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 .