Minister for Immigration and Citizenship v MZYNN

The delay issue 32 It is abundantly clear from the authorities that the occurrence of a lengthy delay between a hearing or the receipt of submissions and the making of a decision does not itself constitute error (whether jurisdictional error or other error) on the part of the decision-maker. What is required is the demonstration of some flaw in the process of arriving at the decision, that can reasonably be attributed to the passage of time. This is so whether the decision-maker is a court, a tribunal, or some other administrative official. It is true, as the federal magistrate said, that Heydon J in Aon said that 10 months was an excessive period to reserve an interlocutory judgment on issues relating to the preparation of a case for trial. His Honour's stern statement followed an express recognition of the absence of a "good explanation" for the delay. His Honour went on at [153] to link the delay with deficiencies in the reasons for judgment, namely: failure to refer to the affidavit evidence or the cross-examination of ANU's solicitor, failure to appreciate the gulf between what counsel for ANU said were the reasons for the amendment and what the evidence on the point was, and failure to identify what factors, if any, there were which explained ANU's failure to appreciate and raise the new claims earlier. Those deficiencies clearly had more to do with his Honour's view that the interlocutory judgment should be reversed than did the mere fact of delay. Heydon J appears to have been the only member of the High Court in Aon to deal with the delay issue. 33 In NAIS, the link between delay and jurisdictional error on the part of the Tribunal was that the Tribunal based its decision largely on the absence of credibility on the part of the applicant for a visa with whose case it was dealing. The concern of the court was with the ability of the Tribunal to recall anything about the way in which that applicant had given evidence when several years had passed between the hearing at which the evidence was given and the publication of the Tribunal's decision. Even so, two members of the High Court dissented. Even where credit is not the issue, there may be a danger that the passage of time will affect unconsciously the process of decision-making and lead to the making of the decision that is easiest to make and express. See Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189 (2004) 140 FCR 17 at 74. The authorities were reviewed by the Full Court in Haros v Linfox Australia Pty Ltd [2012] FCAFC 42 (2012) 287 ALR 507 at [26]-[30]. The Full Court emphasised the need for caution in finding that a judge has denied fairness to a losing party by reason of delay. The Full Court had regard to the practical means that a judge might have of refreshing his or her memory about the evidence and the arguments, so as to ensure that the judgment is sound. 34 In light of these authorities, as counsel for the Minister conceded, the federal magistrate posed the question correctly at [64] of her Honour's reasons for judgment, when she stated that the issue was whether the delay impaired the Tribunal's capacity to make an assessment of the credibility of the first respondent or in some other way rendered the decision unsafe. The issue on appeal is whether the federal magistrate answered that question correctly. 35 This is not a case in which the Tribunal resorted to any short cut to a decision, such as rejecting all or a substantial part of the first respondent's evidence on the ground that it lacked credibility. The Tribunal's reasons for decision occupy 59 pages and contain 269 paragraphs. They are detailed in terms of the material that was before the Tribunal and in terms of the reasoning on which the decision was based. Far from dismissing the first respondent's claims on the basis of his credibility, the Tribunal accepted that he was a credible witness. The only issue on which the Tribunal disbelieved the first respondent is his account of the alleged machete attack. The first respondent's case, both in the Federal Magistrates Court and on appeal, was that the incongruity between the Tribunal's acceptance of the first respondent as a credible witness at [181] of its reasons for decision (see [18] above) and its rejection of his account of the machete attack at [189] (see [19] above) could only be explained by the delay between the giving of evidence and the preparation of the reasons for decision. This argument was accepted by the federal magistrate at [77]-[78] of her Honour's reasons for judgment. In addition, her Honour said at [78] that it was hard to see how the Tribunal could have made an assessment of the first respondent's credibility on the issue of the machete attack so long after having heard his evidence. 36 The difficulty in accepting her Honour's reasoning is that the Tribunal did provide an explanation of its reason for the apparently incongruous finding about the machete attack. At [189] of its reasons for decision (see [19] above), the Tribunal said that the first respondent was unable to produce any evidence of his admission or stay in hospital or of the injuries he claimed to have sustained. Whether or not this proposition demonstrated a lack of understanding on the part of the Tribunal of the role of, and the need for, corroborating evidence, the fact is that the Tribunal chose to reject the first respondent's account of the machete attack on this basis. There is no possible connection between the Tribunal's views about the need for corroboration and the delay between its hearing and its preparation of reasons for decision. The Tribunal did not base its refusal to accept the first respondent's evidence on this issue on any finding as to his credibility. It refused to accept his account for the reason it gave. 37 It follows that the federal magistrate gave the wrong answer to the question she had posed. Her Honour should not have speculated on the reason for the Tribunal's finding about the machete incident when the reason for that finding was stated expressly by the Tribunal and was a reason that had nothing to do with delay. Her Honour misapplied the principles relating to delay in decision-making.

The particular social group issue 38 It was utterly wrong of the first respondent to assert, as he did in the third ground of his application to the Federal Magistrates Court, that he had claimed to be at risk of persecution because of his membership of a particular social group, being homeless men in Sierra Leone. It was entirely wrong of him to suggest that he had claimed that such a description of a particular social group should be construed to mean men in Sierra Leone without access to stable, reasonable and safe accommodation. In [15]-[16] above, I have set out the references that the first respondent and his migration agent made to homelessness in the material that was placed before the Tribunal. There was never an assertion that the first respondent was a member of any particular social group of homeless men or that such a group should be defined so as to include men whose accommodation was not stable, reasonable or safe. 39 The claim in the first respondent's original statutory declaration of 22 December 2008 was to the effect that his homelessness had rendered him vulnerable to attack by members and supporters of the APC and by members of the Tememe tribe in his home village. In the submission of the first respondent's migration agent to the Tribunal dated 8 February 2010, homelessness was not included among the alleged reasons for his fear of persecution. It was referred to in the preamble to the specification of those reasons as a means by which persecution of him for those reasons could be carried out, namely "rounding up of homeless people...physical assault, and possible death". The consistent theme was that homelessness was a factor that made the first respondent a more obvious target for his persecutors. There was never an assertion that homelessness (whether by reference to its ordinary meaning or by some extended meaning) was part of a reason for persecution, only that it created opportunities for persecution. The only reference to any extended meaning of homelessness appears to have been in the context of an explanation of the first respondent's membership of a team playing in the Homeless World Cup. The proposition that, although at the time the first respondent was living in the Youth Movement compound, he was still considered to be "homeless" appears to have been an explanation as to how he qualified for selection in that team. It certainly does not appear to have been an assertion that there existed a particular social group of homeless men, which included men who were not necessarily without somewhere to live, but whose accommodation was of a more precarious nature than might be considered desirable. 40 In these circumstances, the Tribunal took it upon itself to consider whether the factor of homelessness itself might give rise to a claim that the first respondent had a well-founded fear of persecution in Sierra Leone on the basis of his membership of a particular social group based on homelessness. It may have been unnecessary for the Tribunal to embark on this task, but it is difficult to be critical of the Tribunal for doing so. It is even more difficult to be critical of the Tribunal for having embarked on the task without moulding the criterion for membership of the suggested particular social group by reference to some extended meaning of homelessness which happened to fit the circumstances of the first respondent. The first respondent's evidence was to the effect that he lived in the Youth Movement compound because it was a refuge, and was only in danger if he left the compound alone. It is difficult to see how the Tribunal could have regarded that evidence as supporting a claim that living in the Youth Movement compound justified the first respondent being regarded as a member of a particular social group of homeless people, who were liable to be persecuted for the reason of their membership of that group 41 Having found that the first respondent had not been homeless, according to the ordinary meaning of that word, while living in the Youth Movement compound, and that the first respondent would not be homeless if he were to return to Sierra Leone, the Tribunal was under no obligation to go on and consider whether the ordinary meaning of homelessness should be extended, in order to justify a claim based on a particular social group defined by reference to that extended meaning. As I have said, this was never a case made by the first respondent himself or his migration agent. A finding that the first respondent had not been, and would not be, homeless disposed of the Tribunal's consideration of the issue of a particular social group related to homelessness. Contrary to the federal magistrate's statement at [103] of her Honour's reasons for judgment, the Tribunal did define the particular social group that it considered. It did so in the passage at [262] of its reasons for decision, set out in [21] above, where it referred to "the particular social group of homeless men in Sierra Leone." All it failed to do was to consider an extended definition, first advanced on behalf of the first respondent at the Federal Magistrates Court. It was not for the federal magistrate to gainsay the Tribunal's finding of fact that the first respondent was not homeless while he was living at the Youth Movement compound. A single reference to this compound as a "camp" is neither here nor there. Nor was it open to the federal magistrate to question the Tribunal's finding that the first respondent would be able to find accommodation if he should return to Sierra Leone, on the basis of her Honour's own view of the evidence as to homelessness. 42 The federal magistrate's conclusion that the Tribunal had failed adequately to consider what constituted the particular social group to which the first respondent claimed to belong was erroneous.

The unreasonableness issue 43 The origin of the principle of unreasonableness in judicial review of administrative decision-making is the judgment of the English Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230. It is important to understand that that case concerned the exercise of discretion by a local authority as to the conditions it inserted into a licence to conduct entertainment on Sundays. The Court of Appeal held that the particular conditions chosen were open to the local authority in the proper exercise of its discretion. In this context, Lord Greene MR enunciated the principle of unreasonableness in a single sentence: It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. His Lordship went on to say that to prove a case of that kind would require "something overwhelming". 44 Since that case, there have been many attempts to assert that the principle of unreasonableness can be applicable beyond the exercise of discretion. The difficulties of such a proposition were raised by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 (1999) 197 CLR 611 at [121]-[137] and further explored in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (2010) 240 CLR 611, especially by Crennan and Bell JJ at [121]-[131]. Unreasonableness cannot be established in respect of an issue on which reasonable minds might reach different conclusions. 45 The grant or refusal of a visa is not dependent on the exercise of discretion. Section 65(1) of the Migration Act makes it clear that, if the decision-maker is satisfied that the requisite criteria for the visa had been fulfilled, the visa must be granted and, if not so satisfied, the decision-maker must refuse the visa. It might be relatively easy for a court to say that a case was such that no reasonable decision-maker could have achieved a state of satisfaction. It is much more difficult to envisage a case in which a court could say that no reasonable decision-maker could have failed to reach a state of satisfaction. Attempts to persuade courts to this latter effect usually involve invitations to the courts to conduct their own reviews of the merits of the particular decision by substituting their own satisfaction for the non-satisfaction of the decision-maker, and thereby to usurp the function of the administrative decision-maker. 46 Even assuming that it would be permissible for the Court to apply the unreasonableness principle in the present case, it is a principle that can only be applied to the Tribunal's decision to affirm the refusal to grant the first respondent a protection visa. It is not a principle applicable to an individual finding of fact. As the Full Court pointed out in NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76 at [42], a single erroneous finding of fact is well short of what is required to constitute jurisdictional error, when the fact concerned cannot be characterised as a jurisdictional fact. In the present case, the factual issue of whether the machete attack had occurred as described by the first respondent was an important part of the first respondent's case in the Tribunal. If it had occurred, it would have been the sole occurrence that could justify a finding that the first respondent had actually been subjected to serious harm by reason of his political opinion. It could then have formed the foundation for a further finding that, if he were to return to Sierra Leone, the first respondent would be at risk of further serious harm for the same reason. There is no certainty that this additional step would have been taken, however. If it had followed this path of reasoning, the Tribunal might have found that, in light of the first respondent's low political profile, whatever interest in inflicting harm on him for his political opinion had existed before the first respondent left Sierra Leone might have abated in the meantime. 47 Even supposing that the unreasonableness principle could be applied to a single finding of fact, it is not clear that it would result in the conclusion in the present case that the finding concerned was one that no reasonable decision-maker could have made. The case for unreasonableness is founded on the inconsistency between the general finding that the first respondent was a credible witness and the specific finding that he was not to be believed in relation to the machete attack. For this purpose, it can be supposed that the Tribunal misunderstood the principles relating to corroboration, and wrongly assumed that it could not accept the uncorroborated evidence of the first respondent about the attack. It is still the case that a reasonable decision-maker might have taken the view that, if the first respondent had been struck with the blunt edge of a machete blade and had been reduced to a state that caused his attackers to believe him to be dead, and therefore to desist from the attack, the resulting injuries would have been sufficiently severe to require medical attention. In the absence of evidence of any need to seek medical attention, the reasonable decision-maker might have declined to accept the first respondent's evidence. 48 The hypothetical reasonable decision-maker might have found other reasons for rejecting the first respondent's account of the machete attack. He or she might have reviewed the history of the accounts of the machete attack, set out in [10]-[14] above, and concluded that the late raising of the incident and the changing nature of the accounts of it, both as to the time at which it took place and its severity, could be a good reason for not accepting that the incident occurred. If, as I have said, the incident had such importance as being the only occasion on which serious harm was said to have been inflicted on the first respondent by reason of his political opinion, it would seem to have been of sufficient importance to be mentioned in conjunction with the original application for a protection visa. 49 The existence of inconsistency between the Tribunal's general finding of credibility and its refusal to accept specific evidence does not provide any guide as to how another reasonable decision-maker would have approached the issue. Inconsistency does no more than to suggest that the two conclusions cannot stand together. It does not establish that the reasonable decision-maker would have come to the first conclusion, and therefore could not have come to the second. The reasonable decision-maker might equally not have come to the first conclusion. He or she might have been less generous to the first respondent in relation to the consistency of his accounts of events than was the Tribunal at [181] of its reasons for decision. The very inconsistencies of his accounts in relation to the alleged machete attack might have provided good reason for being less generous. 50 For these reasons, it cannot be said that the federal magistrate would have upheld the fourth ground of the first respondent's application to the Federal Magistrates Court, if her Honour had seen the need to deal with that ground.

Conclusion 51 The appeal must be allowed. The federal magistrate was in error in relation to both of the grounds on which she decided that the Tribunal's decision should be quashed. Her Honour's judgment cannot be upheld by reference to the ground relied on in the first respondent's notice of contention. The orders made by her Honour must be set aside. There must be substituted for those orders an order dismissing the first respondent's application to the Federal Magistrates Court. 52 No reason was advanced, and none appears, why the usual principle, that costs follow the event, should not be applied. The first respondent should therefore be ordered to pay the costs of the proceeding in the Federal Magistrates Court and of the appeal. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray.