APW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

THE TRIBUNAL'S DECISION 4 The appellant's claims for protection were set out in his application for the protection visa. A more detailed account of the appellant's claims appear in the primary judge's reasons for decision. 5 The appellant claims that a man named Mr Zhou who lived in the same village as the appellant pressured the appellant's former master, Mr Lin, to sell his home to him. The appellant claims that Mr Zhou and others subsequently went to Mr Lin's house and assaulted Mr Lin and the appellant. The appellant said that Mr Lin and his wife died shortly after in February 2014. The appellant produced death certificates for both Mr Lin and his wife which the Tribunal accepted as authentic. The appellant states that he then approached the Public Security Bureau ("PSB"), the media and the provincial government with complaints about Mr Zhou and his family. The appellant claims that he was subsequently arrested by the PSB and transferred to a detention centre for three weeks. He states that he was temporarily released on 28 March 2014 when his friend bribed the police to release him after which he left China. 6 The appellant claims that he would be arrested, imprisoned and subjected to significant harm if he is returned to China. 7 The Tribunal held that the appellant's evidence at the hearing was broadly consistent with his claims. The Tribunal accepted that the appellant and Mr Lin were attacked. However, the Tribunal did not accept that the appellant reported the attack to the authorities, that he was arrested, tortured and detained by the authorities, or that he was charged with anti-government offences before being released on bail. 8 The Tribunal referred to three difficulties with the appellant's claims concerning his involvement with the authorities after the attack. 9 The first difficulty related to what was said to be the lack of corroborative evidence of the appellant being charged and being released on bail. The second difficulty concerned with the lack of difficulty experienced by the appellant in departing China notwithstanding that he was on bail and subject to reporting conditions. The third difficulty related to the generality and lack of detail concerning his involvement with the authorities, his approaches to the media and his release on bail, all of which the Tribunal found to be confused and not persuasive. 10 The second difficulty related to the appellant's departure from China. The Tribunal did not accept the appellant's claim that he could leave China through legal means whilst simultaneously asserting that he had to report weekly to police. 11 The third difficulty referred to by the Tribunal concerned the appellant's oral evidence of his involvement with the authorities and his approaches to the media after the attack. The Tribunal considered that this evidence was unclear and confused compared to his detailed and consistent evidence relating to Mr Lin's death. 12 Having regard to the above, the Tribunal did not accept that the appellant would face a real chance of serious harm because of his political activities or opinions or from Mr Zhou and others if he returned to China. In the result, the Authority was not satisfied the appellant met the criterion specified in either s 36(2)(a) or s 36(2)(aa) of the Act. 13 The principal issue arising in the appeal concerns the first difficulty referred to by the Tribunal. 14 As is apparent from [21] of its reasons for decision, the Tribunal referred to four ambiguities in the document titled "Decision on Guarantor Pending Trial" ("the Guarantor Document") dated 28 March 2014. These were: the document refers to the appellant as a farmer; the appellant is described as suffering from a serious illness; the document states that a decision had been made to place the appellant under a guarantor pending trial from 28 March 2014, which is the date of the document; the document states that a decision had been made to place the appellant under a guarantor pending trial (suggesting that he had already been charged) whereas the document also states that he was "now under investigation". 15 It was on the basis of those four "ambiguities" that the Tribunal determined not to place any weight on the Guarantor Document. In the result, there was, as the Tribunal itself observed, no corroborative evidence of the appellant having been charged and released on bail.

THE PRIMARY JUDGE'S DECISION 16 The first ground of review asserted that the Tribunal did not give the appellant a fair opportunity to present his case and was biased. The primary judge considered this ground of review to comprise of two elements. First, the appellant was not given a fair opportunity to present his case and second, that the Tribunal made a preconceived judgment. 17 With respect to the first element of the first ground of review, the primary judge examined the evidence provided and noted that the appellant had not particularised his complaint. His Honour concluded at [32] that there was no material before the Court to indicate that the appellant was denied a fair opportunity to present his case. With respect to the second element of this ground of review, the primary judge similarly found at [33] that the appellant had failed to provide any particulars to substantiate his complaint. His Honour rejected the allegation of bias. 18 The second ground of review asserted that the Tribunal made findings that the appellant was a reliable witness yet made other findings that were adverse to him, demonstrating prejudgment on the Tribunal's behalf. The relevant ground of review, as set out in the primary judge's reasons, was as follows: 2. The Tribunal has stated I am a 'reliable witness' and my evidence was 'broadly consistent' yet continues on to indicate specific inconsistencies in my claims that has made his affirm my application. This contradicts the Tribunal's assessment of my evidence and, thus, I believe the Tribunal has predetermined the outcome of my application and has picked specific points in my claims to support his prejudgement. 19 The primary judge considered the relevant authorities dealing with a decision-maker's entitlement to weigh the material before it and to make findings before reaching any ultimate decision. His Honour referred to the High Court decision in Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 in support of his conclusion at [53] that there was no requirement for the Tribunal, having expressed its view that some of the appellant's evidence was reliable, to then proceed on the basis that all of his evidence was reliable. 20 The primary judge found at [80]-[81] that there were some errors made by the Tribunal in its reasons for declining to place any weight on the Guarantor Document. However, he accepted the Minister's submissions that these errors did not amount to jurisdictional error because they were not material to the Tribunal's ultimate decision to not place weight on the Guarantor Document. His Honour referred to Wigney J's decision in SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 and the decision of the Full Court in Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309 and concluded that the Tribunal had an independent and logical basis to place no weight on the Guarantor Document. 21 After referring to Gill at [82], the primary judge said at [84]-[91]: [84] The question in the current case then is whether the two factual errors in the Tribunal's process of reasoning in relation to the ultimate finding on the guarantor document (which was a part of the reasoning in the ultimate decision to affirm the delegate's decision), were material to that finding. [85] The Tribunal's reasoning in relation to the guarantor document, which led to the conclusion that no weight be placed on it, involved two matters which were not, in the requisite sense, logical or rational, but another two matters which were. [86] In essence, the Tribunal's finding that no weight be placed on this document concerned perceived ambiguities on the face of the document, and when compared with other evidence before it. [87] It is important to note that, unlike in Gill, in the four items identified by the Tribunal (at [21] of its decision record), each was found to contain ambiguity for reasons relevant only to each separate item. There was no process of weighing each of the items against the others to determine the relevant ambiguity which led to the finding that no weight was to be assigned to the document. [88] What remains therefore, is that of themselves, the two items which were logical or rational, and were reasonably open to the Tribunal, provide independent bases on which to base the conclusion that no weight be assigned to the document. [89] The Tribunal's finding that the document describes the applicant as a farmer, when he otherwise made no such claim, is not dependent on any other item. It stands alone. It cannot be said that the Tribunal's finding, of itself, in this regard was arrived at, or influenced by, the other three items. [90] Similarly, the guarantor document, in its terms, was not clear as to what stage the applicant had reached in the process to which he said he had been subjected. That is, was he still under investigation by the PSB, or had the investigation concluded, and was he awaiting trial, and not in detention because of the guarantee. [91] This ambiguity, or lack of clarity, arises from the face of the document itself. It also is not dependent upon any of the other items. Not the two items in which the Tribunal made error, nor the item (item 1) which was reasonably open to it. 22 The third ground of review asserted that the Tribunal decision denied the appellant the opportunity to seek protection in Australia. The primary judge dismissed this ground of review on the basis that it did not indicate any legal error and was instead seeking impermissible merits review.

GROUNDS OF APPEAL 23 The notice of appeal filed by the appellant raises three grounds none of which bear any relationship to the facts or circumstances of his case. Indeed, it appears that the three grounds of appeal set out in the notice of appeal are reproduced from a notice of appeal filed by a different party in a completely unrelated proceeding. 24 However, the appellant filed a brief written submission which raises some additional grounds regarding a complaint about the Tribunal's consideration of the Guarantor Document. 25 Mr Reilly, who appeared for the Minister, accepted, as did the primary judge, that at least some of the Tribunal's reasoning in relation to the Guarantor Document leading to its refusal to place any weight on it was problematic. In circumstances where the appellant was not legally represented, and the significance of the Guarantor Document, and the Tribunal's reasoning in respect of it were considered by the primary judge, Mr Reilly did not take issue with the failure of the appellant's notice of appeal or the appellant's written submission to clearly identify those issues or what the appellant would say, if legally represented, was an error committed by the primary judge in holding that illogicalities in the Tribunal's reasoning in respect of the Guarantor Document were not sufficient to justify a finding that the Tribunal made a jurisdictional error.

Submissions 26 The Minister concedes that there were issues with how the Tribunal assessed the Guarantor Document, but maintained that the errors were not material to the Tribunal's conclusion that no weight should be given to the Guarantor Document. 27 The Minister submitted that in circumstances where a finding plays only a minor role along the way to the relevant decision or provide additional support for the decision-maker's ultimate decision, and where other findings were sufficient to sustain the decision, an erroneous finding of fact or law may not give rise to jurisdictional error. The Minister relied on the decision of Wigney J in SZWCO and the decision of the Full Court in Gill in support of this argument. 28 The Minister also referred to Beach J's judgment in DTN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1525 where his Honour observed that whether subsidiary findings contaminate the basis for ultimate findings "all depends upon the context and circumstances". 29 The Minister submitted that the Tribunal's error in finding that the Guarantor Document described the appellant as suffering from a serious illness (a matter which the Tribunal mistakenly thought he had not previously raised) and the Tribunal's finding in relation to the ambiguity of the date of the Guarantor Document (which was illogical) did not undermine the decision not to place weight on the Guarantor Document. In particular, the Minister contended that the Tribunal's findings that the Guarantor Document described the appellant as a farmer (which he was not) and that it was also unclear on from the face of the Guarantor Document as to whether the appellant was under investigation or whether he was awaiting trial were both findings capable of supporting the Tribunal's decision not to attach any weight to the Guarantor Document. The Minister submitted that any errors by the Tribunal in assessing the second and third "ambiguities" were therefore not sufficient to give rise to jurisdictional error.

CONSIDERATION 30 The specific illogicalities in the Tribunal's reasoning in relation to the Guarantor Document identified by the primary judge were what might fairly be described as extreme in the sense that two of the four relevant matters relied on by the Tribunal in concluding that it would give the Guarantor Document no weight were logically insupportable and lacking any evident and intelligible justification. In circumstances where the primary judge found, and the Minister did not dispute, that the Tribunal's decision to place no weight on the Guarantor Document was affected by such illogicalities, the question for the primary judge was whether this amounted to jurisdictional error. 31 A jurisdictional error will arise in circumstances where the Tribunal's ultimate decision can be said to be illogical or irrational or lacking an evident and intelligible justification. The present case is not within that category. However, the authorities show a decision-maker's illogical or irrational finding made on the way to the ultimate decision may also give rise to jurisdictional error if the finding is material to the ultimate decision. If the illogical or irrational finding was not necessary to the final decision because it sits independently of other findings which are sufficient to support the ultimate decision, then a jurisdictional error may not have been made. 32 In SZWCO, Wigney J referred to the joint judgment of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]-[131] where their Honours discussed "illogicality" and "irrationality" as a basis for finding jurisdictional error. His Honour rejected a submission that a finding of illogicality or irrationality can only give rise to jurisdictional error if it is shown that the ultimate decision is one that no reasonable decision-maker could make. His Honour then said at [63]-[64]: [63] Second, it is clear from the judgment of Crennan and Bell JJ in SZMDS that not every lapse in logic will give rise to jurisdictional error. If particular findings or reasoning "on the way" to the ultimate decision are challenged on the basis of illogicality and irrationality, it must be shown that the finding was not one that could have been made by, or reasoning that could not have been employed by, a reasonable or rational person. Emphatic disagreement does not suffice. If the finding of fact or reasoning employed was a finding or reasoning upon which reasonable minds might differ, it cannot be concluded that the finding or reasoning was illogical or irrational. As Robertson J put it in SZRKT (at [148]): In my opinion, the ground of "engaging in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds" is to be taken to refer to extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal. [64] Third, whilst the inquiry may not be limited to the question whether the end result is illogical or irrational, it does not follow that the ultimate decision will be found to have been affected by jurisdictional error if it can be shown that any finding made, or any reasoning employed, by the decision maker on the way to that ultimate decision may have been illogical or irrational. If the impugned finding or reasoning was immaterial to the ultimate decision, it is difficult to see how the decision could be said to have been affected by jurisdictional error: cf. SZRKT at [158]; SZOCT (per Nicholas J at [83]-[84]). Likewise, if the ultimate decision was supported by other findings that were open on the evidence, and other reasoning that was logical and rational, there may be no proper basis for concluding that the ultimate decision was so infected by the impugned finding or reasoning as to involve jurisdictional error. 33 Other decisions have also distinguished between legal unreasonableness which affects a finding made on the way to an ultimate decision and the legal unreasonableness of the ultimate decision itself. In Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, Allsop CJ, Robertson and Mortimer JJ said at [47]: [47] This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The "intelligible justification" must lie within the reasons the decision-maker gave for the exercise of the power - at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the Court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that Court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable. 34 See also Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513 (Griffiths, Gleeson and Colvin JJ) and especially the judgment of Colvin J at [72]-[95]. Those paragraphs in the judgment of Colvin J were referred to with approval by the Full Court in Tsvetnenko v United States of America (2019) 269 FCR 225 (Besanko, Banks-Smith and Colvin JJ). In that case the Full Court said at [83]-[85]: [83] Unreasonableness as a ground of review is concerned with whether an implied statutory standard as to the character of the decision to be made in the exercise of power has been satisfied. Unreasonableness may be demonstrated by showing that the result is unreasonable or by showing that the reasons do not provide an intelligible justification for the result (see the review of the authorities in Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513 at [72]-[95] (Colvin J)). [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. 35 Later in the Full Court's judgment reference is made to the need for an applicant to show that a legally unreasonable finding was material to the ultimate decision. The Full Court said at [96]-[99]: [96] … [I]n a case where unreasonableness is sought to be demonstrated by reference to the reasons given by the decision-maker the application of the requirement for materiality involves a consideration as part of evaluating whether the decision is unreasonable as to whether any illogicality or other defect in the reasoning was material to the decision. [97] So, in CGA15 v Minister for Home Affairs (2019) 268 FCR 362, the Court (Murphy, Mortimer and O'Callaghan JJ) was concerned with whether an error by a tribunal in statistical analysis was jurisdictional. Citing Hossain and SZMTA, the Court stated at [59]: Before characterising the illogical or irrational reasoning, or conclusion, as an error going to the jurisdiction of the decision-maker, it is necessary for the Court to be satisfied that the illogical or irrational reasoning was "material" to the ultimate decision, in the sense that it deprived the appellant of the realistic possibility of a successful outcome. [98] The Court then found that the error in statistical analysis was material to the tribunal's decision because it was one of three reasons underpinning its conclusion on an issue that had to be determined in the exercise of the decision-making power and it could be safely inferred that the analysis materially contributed to the tribunal's conclusion: at [61]. [99] In DPI17, Griffiths and Steward JJ first concluded that certain aspects of the reasoning of the administrative decision-maker were legally unreasonable because the failure to consider certain matters was unreasonable or plainly unjust: at [45]. Then, consideration was given by their Honours to whether that error was material and involved jurisdictional error: at [48]. It was found that the error was material because the ultimate decision might have been different if the matters had been considered: at [53]. Expressed in that way their Honours recognised that the conclusion of unreasonableness depends upon demonstrating that there was an effect on the result. 36 In the present case the Tribunal declined to give the Guarantor Document any weight due to the existence of what it described as four ambiguities but which I consider are more accurately described as irregularities, or perceived irregularities, in the form and content of the document. 37 As the Minister accepted in oral argument and the primary judge found, the second and third irregularities referred to by the Tribunal were not irregularities at all. The Tribunal's findings in relation to these two matters were not merely matters upon which reasonable minds might differ but reflected extreme illogicality of the kind that was at least capable of vitiating the Tribunal's ultimate decision. Whether or not the illogical findings vitiate the ultimate decision depends on whether they were material in the sense that they deprived the appellant of a realistic possibility of a successful outcome. 38 The first point to note about the Tribunal's reasons is that it accepted the appellant's claim that his former master, Mr Lin, and the appellant were assaulted by Mr Zhou and that Mr Lin died as a result of injuries inflicted on him by Mr Zhou. However, the Tribunal did not accept that the appellant later went to the authorities to report the incident, or that he was detained, tortured, charged or released on bail. 39 The second point to note is that, of the three difficulties referred to by the Tribunal when explaining why it did not accept the appellant's account of what occurred after Mr Lin's death, the first was the absence of any corroborative evidence. The Guarantor Document was presumably relied on by the appellant before the Tribunal as corroborative evidence that he was charged with the crime of "disturbing the public order" and that he was released pending trial on 28 March 2014 under the supervision of his guarantor only because he was suffering from a serious illness. However, as previously explained, the Tribunal relied on four particular matters which led it to decline to give the Guarantor Document any weight. 40 The primary judge emphasised that the first matter (ie. the appellant was not a farmer) was a matter capable of supporting the Tribunal's decision not to place any weight upon the Guarantor Document. His Honour reached the same conclusion in relation to the fourth matter (ie. while the appellant claimed to have been charged, the document stated that he was "now under investigation"). On appeal the Minister relied on both these matters as providing a sufficient and independent basis for declining to give the Guarantor Document any weight. The Tribunal's reasoning in relation to the second of these matters seemed to assume that because a person had been charged with an offence (as the appellant claimed he had been) that he could no longer be under investigation. Counsel for the Minister accepted (correctly in my view) that this was not a particularly strong point. Whether or not it involves extreme illogicality is something that I need not decide. 41 One of the difficulties facing the Minister in defending the Tribunal's decision is that the four matters referred to by the Tribunal when concluding that it would not give the Guarantor Document any weight appear to have been relied upon by it cumulatively rather than independently: cf Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83] per Nicholas J. It cannot be inferred that the Tribunal would have declined to give the Guarantor Document any weight had it not made the illogical findings. 42 I accept that the second and third difficulties referred to by Tribunal (and by me at [9]-[11] above) were themselves matters which could have independently led the Tribunal to conclude that important aspects of the appellant's claims should not be accepted. But the Tribunal did not approach the case in that way. There is nothing in the Tribunal's reasons to indicate that it would have made the same decision were it to have accepted that the Guarantor Document was corroborative of the appellant's claims. 43 I therefore respectfully disagree with the primary judge's conclusion that the two matters relied upon by the Tribunal that were not found to suffer from illogicality provided an independent and sufficient basis for placing no weight on the Guarantor Document. On the face of the Tribunal's reasons, it was the cumulative effect of all four matters that led it to decline to give the Guarantor Document any weight. 44 In my opinion the Tribunal's finding that there was no corroborative evidence was the product of illogical reasoning that was both extreme and significant to the outcome of the review. This illogical reasoning was material to the outcome and is likely to have denied the appellant a realistic possibility of a successful outcome. I am therefore satisfied that the Tribunal's decision was vitiated by jurisdictional error. 45 The appeal must be allowed, and the relevant orders set aside. In lieu of those orders there should be orders for the issue of a writ of certiorari quashing the Tribunal's decision and a writ of mandamus requiring the Tribunal to consider the appellant's application for review of the delegate's decision according to law. 46 Given that the appellant was not legally represented before the primary judge or on appeal, there will be no order as to the costs of the proceeding before the primary judge or the appeal. 47 Orders accordingly. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice .