons reveal, the consideration of whether that is the case or not depends upon the application of the principles referred to by Gummow J in Eshetu and S20/2002. Moreover, it is likely that a review of a subjective jurisdictional fact will involve a more thorough and searching analysis of the repository’s factual analysis than is permissible when the exercise of power is considered against the rather more stringent principles identified in SZVFW.

139    With respect to the opinion of those who perceive that an expansion of jurisdictional error for unreasonableness is warranted to correct factual error in migration matters, no such expansion is needed or warranted. Given the structure of s 65 of the Act, the Minister’s state of satisfaction or non-satisfaction is susceptible to the courts’ not-inconsiderable powers to ascertain whether it is a state of mind which has been reached in accordance with the requirements set by the Parliament. The ground of review that the state of mind was illogical or irrational and not based on findings or inferences of fact supported by logical grounds would appear to provide courts with a greater ability to correct erroneous findings of fact than would the stringent test of “unreasonableness” even in the more liberal formulation given to it in SZVFW.

140    If it becomes appropriate to expand the scope of judicial review for factual error made by administrative decision-makers, that step cannot be taken by any intermediate appellate court. It is for the High Court to make the “radical change” in the relationship between the courts and the Executive of which Mason CJ spoke: Pilbara Infrastructure per Edelman J at [190]. To accept that jurisdictional error based on lack of coherency should develop through a want of precision of analysis and looseness of language is to accede to a form of unprincipled “incremental radicalism” of the worst kind. That is particularly so where the development takes place against the backdrop of the constitutional balance of powers.

141    In the present case, there is no evidence presently before the Court to suggest that approach is necessary, so that question is not necessary to resolve.

Conclusion as to the scope of unreasonableness

142    The position remains that unreasonableness in fact finding by the entity entrusted by the Parliament to find those facts does not afford, of itself, any ground of jurisdictional error, at least to the extent to which relief is sought pursuant to s 39B of the Judiciary Act or under the Constitution. The position identified by Edelman J in Singh and Pilbara Infrastructure remains an accurate statement of the law, and that is so taking into account the various reasons for judgment in SZVFW. Unless and until the High Court alters the position, the principles articulated in Quin and Bond limit the scope of judicial review based on factual error. Those decisions cannot be knocked over by a side-wind or by an imprecise application of the general principle. Additionally, whilst the perceived categories of jurisdictional error overlap, that is no warrant for construing a mistake of fact as unreasonableness merely because there is a dissatisfaction with the outcome of the decision-maker’s reasons.

143    Here the finding in question, that the appellant did not have a well-founded fear of persecution, was a factual one. It was based on the determination that there was no “real chance” of her suffering harm were she to return to Egypt. It was a finding made by the decision-maker in the course of forming an opinion as to whether the appellant satisfied the visa criteria. It was not one made in the course of the exercise of power but during a process antecedent to that exercise. As such, of itself, it could not be subject to judicial review in the sense that it would be vitiated by the identification of jurisdictional error. The appellant’s appeal was erroneously founded upon the view that such relief was available.

The position on the assumption that unreasonableness extends to findings of fact

144    The appeal was argued on the assumption that jurisdictional error may arise from a decision-maker making an unreasonable finding of fact. As such it is appropriate to consider the appeal on that basis.

The test of unreasonableness — lack of evident and intelligible justification

145    In SZVFW there was apparent support for a formulation derived from Li of the test for the jurisdictional error, which posited that it exists where the reasoning process of a decision-maker lacked an evident and intelligible justification. An error would exist where no reasonable person could have reached the decision in the sense that it is irrational (or “bizarre”), but the members of the Court identified that it was not so limited and it extended to other illogical decisions. Similarly, an error would exist where, in the particular circumstances, a power was not exercised with reason and justice as dictated by the limitations inherent in the scope and purpose of the Act providing the power. However formulated, the test is “stringent” or “extremely confined” such that the courts will not “lightly interfere” in the exercise of a statutory discretion.

146    The somewhat narrow scope of the jurisdictional error under consideration can be seen in the observations of the Full Court in Tsvetnenko v United States (2019) 367 ALR 465 at 484, where it was said:

[84] However, unreasonableness is not demonstrated merely by an error in reasoning, even an error that may be characterised as grave. Where the claim of unreasonableness is based on alleged unreasonable reasoning it must be demonstrated that the reasons fail to provide an intelligible justification for the result.

[85] The distinction is important because review for legal unreasonableness concerns the overall character of an administrative decision. Erroneous or illogical reasoning at a particular point in the decision-making process may or may not lead to the conclusion that the decision as a whole fails to conform to the implied statutory standard of reasonableness.

Application to the appeal

147    As the test for “unreasonableness” is narrower and more stringent than the cognate rule which applies when assessing the veracity of a subjective jurisdictional fact, it necessarily follows that, as the Tribunal’s reasons did not fail the latter, they will also not fail the former. Previously it has been identified that the reasons of the Tribunal were not irrational or illogical or based upon inferences of fact not supported by probative material. For the reasons there explained, the factual conclusion that the appellant did not have a well-founded fear of persecution also did not lack an evident and intelligible justification. The conclusion is one which is within the range of possible acceptable outcomes in respect of the facts and law.

148    It follows that even if the foundation on which the appeal was advanced, being that the factual determination in the satisfaction of a subjective jurisdictional fact was amenable to “unreasonableness” review or that the subsequent exercise of power was also amenable, the ground does not succeed. There was no so-called unreasonableness in the factual determination or in the subsequent exercise of power.

Result on appeal

149    The necessary conclusion is that the appeal must be dismissed.

150    There is no reason why the appellant ought not be ordered to pay the first respondent’s costs of the appeal.

Associate:    

Dated:    14 October 2019