CBS15 v Minister for Immigration and Border Protection

Ground 1(b) 12 The appellant submitted that the Tribunal made no finding concerning the appellant's claim that he was burnt with iron rods and rejected his contention to have been tortured without investigating it. 13 Paragraph [16] of the Tribunal's reasons does not address the claim made by the appellant that he was burnt with metal rods. Inferentially, that is because the Tribunal rejected the entire allegation of detention, interrogation and assault. However, counsel for the appellant submitted that the Tribunal erred in not directing that the appellant be examined medically for evidence of burns. He pointed to s 427(1)(d) of the Act which is in these terms: (1) For the purpose of the review of a decision, the Tribunal may: … (d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination. 14 He also relied on the following passage of the judgment of the plurality of the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [25]: Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that. (Footnotes omitted) 15 In his submissions, counsel for the appellant said that the contested fact - namely, that the appellant had been burned with metal rods - was critical, the inquiry was obvious, and the existence of burns could have been "easily ascertained" using the Tribunal's power found in s 427(1)(d) above. He stressed that in circumstances here where the allegation is serious, the Tribunal had a duty, as part of its review of the Minister's decision, to take basic steps to ascertain the existence of the only objective evidence which might have sustained the appellant's claim. 16 The Minister disagreed. He placed emphasis on [18] in SZIAI which states: It has been said in this court on more than one occasion that proceedings before the tribunal are inquisitorial, rather than adversarial in their general character. There is no joinder of issues as understood between parties to adversarial litigation. The word "inquisitorial" has been used to indicate that the Tribunal, which can exercise all the powers and discretions of the primary decision-maker, is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the tribunal as a contradictor. The relevant ordinary meaning of "inquisitorial" is "having or exercising the function of an inquisitor", that is to say "one whose official duty it is to inquire, examine or investigate". As applied to the tribunal "inquisitorial" does not carry that full ordinary meaning. It merely delimits the nature of the tribunal's functions. They are to be found in the provisions of the Migration Act. The core function, in the words of s 414 of the Act, is to "review the decision" which is the subject of a valid application made to the Tribunal under s 412 of the Act. (Footnotes omitted) 17 In his submission, the Minister contended that the information in question was not capable of being "easily ascertained" as it would require the expense of retaining a doctor to examine the appellant and then the preparation of a report for consideration by the Tribunal. As for the power reposed in the Tribunal by s 427(1)(d), the Minister relied upon the following passage from the judgment of French CJ and Kiefel J (as her Honour then was) in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [20]-[22]: Section 427(1)(d) is ancillary to s 424. Those two provisions and s 415, which confers upon the Tribunal all the powers and discretions of the person who made the decision under review, give the Tribunal wide discretionary powers to investigate an applicant's claims. But they do not impose upon the Tribunal a general duty to make such inquiries. Relevantly to the present case, as Gummow and Hayne JJ observed in Minister for Immigration, Multicultural and Indigenous Affairs v SGLB [(2004) 78 ALJR 992]: "whilst s 427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so." (Footnote omitted.) That observation was made in a context in which the Tribunal had considered it highly likely that the applicant for review was suffering from Post Traumatic Stress Disorder. The Court, by majority, held the Tribunal was under no duty to inquire as to the effect of that condition. The reasons for judgment of Rares J and the submissions made on behalf of SZGUR in this appeal assumed the existence, at least in some circumstances, of a duty on the part of the Tribunal to "consider" whether to exercise its power under s 427(1)(d). Rares J referred, in his reasons, to the judgment of the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [(2005) 88 ALD 304]. The Full Court there held that the Migration Review Tribunal was obliged, by s 361(3) of the Migration Act, to consider an applicant's request that it obtain oral evidence from named persons. The reference in his Honour's judgment to Maltsin pointed to some analogical argument about a duty to consider a request to the tribunal to exercise its power under s 427(1)(d). The analogy, if that is what it was, was inapposite given the differences between ss 427 and 361. There is an express requirement in the latter section that the tribunal have regard to an applicant's notice requesting the tribunal to obtain oral evidence from named persons. The analogy is not supported by resort to the obligation in s 424 that the Tribunal have regard to information which it obtains under that section. This is not least because the fact of a request is not information of the kind contemplated by s 424. Nor is the analogy supported by s 424A. The question whether s 427(1)(d) imposes a legal duty on the Tribunal to consider whether to exercise its inquisitorial power under that provision was answered in the negative by the Full Court of the Federal Court in WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [[2002] FCAFC 277]. The Court held that absent any legal obligation imposed on the Tribunal to make an inquiry under s 427(1)(d) "[b]y a parity of reasoning ... there is no legal obligation to consider whether one should exercise that power". That view is correct. That is not to say that circumstances may not arise in which the Tribunal has a duty to make particular inquiries. That duty does not, when it arises, necessarily require the application of s 427(1)(d). 18 The Minister also relied on the decision of the Full Court of this Court in Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214, where Heerey, Conti and Jacobson JJ said at [71]-[76]: We do not agree with the Federal Magistrate that the delegate's obligation under s 65 was to be satisfied that the criteria stated in Regulation 131.214 had been met. In VSAF [[2005] FCAFC 73], Black CJ, Sundberg and Bennett JJ pointed out at [16] - [17] that s 65 of the Act, and the decision of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274-275, make it clear that the section requires the decision-maker to refuse to issue a visa in the absence of a positive finding of satisfaction. Their Honours went on to say that there are many cases which show that findings of fact are not necessarily required to support a state of non-satisfaction. For example, in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] a Full Court said that s 65 of the Act requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied. It is true that the criteria in Regulation 131.214 are stated in the negative. But that does not alter the fundamental principle stated above. The delegate was obliged to refuse the visa in light of her failure to be affirmatively satisfied that the respondent did not have a history of involvement in unacceptable business activities. It could not be suggested that the delegate's conclusion was in itself irrational or capricious. The accumulation of a very large amount of cash from activities unidentified beyond the vague description "border trading" pointed strongly to a conclusion of non-satisfaction of the relevant criterion. Procedural fairness did not require the delegate to identify what business or investment activities were unacceptable, nor the nature of the respondent's involvement in such activities. In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction. 19 Here, the Minister submitted that the finding at [16] of the Tribunal's reasoning represented a state of non-satisfaction with the appellant's claim concerning his interrogation, detention and assault. Non-satisfaction as to the existence of facts which comprise a claim, does not require the Tribunal itself to make any findings of fact to support that conclusion. Lack of satisfaction, simpliciter, was sufficient. 20 On balance, I agree with the Minister's submission. The Tribunal is under no legal duty to consider the exercise of its powers in s 427(1)(d) of the Act and its inquisitorial function should be understood in the way described at [18] in SZIAI, supra. Objective corroboration of the appellants alleged injuries was a matter which could have, and should have, been raised by the appellant himself in the first instance. He was, in that respect, represented at the Tribunal by a registered migration agent. As the Full Court of this Court observed in Wozniak v Minister for Immigration and Border Protection [2017] FCAFC 148 at [28], in a case in which it was contended that the Minister had erred in exercising his power under s 501CA(4)(b)(ii) in failing to call for a certain pre-sentencing report ("PSR"): If the applicant considered that the PSR was important to his application for revocation in some way, it was a matter for him to say so. He was constructively on notice that the Department either did not have a copy of the PSR, or at least did not intend to have regard to it, by the fact that the transcript was sent and the PSR was not, and by the fact that no comment was sought in relation to the PSR. Procedural fairness required no more. There was no practical injustice in nothing being done to obtain the PSR. 21 The foregoing passage is applicable here. In that respect, this is not a case where a decision-maker made a positive finding of fact to support a given outcome: cf Splendido v Assistant Minister for Immigration and Border Protection (No 2) [2018] FCA 1158 at [35]. In such a case it may be incumbent for a decision-maker to ensure that facts found by him or her are supported by some evidence. Rather, as counsel for the Minister emphasised, this is a case of the Tribunal not being satisfied with the existence of a claim based upon the evidence before it. Generally speaking, it was for the appellant to assemble and produce that evidence in order to make good his claim. Ground (1)(b) is not made out.

Ground 2 22 The second alleged error (labelled as "ground 3" in the notice of appeal) contended that the Tribunal made two findings which were illogical or irrational in the sense of either being unsupported by any probative evidence or not being reasonable. In that respect, the appellant invoked the decision of Lord Greene, M.R. in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680; [1948] 1 KB 223 and the decisions of the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. The two findings were also contained in the reasons for decision of the Tribunal at [16], and were as follows: (1) first, the finding that "the [appellant] has not provided any evidence to support his claim that Mani was an LTTE financier"; (2) secondly, the finding that "even if Mani was a financier for the LTTE and even if the business relationship became known in 2009, the [appellant] and his father ran a legitimate business and payments went from them to Mani which presumably they could document from their own business records even if they paid by cash or money transfer". 23 In the case of the first alleged error, it was said that the Tribunal was unreasonable in requiring evidence which went beyond what the appellant was told by his alleged interrogators. In the case of the second alleged error, it was submitted that it was irrational to assume that a Sri Lankan business would keep business records in a way an Australian business might. 24 Following the hearing of the appeal before me, the High Court handed down its decision in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30. That case concerned the exercise of a discretion by the Refugee Review Tribunal to reach a decision in the absence of an applicant for review pursuant to s 426A of the Act. It was alleged that the discretion had been exercised legally unreasonably. The judgments of the Court surveyed the law relating to legal unreasonableness and illogicality. Nettle and Gordon JJ said at [78]-[83]: The task of the court, where it has been alleged that a decision is legally unreasonable, is to ask whether the exercise of power by the decision-maker was beyond power because it was legally unreasonable. That task requires the court to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision and, thus, assess whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power. Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power. That question is critical to an understanding of the task for a court on review. How that abuse of statutory power manifests itself is not closed or limited by particular categories of conduct, process or outcome. The abuse of statutory power is not limited to a decision affected by specific errors which bring about an improper exercise of power because, for example, the decision-maker took into account an irrelevant consideration or failed to take into account a relevant consideration; or exercised the power in bad faith, or for a purpose other than a purpose for which it was conferred; or exercised the power in such a way that the result of the exercise of power is uncertain. Nor is the abuse of statutory power limited to a decision which may be described as "manifestly unreasonable"0, or to what might be described as an irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it. A conclusion of legal unreasonableness may be outcome focused - where, for instance, there is no "evident and intelligible justification" for the decision. As Gageler J explained in Minister for Immigration and Citizenship v Li [(2013) 249 CLR 332], "[r]eview 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'". (Footnotes omitted) 25 At [84] their Honours also said: Moreover, legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power. 26 Kiefel CJ said at [10]-[12]: In the joint judgment in Minister for Immigration and Citizenship v Li [(2013) 249 CLR 332] it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal's decision in the present case. Statements such as that made in the Wednesbury case [[1948] 1 KB 223], that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies. In Minister for Immigration and Citizenship v Li reference was made to what had been said in Klein v Domus Pty Ltd [(1963) 109 CLR 467] regarding the need to look to the purpose of the statute conferring the discretionary power. Where it appears that the dominating, actuating reason for the decision is outside the scope of that purpose, the discretion has not been exercised lawfully. But this is not to deny that within the sphere of the statutory purpose there is scope for a decision-maker to give effect to the power according to his or her view of the justice of a case, without interference by the courts. (Footnotes omitted) 27 Gageler J said at [52]-[60]: Expression of the standard of legal reasonableness in terms of the minimum to be expected of any "reasonable repository of the power" in the circumstances of the impugned decision or action has the benefit of emphasising both the "extremely confined" scope and context-specific operation of the limitation it imposes. That is not to say that the standard might not be appropriately expressed in another form of words. Whatever room might remain for argument about the most appropriate expression of the standard of legal reasonableness, however, the nature of legal unreasonableness should be taken to be settled by the explanation of it in Quin [(1990) 170 CLR 1]. The requirement that a statutory power be exercised within the bounds of reasonableness is an implied condition of the statutory conferral of the power. The implication arises through operation of a common law presumption of statutory interpretation that a statutory power is conferred on condition that the power can be exercised only within those bounds. The presumption prevails to condition the exercise of the power on the repository complying with the standard of legal reasonableness absent statutory indication that the repository must meet some higher standard (an example of which is where the repository is restricted to exercising the power only on reasonable grounds) or will sufficiently comply with the statute by meeting some lower standard (an example of which is where the statute requires no more than that the repository exercise the power in good faith and for a purpose permitted by the statute). Where the presumption prevails so as to condition the exercise of the power on the repository complying with the standard of legal reasonableness, a decision made or action taken in purported exercise of a statutory power in breach of the standard of legal reasonableness is a decision or action which lies beyond the scope of the authority conferred by the power. … References in Li [(2013) 249 CLR 332], as in Quin, to legal unreasonableness as an "abuse of power" cannot be read as treating a judicial conclusion of unreasonableness as admitting of a margin of appreciation of the kind involved in a judicial conclusion of "abuse of process". Except to the extent specifically permitted by statute, a judge undertaking judicial review of administrative action would depart from performance of the judicial function and impermissibly enter the zone of discretion committed to the administrator were the judge to be drawn into forming his or her own conclusion as to whether the administrator had exercised power in a manner which, though lawful, might be characterised as an abuse. So much was recognised in the joint judgment in Li in the statements that "courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power" and that "[p]roperly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker". References in Stretton [(1990) 170 CLR 1] to a conclusion that a decision is legally unreasonable being "evaluative" and to the task being "not definitional, but one of characterisation" were usefully directed to emphasising that determination of whether a purported exercise of a statutory power is so unreasonable that no reasonable repository of the power could have so exercised the power is informed not only by "the terms, scope and policy of the statute" but also by "fundamental values" anchored in the common law tradition. Reasonableness is itself a traditional conception of the common law - a translation of "the human into the legal". Reasonableness is not exhausted by rationality; it is inherently sensitive to context; it cannot be reduced to a formulary. In the discernment of unreasonableness, "[t]here are no talismanic words that can avoid the process of judgment". (Footnotes omitted) 28 Edelman J said at [134]: Like other legal instruments, statutes often confer powers upon a decision maker without any express condition as to the manner in which those powers must be exercised. To the question: "how should the power be exercised?" the implication will not usually be: "in any way that the decision maker desires". Rather, it will usually be implied that the power should be exercised reasonably. As for the content of the duty of reasonableness, following the classic exposition by Lord Greene MR, the content of the implication of reasonableness as an independent ground of judicial review has often been expressed in this Court in terms similar to those which ask whether a decision is "so unreasonable that no reasonable repository of the power could have taken the impugned decision or action". In Canada, in a distinction now abandoned, this high standard of unreasonableness was once described as "patent" unreasonableness in contrast with "unreasonableness simpliciter". Although Lord Cooke of Thorndon presciently observed nearly two decades ago, and a majority of this Court more recently said, that the legal standard of reasonableness is not necessarily limited to patent unreasonableness, it is not helpful to attempt to divide unreasonableness into predetermined species. Rather, 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. (Footnotes omitted) 29 The foregoing passages from the judgments in SZVFW suggest that the test of reasonableness comprises a stringent rule which is not merits review of an impugned decision or the mere substitution of the judicial view for that of the executive. Rather, it is a context specific test which requires a consideration as to whether, having regard to both the scope, purpose and object of the relevant Act and the particular facts, the impugned decision lacks, for example, an evident and intelligible justification or is less than the minimum to be expected of any reasonable repository of the power in question. The content of reasonableness cannot, however, be divided into predetermined species. Nor will the Court lightly interfere on this ground which is "extremely confined". 30 Counsel for the appellant criticised the Tribunal's reasons at [16], set out above at [7]. He submitted that its reasons were logically disconnected from a determination of the veracity of the claims made about detention, interrogation and abuse. No part of the acceptance or rejection of that claim could turn upon the appellant establishing that the man "Mani" was in fact an LTTE financier or by the production of business records proving sales of fish. 31 I have some sympathy for this criticism of the Tribunal's reasons. It was no necessary part of the appellant's case, as I understood it, to prove that Mani was in fact a financier for the LTTE. On his evidence, he had met him only once. He may well have had no knowledge about Mani's involvement with the LTTE, if that be true. The accuracy of that allegation was not, so it seems to me, necessarily tied to the question as to whether the appellant was detained, interrogated and abused. Acceptance of the latter contention probably did not turn upon proving that Mani was or was not an LTTE financier. Similarly, I do not well understand how production of "business records" evidencing payments to Mani might have shed light on the appellant's claim of fear. The contents of business records from 2005 probably could not have rendered the events alleged to have taken place in 2009 more or less likely to have happened. Perhaps they could have assisted in proving the existence of the business relationship with Mani, but it would appear that this was accepted by the Tribunal below in any event. 32 As unsatisfactory as these reasons might be, I do not think that this is a case for curial intervention on the basis of the principles articulated in SZMDS, Li and, more recently, SZVFW. Here, and with respect to counsel for the appellant, I find that the Tribunal, by not accepting the claim made by the appellant, did not act in a legally unreasonable way. There was "justification" for it in the reasons assembled in [16] of the Tribunal's reasons. Some of these reasons may not appear to me to be convincing; some might be described as weak; but they were not irrational or devoid of logic or lacking an evident and intelligible justification. The second ground is rejected. 33 For these reasons, the appeal is dismissed with costs as agreed or as assessed. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward.

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