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

Ground 2 60 As I have said, the second ground of appeal raises a ground of judicial review which was not raised before the primary judge and the applicant requires leave of the Court to rely on this ground. The applicant's reason for not advancing this ground before the primary judge is that "since the hearing before the primary judge, he has received advice from different counsel". The applicant submits that the ground has sufficient merit and the personal consequences of the Tribunal's decision for the applicant are sufficiently severe that the interests of justice require that he have leave to advance the ground. 61 In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588, the Full Court of this Court considered the circumstances in which an appellant would be permitted to rely on a ground of appeal not relied on in the Court below. The Court said (at [46]-[48]): 46 In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration and Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38]. 47 In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. 48 The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. 62 The first respondent submitted that Ground 2 in the Notice of appeal does not have sufficient merit to warrant a grant of leave. 63 The ground which the applicant seeks to raise is that the primary judge erred in not finding that the Tribunal had fallen into jurisdictional error by reasoning in a way that was irrational, illogical or unreasonable. More precisely, the applicant contends that the Tribunal made findings that were plainly or starkly inconsistent. 64 As I have said, Direction 79 identifies as a primary consideration in the decision-making process, the protection of the Australian community from criminal or other serious conduct. This, in turn, requires the decision-maker to consider the nature and seriousness of the non-citizen's conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. 65 With respect to the assessment of the risk that the applicant would reoffend, the Tribunal noted the link or "close correlation" between the applicant's substance abuse and "recidivist offending over 35 years" (at [77]). In a key paragraph in its reasons, the Tribunal found that there was a "convincing likelihood" that the applicant will relapse into drug abuse and commit further offences (at [86]). The full terms of that paragraph are as follows: Dr Nguyen assesses DGPZ's risk of relapse and recidivism as 'somewhere between low and moderate' in Australia. Having regard for all of the evidence, the Tribunal considers there is a convincing likelihood DGPZ will relapse into drug abuse and commit further offences. That is particularly so for offences involving dishonesty or violence. The risk DGPZ poses to the community is unacceptably high and this primary consideration weighs very substantially against revoking the mandatory cancellation of his visa. 66 Direction 79 identifies as an other consideration, extent of impediments if removed. This involved a consideration of any impediments the applicant may face if he was returned to Turkey. That involved (in this case) a consideration of a number of matters, including the applicant's past offending, his mental health condition, drug use, risk of reoffending, likely supports, prison conditions in Turkey and mental health services in Turkey. 67 Dr Tram Nguyen is a consultant psychiatrist. She assessed the applicant's mental health and gave oral evidence before the Tribunal. The Tribunal addressed her evidence in some detail and in the context of extent of impediments if removed, it said the following (at [130(a)] and [130(e)]): While the Tribunal accepts Dr Nguyen's evidence as it relates to her qualifications as a psychiatrist, she has no special knowledge or experience about the provision of mental health services in Turkey. Moreover, it emerged during cross-examination that Dr Nguyen was unaware DGPZ had previously lived in Turkey for approximately seven and a half years, giving rise to concerns about her assessment regarding DGPZ's ability to cope if repatriated. Other aspects of Dr Nguyen's evidence worthy of note are: (a) The Guardian newspaper article she refers to is not apposite to DGPZ's circumstances. The brief reference to overcrowding in Turkish prisons is nearly two years old, relates to an attempted coup in 2016, and the Turkish Government's attempts to extradite a non-Turkish citizen from Britain who was suspected of drug trafficking. There is no evidence that DGPZ would be imprisoned in Turkey if returned. Dr Nguyen's opinion was based on the misapprehension that DGPZ may be immediately imprisoned in Turkey upon return. The submission by DGPZ's legal representatives that given DGPZ's 'long term drug use,' there is a 'high chance' of him 'ending up in a Turkish prison or in police custody,' is speculative. That prospect is at odds with DGPZ's current stable psychological, presentation, submissions about wanting to maintain his abstinence from illicit drugs, desire to return to remunerative work, and intention to live a law-abiding life; … (e) The submission that DGPZ's risk of 'turning to drugs in Turkey to alleviate his isolations (sic) and distress,' which in turn exposes him to risk of harm from the prospect of criminal detention, 'where conditions are reported as abusive, harsh and degrading, and where basic health and mental health care is not available,' is speculative. (Footnote omitted.) 68 With respect to extent of impediments if removed, the Tribunal's conclusion was that on balance, it accepted that repatriation to Turkey would be very difficult for the applicant after living in Australia for most of his life and found that "this consideration weighs very substantially in favour of revocation" (at [131]). 69 The applicant's case is that [86], [130(a)] and [130(e)] of the Tribunal's reasons are addressing the risk or likelihood of events occurring in the future, that is, drug abuse and criminal offending: in [86], in Australia; and in [130(a)] and [130(e)], in Turkey. The Tribunal draws different conclusions about the risk or likelihood, namely: in Australia, a convincing likelihood; whereas in Turkey, speculative. The use of "speculative" suggests insufficient knowledge or information to assess the risk or likelihood. The applicant accepted that the risk or likelihood of events occurring may be different depending on the country which is the subject of the assessment, but submitted that the Tribunal had said nothing to indicate that the difference was to be explained on that basis. The applicant went further and submitted that the underlying findings of the Tribunal about lack of practical or emotional support, challenges in re-establishing himself in Turkey (at [125]) and challenges in accessing healthcare and sourcing prescribed medications in Turkey (at [127]) supported conclusions exactly opposite to those reached by the Tribunal. 70 In response to the applicant's submissions, the first respondent submitted that having regard to the context in which the findings were made, there was no inconsistency between them. In the alternative, any inconsistency did not rise to the level of the type of irrationality, illogicality or unreasonableness necessary for a decision to be vitiated. In the further alternative, a serious inconsistency in an aspect of an administrative decision-maker's reasoning does not of itself amount to jurisdictional error and it is the decision itself which must be irrational, illogical or unreasonable. In this case, the decision itself does not bear that characteristic or those characteristics because the error, assuming there was error, was not material in terms of the final decision. 71 The finding in [86] of the Tribunal's reasons was made in the context of the primary consideration of protection of the Australian community from criminal or other serious conduct and the sub-category of the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. In that context, Direction 79 required the decision-maker to have regard to the likelihood of the non-citizen engaging in further criminal or other serious conduct and, therefore, to make an assessment of the likelihood, "taking into account … information and evidence on the risk of the non-citizen re-offending". There is no such requirement in Direction 79 for the decision-maker in terms of the likelihood or risk of the non-citizen reoffending in the country to which the non-citizen will be returned if his or her application is unsuccessful. That is not to say that the decision-maker cannot make such an assessment or that a failure to do so cannot amount to unreasonableness depending on the circumstances of the case. 72 In my opinion, if there is inconsistency in this case, it is between the finding in [86] and the finding in [130(a)] of the Tribunal's reasons. I do not consider that the finding in [130(e)] raises an inconsistency because the matter described as "speculative" involves not only the risk of relapse and recidivism, but also the conditions in detention. 73 Paragraph 130(a) begins by dealing with the risk of the applicant being immediately imprisoned upon his return to Turkey. That is not a matter relating to the risk of relapse and recidivism. The Tribunal then deals with a particular submission made by the applicant's legal representatives which it characterises as speculative, that given the applicant's "long term drug use", there is a "high chance" of him "ending up in a Turkish prison or in police custody". That proposition is not of itself inconsistent with a finding that in Australia, there was a convincing likelihood that the applicant will relapse into drug abuse and commit further offences. The line is a fine one, but is a difference which precludes a conclusion of stark inconsistency. 74 The applicant sought to gain support for his submission from what the Tribunal then said (at [130(a)]): …That prospect is at odds with DGPZ's current stable psychological, presentation, submissions about wanting to maintain his abstinence from illicit drugs, desire to return to remunerative work, and intention to live a law-abiding life … However, those matters are relevant not to whether there is a risk or likelihood, but its degree or extent. 75 In my opinion, the type of irrationality, illogicality or unreasonableness necessary to give rise to jurisdictional error is not present in this case. In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 166, the Full Court of this Court said (at [22]): The following principles concerning judicial review were identified by the Full Court (Murphy, O'Callaghan and Anastassiou JJ) in Minister for Immigration and Border Protection v MZZMX [2020] FCAFC 175; 280 FCR 1 at [23]-[25]: 23 A finding of illogicality or irrationality requires the court to find that the Tribunal's decision was one at which no rational or logical decision-maker could have arrived on the same evidence: SZMDS at 657-658 [130]. 24 As the Full Court explained in ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [47] (Griffiths, Perry and Bromwich JJ): … for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, "extreme" illogicality or irrationality must be shown "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" (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 … at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 … at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result … 25 In DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [85]-[86], primarily by reference to the High Court's decision in SZMDS, the Full Court (Beach, O'Callaghan and Anastassiou JJ) said: Differences of degree, impression and empirical judgment between the approach and reasoning of the Authority as compared with the opinion of a court undertaking judicial review do not establish illogicality or irrationality (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78] per Heydon J). There is a high threshold. The question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker (SZMDS at [130] per Crennan and Bell JJ). As their Honours said at [131]: The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. Moreover, at [135] their Honours continued: Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. 76 Ground 2 in the Notice of appeal must be rejected. 77 I should record the fact that even if there was serious irrationality, illogicality or unreasonableness in the Tribunal's reasoning, a further question arises as to whether the decision itself was irrational, illogical or unreasonable. 78 In Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225, the Full Court of this Court said (at [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. (See also Pennie v Minister for Home Affairs [2019] FCAFC 129 at [24].) 79 This is a reflection of the fact that the implied condition of reasonableness by its nature incorporates an element of materiality. In MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 (MZAPC), Kiefel CJ, Gageler, Keane and Gleeson JJ said (at [33]): The qualification "ordinarily", and the focus on conditions required to be observed in the course of a decision-making process, are important. The threshold of materiality was not expressed to be additionally required to be met for every breach of every condition of a conferral of statutory decision-making authority to result in a decision-maker having exceeded the limits of the authority conferred by statute in the absence of an affirmative indication of a legislative intention to the contrary. There are conditions routinely implied into conferrals of statutory decision-making authority by common law principles of interpretation which, of their nature, incorporate an element of materiality, non-compliance with which will result in a decision exceeding the limits of decision-making authority without any additional threshold needing to be met. The standard condition that a decision-maker be free from actual or apprehended bias is one example. The standard condition that the ultimate decision that is made lie within the bounds of reasonableness is another. (Citations omitted.) 80 As to the requirement of materiality (within the concept of reasonableness), in MZAPC, Kiefel CJ, Gageler, Keane and Gleeson JJ said (at [2]-[3]). 2 Materiality was subsequently explained in Minister for Immigration and Border Protection v SZMTA to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof. 3 The explanation in SZMTA is sound in principle and consistent with precedent. SZMTA ought not to be revisited. (Citation omitted.) 81 Assuming (contrary to my conclusion) that there was irrationality, illogicality or unreasonableness in the Tribunal's reasoning of the type alleged by the applicant, the issue then would be whether, had it not occurred, there was a realistic possibility that the decision in fact made could have been different. Both parties approached that issue on the hypothesis that the finding in [130(a)] would have been a finding of "convincing likelihood" instead of "speculative". 82 The first respondent submitted this hypothesis would not have led to a different result because the finding actually made on extent of impediments if removed was as favourable as it could have been, that is, the matter weighed very substantially in favour of revocation. The applicant's response to this was that such descriptions as "very substantially" have no fixed value and it was at least a realistic possibility that the weighing exercise would have produced a different result. The point is not an easy one, but had it been necessary for me to reach this point in the analysis, I indicate that I would have accepted the applicant's submission.

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (32)

Cited By (2)