The alternative proportionality argument
76 Particular (c) of the first appeal ground relies upon proportionality. At the hearing of this appeal the appellant requested that determination of this matter be deferred until the High Court delivered its reasons in Comcare v Banerji [2019] HCA 23. The appellant's counsel anticipated that the High Court might develop the concept of proportionality in a manner that might assist the appellant. After the High Court's reasons were delivered, the appellant accepted that the High Court referred to proportionality only in the limited context of the assessment of the constitutional validity of the relevant statutory provision, and so the reasons did not assist his argument.
77 The appellant propounds by particular (c) an alternative basis of his appeal, being that the Authority's conclusion that the appellant was not a witness of truth was disproportionate to the nature of the particular inconsistencies found, and contends that such an alternative basis might be made out even if a rejection of credibility is otherwise rational.
78 Whilst it is true to say that the Authority said that it did not find the appellant to be a credible witness and rejected the claims as identified above, I note that it did accept certain parts of his evidence, as is apparent from part of [18] of the reasons:
I accept that the applicant lived most of his life in Paranthan, moved to Kandivall in 2007, was displaced into Menik Farm in January 2009, was released from Menik Farm in June 2010 and moved to Jaffna and, after a year in Jaffna, returned to Paranthan.
79 The Authority also accepted the circumstances of his departure from Sri Lanka without a passport, as is implicit in findings made elsewhere in the reasons that on his return to Sri Lanka the appellant would be considered by the authorities to be a failed asylum seeker who departed Sri Lanka illegally.
80 However, to return to the appellant's submissions.
81 The appellant's argument proceeds on the basis that proportionality is not a recognised independent ground of jurisdictional error in Australian law: Bruce v Cole (1998) 45 NSWLR 163 at 185. Rather, the appellant seeks to rely upon proportionality as 'an alternative to orthodox principles of illogicality or irrationality'.
82 The appellant asserts that in this case disproportionality arises by the Authority's reasoning because:
(1) it used particular inconsistencies to influence the assessment of evidence of other events;
(2) it gave significance to inconsistencies as to matters such as dates rather than the underlying events;
(3) the context of the evidence (the use of interpreters and the lapse of time, for example) was such that there was no reasonable justification for relying on the inconsistencies to reject evidence more broadly; and
(4) the Authority overreached in finding that the appellant was not a credible witness when there should at most have been a narrower rejection of the events affected by the inconsistencies.
83 Proportionality has long been recognised by the courts as a tool in the context of testing the validity of subordinate legislation. See, for example, Dixon J's judgment in Williams v Melbourne Corporation [1933] HCA 56; (1933) 49 CLR 142 and Weinberg J's discussion in Vanstone v Clark [2005] FCAFC 189; (2005) 147 FCR 299; and more recently Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732 (Rares J).
84 Proportionality has also been used in the constitutional law context. McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178, a case on which the appellant relies, is such an example.
85 However, the appellant seeks to rely on proportionality in the context of judicial review of administrative action and, relevantly, in the context of a credibility finding. The appellant relies on references to proportionality and administrative decisions in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 and McCloy in support of his contention.
86 In Li, French CJ stated:
[30] The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, 'may have no particular legal consequence.' As Professor Galligan wrote:
'The general point is that the canons of rational action constitute constraints on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgment and choice both as to substantive and procedural matters. In other words, within the bounds of such constraints, different modes of decision-making may be employed.'
A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions.
(footnotes deleted, emphasis added)
87 In McCloy the High Court considered whether New South Wales legislation imposing restrictions on private funding of political candidates was invalid on the basis that it impermissibly infringed the implied freedom of political communication. The appellant relies in particular upon the following passage of French CJ, Kiefel, Bell and Keane JJ:
[3] As noted, the last of the three questions involves a proportionality analysis. The term 'proportionality' in Australian law describes a class of criteria which have been developed by this Court over many years to determine whether legislative or administrative acts are within the constitutional or legislative grant of power under which they purport to be done. Some such criteria have been applied to purposive powers; to constitutional legislative powers authorising the making of laws to serve a specified purpose; to incidental powers, which must serve the purposes of the substantive powers to which they are incidental; and to powers exercised for a purpose authorised by the Constitution or a statute, which may limit or restrict the enjoyment of a constitutional guarantee, immunity or freedom, including the implied freedom of political communication. Analogous criteria have been developed in other jurisdictions, particularly in Europe, and are referred to in these reasons as a source of analytical tools which, according to the nature of the case, may be applied in the Australian context.
(emphasis added)
88 Further, the appellant refers to the concept of 'proportionality testing' described in McCloy and submits that such testing can be transposed to the present issue, being the Authority's credibility assessment in the course of its review under s 473CC(1) of the Act. The plurality in McCloy held that, in determining whether the impugned law was reasonably appropriate and adapted to advance a legitimate purpose, it was appropriate to apply a stepped approach by 'proportionality testing' such that the extent of the burden imposed by the relevant measure could be described as suitable, necessary and adequate, explaining those stages as follows (at [2], [79]-[92]):
(1) suitability: whether there is a rational connection between the measure and the purpose of the provision;
(2) necessity: whether there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive or intrusive effect on the freedom; and
(3) adequate balance: a criterion requiring a value judgement, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.
89 As is apparent, the proportionality testing in McCloy was undertaken in a context where the relevant power had a purposive limit.
90 In summary:
(a) the appellant relies upon the references to 'administrative acts' and 'administrative discretion' in the excerpts from Li and McCloy as reflecting acceptance of proportionality as a criterion relevant to judicial review and extends that acceptance to the application of the tools of proportionality testing; and
(b) the Minister notes in his submissions the obiter nature of what was said in both Li and McCloy as to proportionality and administrative decisions, and underlines the context in which proportionality testing was described in McCloy, with its emphasis on statutory purpose. Whilst the Minister denied that proportionality or proportionality testing has any role in the circumstances of this case, the Minister appeared to accept that proportionality may be relevant in the context of judicial review of administrative decisions in the context of legal unreasonableness.
91 In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1, Allsop CJ referred to both Li and McCloy when discussing the concept of legal unreasonableness. Stretton concerned judicial review of the Minister's decision to cancel the respondent's visa on character grounds. Allsop CJ said the following of legal unreasonableness:
[10] This concept of legal unreasonableness is not amenable to minute and rigidly-defined categorisation or a precise textual formulary. For instance, in argument, the submission was put that [76] of Li in the judgment of Hayne, Kiefel and Bell JJ contained two (different) 'tests': (1) if upon the facts the result is unreasonable or plainly unjust and (2) if the decision lacks an evident and intelligible justification. The submission reflected the dangers of overly emphasising the words of judicial decisions concerning the nature of abuse of power, and of unnecessary and inappropriate categorisation. The plurality's discussion of unreasonableness at [63]-[76] in Li should be read as a whole - as a discussion of the sources and lineage of the concept: [64]-[65], of the limits of the concept of reasonableness given the supervisory role of the courts: [66], of the fundamental necessity to look to the scope and purpose of the statute conferring the power to find its limits: [67], of the various ways the concept has been described: [68]-[71], of the relationship between unreasonableness derived from specific error and unreasonableness from illogical or irrational reasoning: [72], of the place of proportionality or disproportion in the evaluation: [73]-[74] (as to which see also French CJ at [30] and see also McCloy v New South Wales [2015] HCA 34; 325 ALR 15 at [3] (French CJ, Kiefel, Bell and Keane JJ)), of the guidance capable of being obtained from recognising the close analogy between judicial review of administrative action and appellate review of judicial discretion: [75]-[76].
(emphasis added)
92 In Stretton, Griffiths J also referred to the passage from McCloy concerning the place of proportionality in judicial review:
[57] The concept of 'unreasonableness' can accommodate individual heads of judicial review, including a 'proportionality analysis by reference to the scope of the power' (at [73]). Thus, although the argument was not presented in this way in Li itself, the plurality stated that, if the Migration Review Tribunal gave 'excessive weight' to the question whether the visa applicant had had an opportunity to present her case, 'an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached (at [74]). It may be interpolated at this point that, in the recent decision in McCloy v New South Wales [2015] HCA 34 at [3], French CJ, Kiefel, Bell and Keane JJ described the term 'proportionality' in Australian law as describing a class of criteria:
…to determine whether legislative or administrative acts are within the constitutional or legislative grant of power under which they purport to be done.
(Emphasis added.)
This may indicate that the concept of proportionality is an aspect of judicial review of administrative action.
…
93 However, care must be taken in assuming that the concept of proportionality may be applied outside the recognised contexts of subordinate and delegated legislation and constitutional review, and outside the context of legal unreasonableness. In Lobban v Minister for Justice [2015] FCA 1361, McKerracher J said the following:
[96] While disproportionality may be a factor to take into account in considering a legal unreasonableness submission, it does not, under Australian law as it presently stands, taken in isolation, offer a stand-alone basis for concluding there has been jurisdictional error in the exercise of the decision. (Nothing said in McCloy v New South Wales [2015] HCA 34 (delivered since argument in this application) concerning proportionality as a tool in construing legislative power, rather than administrative action, affects the position.)
[97] The fourth ground is, in truth, only an element of the third ground. It would be necessary, as the Chief Justice has said in Li (at [30]), to conclude that the disproportionate exercise of the administrative discretion was in itself irrational or unreasonable as it exceeds, on any view, what is necessary for the purpose it serves. The Minister's decision to surrender cannot be so characterised. It is but one final step in the administrative process, which is governed by other legislative safeguards.
94 Those reasons were published prior to the delivery of Stretton, but later in Renzullo v Assistant Minister for Immigration and Border Protection [2016] FCA 412, McKerracher J said the following:
[40] Mr Renzullo also relies on [McCloy] (at [3]) in relation to the argument that the Decision was disproportionate, as a case in which the role of 'proportionality' in determining whether an administrative act is within power was recently affirmed. In my view, McCloy is not particularly helpful in this instance because McCloy did not involve the judicial review of ministerial administrative action. Rather, McCloy concerned the examination of State legislation in which issues of constitutionality arose.
95 In AMZ15 v Minister for Immigration and Border Protection [2016] FCA 1195 Katzmann J rejected an argument based on the primary judge's 'failure to undertake a proportionality analysis by reference to the scope of power', an argument said to be based on Li. The Tribunal in that case had rejected evidence on credibility grounds. Katzmann J considered there were several difficulties with the appellant's argument. For example, in contrast to Li, the appellant's case was not a case about the exercise of discretion. Her Honour concluded:
[77] It will be a rare case indeed in which a disproportionate response will lead to a finding of jurisdictional error. As Stretton well illustrates, even where a decision under review is a discretionary one, there are real dangers in applying a proportionality analysis to an administrative decision without sliding into merits review.
96 Subsequent to Stretton, Griffiths J also commented on the need for judicial restraint in assessing proportionality as an aspect of unreasonableness: Malek Fahd Islamic School Limited v Minister for Education and Training (No 2) [2017] FCA 1377 at [68].
97 Against the backdrop of those cases and some uncertainty as to the role of proportionality in judicial review, the context in which the appellant seeks to call in aid proportionality must be recalled. This case does not concern constitutional or legislative grants of power or delegated legislation. This is not to ignore the fact that reference has been made in the authorities to proportionality in the context of judicial review and legal unreasonableness. However, that is not the context of this case. This case is about the decision-maker's credibility assessment.
98 In DJS16 v Minister for Immigration and Border Protection [2019] FCA 254 Mortimer J considered a ground of appeal that asserted illogicality, irrationality and legal unreasonableness in the context of credibility findings. Her Honour said as follows:
[14] More recently, in considering these kinds of arguments, especially in relation to credibility findings, in Republic of Nauru v WET040 [No 2] [2018] HCA 60; 362 ALR 235 the High Court identified the following kinds of benchmarks:
(a) whether a conclusion of 'implausibility' was a 'bare assertion' (at [33]);
(b) whether factual considerations identified by a decision-maker as reasons to reject a narrative or an account were nothing more than speculation or conjecture (at [29]);
(c) whether an inference drawn by a decision-maker was a 'rational inference' (at [28]); and
(d) whether a conclusion was 'unsupported by basic inconsistencies' (at [31]).
[15] In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [57], Griffiths J also observed that the concept of proportionality may have a role to play in irrationality or legal unreasonableness. His Honour said, by reference to the plurality's judgment in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332:
The concept of 'unreasonableness' can accommodate individual heads of judicial review, including a 'proportionality analysis by reference to the scope of the power' (at [73]). Thus, although the argument was not presented in this way in Li itself, the plurality stated that, if the Migration Review Tribunal gave 'excessive weight' to the question whether the visa applicant had had an opportunity to present her case, 'an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached (at [74]). It may be interpolated at this point that, in the recent decision in McCloy v New South Wales [2015] HCA 34 at [3], French CJ, Kiefel, Bell and Keane JJ described the term 'proportionality' in Australian law as describing a class of criteria:
… to determine whether legislative or administrative acts are within the constitutional or legislative grant of power under which they purport to be done.
(Emphasis added.)
This may indicate that the concept of proportionality is an aspect of judicial review of administrative action.
(Original emphasis.)
[16] One of the issues not yet well-developed in current Australian administrative law is how the concept of legal unreasonableness operates when the attack is not on an exercise of power. In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at [53], Gageler J said:
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. 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.
(Footnotes omitted.)
[17] This description of the operation of legal unreasonableness, with which I respectfully agree, focuses on an exercise of statutory power. Thus, the concept sits comfortably with the circumstances in Li and in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437, both of which concerned the statutory power of a Tribunal to adjourn a review from time to time. So too, the concept sits comfortably with an 'outcome-focussed' analysis of an exercise of power such as the decision to cancel a visa: see Stretton at [21]-[22] (Allsop CJ), [62] (Griffiths J) and [92] (Wigney J).
[18] So far as I am aware, at least at the level of the High Court or the Full Court of this Court, since Li the concept of legal unreasonableness has not been applied to individual aspects of the fact-finding of a decision-maker or a Tribunal in the way it is put in this appeal. Counsel for the Minister agreed this was the case. Of course, insofar as the two principal judgments in SZMDS refer to legal unreasonableness as well as irrationality or illogicality, it might be said to have occurred in that context, but since that judgment, the two kinds of jurisdictional error appear to have gone their separate ways somewhat. In this appeal, counsel for the Minister accepted there did not appear to be any decisions invoking legal unreasonableness in this kind of context, and referred to what was said by two members of the Full Court in Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172; 255 FCR 486 at [36].
[19] That being the state of the law as far as I can ascertain it, I have focussed more on the irrationality arguments, which sit comfortably within existing authorities.
99 In my view, her Honour's reasoning is equally applicable in this case and there is no authority that presently expands the application of proportionality as a criterion, or proportionality testing, to the fact-finding exercise of the Authority that has been criticised in the Federal Circuit Court review application and this appeal. I do not consider it necessary or appropriate to undertake such an analysis in order to assess whether the Authority's credit finding was properly reasoned and carried out. That is to be assessed having regard to the authorities that specifically address jurisdictional error and credibility findings that are referred to above.
100 To return to the four matters raised by the appellant and summarised at [82] above, each of those matters fall to be considered applying the orthodox principles of assessment of credibility, such as the weighing of evidence, the cumulative effect of error, allowances to be made for difficulties faced by asylum seekers and the assessment of the manner in which the decision-maker has carried out their statutory task: see AVQ15; DAO16; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [78] (in particular as to reliance on minor inconsistencies); and Applicant NAAF of 2002. Each of the five matters upon which the appellant has sought to rely with respect to ground 1 of the appeal has been addressed having regard to those established principles and can be assessed without regard to proportionality.
101 In Murphy v Electoral Commissioner [2016] HCA 36; (2016) CLR 28 French CJ and Bell J noted at [37] that the structured testing described in McCloy was not necessarily a mode of analysis applicable generally to the concept of proportionality. Even so, the appellant contends that it can be transposed in the context of this case in the following manner: the measure undertaken being the manner in which credibility was assessed; the purpose being to form a view as to whether the delegate's decision was to be affirmed or remitted; the necessity comparator being whether there was another path of reasoning available on credibility other than a finding that the appellant was not a credible witness; the adequate balance requiring the consideration of the deleterious effect of the finding that the appellant was not a credible witness and so the rejection of his claims.
102 There is to my mind an artificiality in purporting to dissect the process and outcome of fact-finding and credit assessment in that manner. The McCloy tools were developed with a focus on statutory purpose. The search for statutory purpose is quite removed from the task of credibility assessment by an individual decision-maker. To suggest the tools can be simply transposed fails to allow properly for the process of decision-making that involves the synthesis and weighing of numerous factors: hence Kirby J's description of it in Applicant NAAF of 2002 as a complex mental process. An attempt to transpose such structured testing in the present context is not helpful. As already stated, the issue of the cumulative effect of inconsistencies and implausible evidence and whether they may bleed into and effect an assessment of other evidence is well recognised, as is the limited extent to which such matters can be reviewed without a court sliding into impermissible merits review.
103 However, it is also important to acknowledge that the decision-maker's task of comparing factual details and their significance for the purpose of carrying out its review, and in particular for the purpose of credibility assessment, may involve considering the proportionality of evidence: for example, whether particular inconsistences should be viewed as minor in the overall scheme of things or whether they are more significant. To consider proportionality in that sense is simply part of the synthesis and weighing of evidence involved in decision-making. An example is seen in AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 (Mortimer J):
[37] Proportionally, when compared to the factual detail contained in the appellant's accounts of when and how he was arrested in April 2011, let alone the factual details which led up to that claimed event, the references to how the appellant's wife discovered he was detained formed a miniscule part of the appellant's narrative. To make that observation is not to suggest such disproportionality will make out jurisdictional error. Nevertheless, it may be indicative of an irrational focus by the Tribunal on the minutiae of an account, while ignoring and failing to consider the core facts related by the appellant and which were objectively more central to his claim about detention - such as where he was detained, what the cell was like, whether he was detained alone or with others, how often he was questioned, by whom and what about, who detained him, what else occurred during his detention, and so forth.
(emphasis added)
104 Considering proportionality in that sense forms part of the assessment of whether a credibility finding has been made in accordance with established principles (AVQ15) as to illogicality or irrationality.
105 It remains to address an alternative submission made by the appellant. The appellant submits that even if a McCloy-style analysis is not applicable in a non-constitutional context, then Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 stands as authority for a 'gross proportionality analysis' and that such proportionality is revealed in this matter. The Full Court in Singh established a number of principles concerning judicial review of the exercise of a discretionary power for legal unreasonableness, as were also developed and explained in Stretton. In my view, Mortimer J accurately summarised the position as to the absence of present authority to justify reliance on the concept of legal unreasonableness in the context of fact-finding and credibility (and having regard to Singh): DJS16 at [16]-[18]. The present case fell to be determined applying recognised principles relating to the assessment of inconsistent and implausible evidence.
106 Finally, I note the recent decision in Brett Cattle Company Pty Ltd v Minister for Agriculture. Justice Rares referred in his reasons to the fact that in recent years the courts have used the test of proportionality in arriving at an assessment of whether the making of delegated legislation is a valid exercise of power: at [290]. His Honour cited in that context Li at [30] (at [290]). His Honour also found that the explanation in McCloy of how proportionality operates as a tool of analysis in the constitutional context is apposite to the analysis of proportionality in determining the validity of delegated legislation: at [300]. His Honour addressed these issues in the context of delegated legislation. However, as already noted, the present case is different and the application of proportionality criteria in the context discussed by Rares J does not assist the appellant's argument.