Grounds 1 and 2: irrationality, illogicality, absence of logical grounds and probative material
42 It is not in doubt that a decision made by the Tribunal may be affected by jurisdictional error where it is irrational, illogical and not based on findings or inferences of fact supported by logical grounds: Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at 67 [36]-[37]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at 20 [38]; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [130]-[139].
43 This basis for the finding of jurisdictional error was most recently considered by the High Court in SZMDS. In that case, the High Court (Heydon, Crennan and Bell JJ, Gummow ACJ and Kiefel J dissenting) allowed an appeal from this Court which had set aside a decision of the Tribunal on the basis that it was illogical or irrational. Heydon J concluded that the Tribunal's reasoning was not illogical. Crennan and Bell JJ, in a joint judgment, held (at [135]) that, on the probative evidence before the Tribunal, a logical or rational decision-maker could have come to the same conclusion as the Tribunal. On that basis their Honours held that the appeal should be allowed, although accepting (at [132]) that illogically or irrationality may constitute a basis for judicial review in the context of jurisdictional fact-finding. The essence of their Honours' reasoning was that 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 that was before the decision-maker. In this discourse the differences between the separate notions of "logical" reasoning and "rational" reasoning, and the constraints that each separately might impose on jurisdictional fact-finding, were not discussed by their Honours.
44 Gummow ACJ and Kiefel J, in a joint judgment, held (at [53]) that the Tribunal had made a critical finding by inference that was not supported on logical grounds. On that basis their Honours held (at [54]) that the Tribunal's decision should be quashed. The essence of their Honours' reasoning was that jurisdictional error may be manifested by the process of reasoning actually adopted by the decision-maker, without more.
45 There is an evident difference in approach in the respective joint judgments with respect to the consequences that attend the reasoning of a decision-maker that is found to be "illogical" or "irrational". Given this difference it is desirable to consider at the outset whether the Tribunal's decision in the present case was affected by irrationality or illogicality in the precise way in which the appellant contends it to have been. It is only if the Tribunal's decision was so affected that it becomes necessary to consider further the difference between the two approaches in SZMDS and the consequences that those approaches may have in the present case. The Federal Magistrates Court held that the Tribunal did not reach a decision based on illogical reasoning unsupported by facts. The initial question is whether the Federal Magistrates Court erred in so finding.
46 The appellant's submissions to this Court in relation to these grounds of appeal proceeded as follows.
47 First, the appellant submitted that at the heart of the Tribunal's reasoning was a conclusion that the arrest warrant was not genuine. The appellant submitted that, in reaching that conclusion, the Tribunal placed weight on the appellant's account of obtaining false documents to travel to Australia whereas, elsewhere in its reasons, the Tribunal had not accepted that account. The appellant submitted that it was illogical to use evidence that was disbelieved as a premise to undermine other aspects of the appellant's evidence.
48 Secondly, the appellant submitted that the Tribunal's finding that the appellant "had not been transparent about how he got to Australia and why" was based on a finding that the arrest warrant was not genuine. However, according to the appellant's submission, the latter finding was itself based on the premise that the appellant had come to Australia on false documents. The appellant submitted that, in this respect, the Tribunal's reasoning was circular and internally inconsistent.
49 Thirdly, the appellant submitted that the Tribunal's rejection of the appellant's claims of past persecution followed from a finding that he had not been transparent about how he came to Australia. However, when addressing the possibility that the appellant had been transparent about how he came to Australia (that is, that the appellant was not a karate player and had travelled to Australia on false documents), the appellant submitted that the Tribunal failed to reconsider the appellant's claims of past persecution in the light of that assumption.
50 Fourthly, and more generally, the appellant submitted that a finding that the arrest warrant was not genuine did not provide any basis for any adverse credibility finding, particularly given that there was no evidence that the appellant himself had been involved in obtaining the arrest warrant. The appellant submitted that it does not follow from a finding that the arrest warrant was not genuine that the appellant had never been arrested, detained or persecuted as he had claimed.
51 The appellant submitted that, as a result of these matters, the Tribunal adopted an undue and inappropriate focus on the manner in which the appellant had left Turkey and the authenticity of the arrest warrant. The appellant submitted that the Tribunal did not give any detailed consideration to his claims about the protests and demonstrations leading to his arrest and mistreatment. The appellant also submitted that the Tribunal's credibility findings were reliant on, and were infected by, illogical reasoning and findings.
52 It can be seen from the foregoing that these submissions overlap other grounds of appeal and comprise a number of strands. The main strand relates to the Tribunal's findings with respect to the genuineness or otherwise of the arrest warrant. In order to deal with these submissions it is necessary to say something about the Tribunal's findings and conclusions in general and then to pay close attention to precisely what the Tribunal did find and conclude about the search warrant.
53 First, at the outset, the Tribunal did not accept that the appellant had ever associated with or sympathised with union causes in Turkey. In this connection the Tribunal made a number of specific findings, including the following:
(a) Despite having claimed persecution by the police in Turkey for his association with the union movement, the appellant, when questioned about whether he had actually joined "the union", said that "he had never got round to it".
(b) The appellant spoke only in very general terms about "the union", never specified which union he sympathised with, and was unable to give details about the head of the union at a textile factory from which the appellant claimed to have been dismissed for engaging in union activities (such as shutting down machinery and engaging in union protests).
(c) After initially stating that, at this factory, he confronted management directly about conditions of work as a representative of other workers, he later recanted from that claim after being questioned about the dates or approximate timeframes of this activity.
(d) Whilst professing to protest for the rights of workers, the appellant did not undertake union activities when working in the construction industry.
(e) The appellant was not able to provide any meaningful or personal insight into what being a sympathiser with the union movement meant to him other than to say that he was a "leftist" without providing any detail about what being a "leftist" entailed.
(f) The appellant's statements in relation to being a "leftist" and a union sympathiser seemed vague and not related to any specific ideology.
54 The Tribunal concluded by finding as follows:
The fact that the visa applicant remained at the fringes of the union's activities appears to be incongruent with his claims that he was targeted for persecution by the authorities due [sic] his claimed involvement with the union movement, and as a consequence the Tribunal does not accept that the visa applicant had ever associated with or sympathized with the causes of the union in Turkey.
55 Secondly, the Tribunal did not accept that the appellant was ever a sympathiser with the TKP. In this connection the Tribunal made a number of specific findings, including the following:
(a) After stating at the hearing that he had high regard for the paper "Derenis" containing the thoughts of Dr Hikmet Kivilcim (the founder of the TKP), the appellant was unable to state what the paper was about other than "it was a type of journal which was nice to read".
(b) The appellant was not a member of the TKP and was not able to provide any further details about communist ideology.
(c) The appellant repeatedly responded to direct questions about this matter in a general and vague manner.
(d) The appellant's responses to questions about how his communist consciousness came to be formed were vague.
56 A number of things emerge from the Tribunal's adverse findings and conclusions with respect to the appellant's claimed union and political sympathies. First, those findings and conclusions constituted a significant part of the Tribunal's stated "several reasons" for the overarching finding that the Tribunal had "serious concerns" about the appellant's credibility. Secondly, those findings and conclusions were based principally on the Tribunal's assessment of the sufficiency and plausibility of the answers given by the appellant to the Tribunal's questions at the hearing. Thirdly, those findings and conclusions were expressed independently of and before the Tribunal's findings with respect to the issue of how the appellant came to Australia.
57 When turning to the issue of how the appellant came to Australia the Tribunal stated that there were serious contradictions in the appellant's testimony. The Tribunal noted that the appellant had initially applied for a short stay business visa to enable him to participate in the 2006 Kyokushin Karate World Cup in which he was listed as a participant. However, at the hearing, the appellant claimed that he was not a karate player, that he had never played karate and that he only participated in the opening and closing events of the 2006 Kyokushin Karate World Cup tournament.
58 The Tribunal also stated that it had "many unanswered questions" about the appellant's documentation to travel to Australia as an alleged karate player. The Tribunal noted that when he was asked about the other persons who appeared to be part of the Turkish team, the appellant became visibly nervous and defensive. In this context, the appellant said that his cousin (the other identified competing karate player) would not know anything about his claims of persecution in Turkey, although it seems that subsequently the appellant's cousin supplied a statement to the Tribunal in which he spoke of his personal knowledge of the appellant randomly being taken into custody and tortured by police. The Tribunal understandably described this statement as "problematic" in light of the evidence that the appellant had given of his cousin's lack of knowledge of these things as a reason for not wishing to involve his cousin in the Tribunal's deliberations. The Tribunal noted that when asked whether he knew anything about the coach of the team, the appellant responded that he had sat next to him on the plane but did not know anything about him. The Tribunal noted that on being further questioned about his interaction with the coach whilst on the plane, the appellant became visibly agitated. The Tribunal concluded that, by his answer, the appellant failed to deal with that question in a realistic manner and that the appellant was not being truthful about his relationship with the coach.
59 The Tribunal stated that it had not been able to locate information that would either confirm or disprove that the appellant was a karate player of international standing who was selected to represent his country. It noted the letter from the Chairman of the Australian Kyokushin Karate Association "vouching for the responsible nature of those participating in the event in Sydney" but recorded its inability to obtain information such as video footage of the tournament to verify whether the appellant had actually participated.
60 It was in the context of dealing with how the appellant came to Australia that the Tribunal expressed its concern about the authenticity of the arrest warrant and indictment. As noted above, until the hearing conducted by the Tribunal on 16 and 17 April 2007, it is clear that the Tribunal had been proceeding on the basis that the appellant was a karate player who had come to Australia as a bona fide member of a Turkish sports team to compete in the 2006 Kyokushin Karate World Cup. However the appellant's denials in this regard, coupled with the claim that his father had paid someone to organise all the papers for the appellant's travel to Australia, led the Tribunal to query on a number of occasions whether the search warrant and indictment could have been similarly falsified for the purpose of enhancing the appellant's application for a protection visa.
61 The Tribunal noted in a number of places in its decision record that the appellant had vehemently denied that the arrest warrant and indictment were false or that his father had anything to do with procuring a false arrest warrant and indictment. But the Tribunal also noted that the appellant had stated on many occasions that "in Turkey as long as you paid someone you could get anything you wanted". The Tribunal's decision record makes clear that, in the context where the appellant had denied on a number of occasions that the arrest warrant could have been falsified, and where the Department was unable to either confirm or deny that the arrest warrant had been falsified, the Tribunal had carried out further investigations that determined to its satisfaction that, in fact, the arrest warrant had been issued for the arrest of other persons. These investigations were carried out by the Australian Embassy in Turkey which had established that the reference number quoted on the arrest warrant and indictment related to specific persons who were clearly not the appellant. The fact that the Tribunal had ascertained that the warrant did not correspond to the appellant but had been issued for the arrest of other persons led the Tribunal to state that the appellant's credibility had been weakened considerably and to state that this fact confirmed its "finding that the appellant was not being transparent about how he got to Australia and why".
62 The following matters emerge from this part of the Tribunal's reasons. First, having found what it described as "serious contradictions" in the appellant's testimony about how he came to Australia, the Tribunal was nevertheless left in a state of "having many unanswered questions". The Tribunal did not express itself as having attained a state of satisfaction, one way or the other, that the appellant's documentation supporting his travel to Australia had been falsified (as the appellant had contended before the Tribunal) or had been issued on the genuine basis at the time that the appellant was an elite karate player who had been chosen to participate in the 2006 Kyokushin Karate World Cup to be held in Sydney.
63 Secondly, the Tribunal expressed the firm conclusion that the arrest warrant and indictment on which the appellant had placed reliance was one that did not correspond to the appellant but had been issued for the arrest of other persons. The Tribunal's decision record makes plain that the reason for this conclusion was the objective information that the Tribunal had obtained as a result of the further investigations that had been carried out on its behalf in Turkey through the Australian Embassy in that country. The Federal Magistrates Court seems to have treated this conclusion as leaving the Tribunal in uncertainty as to whether the warrant was genuine. Certainly the Tribunal did not state in terms that the arrest warrant and indictment were not genuine. However, it is difficult to see the Tribunal's conclusion, which the Tribunal itself expressed as a finding, as other than a stated rejection of the genuineness of the search warrant and indictment as documents that had been issued in respect of the appellant.
64 One further matter should be noted in this regard. Part of the material forwarded to the Tribunal by Victoria Legal Aid on 25 June 2007 was a statutory declaration made on the same day by the appellant dealing with, amongst other things, the arrest warrant. In paragraph 37 of that declaration the appellant said:
I did not see the warrant myself as it was provided to my father. I am aware that when my travel arrangements were made to come to Australia, this was one of the things that my father paid extra money to still enable me to leave the country. I became aware of this after I had left Turkey.
65 The Tribunal construed this statement as meaning that the appellant's father had paid others to obtain a falsified search warrant. Proceeding on this basis the Tribunal noted that the appellant's statement in his statutory declaration was at odds with his claims at the hearing that the arrest warrant was not false and that it was not part of the documentation that his father had paid for to enable him to travel to Australia. The Tribunal also found that the appellant's statement in the declaration, as construed by the Tribunal, also contradicted a written statement made by the appellant's father (also forwarded by Victoria Legal Aid on 25 June 2007) that he (the appellant's father) was handed the arrest warrant by a "police officer".
66 In the context of dealing with another ground of review, the Federal Magistrates Court gave detailed consideration to the evidentiary material before the Tribunal and concluded that the clear import of the appellant's evidence was that the arrest warrant was genuine and that a bribe had been paid to immigration officials to permit the appellant to depart from Turkey. The Federal Magistrates Court found that the statement quoted from the statutory declaration was clearly misunderstood by the Tribunal and that the Tribunal's observations concerning the inconsistencies of accounts in that regard were clearly wrong.
67 Moreover, the Federal Magistrates Court found that the Tribunal's decision was not expressed concisely or with precision and that the Tribunal's manner of expression and the structure of its reasoning supported the contention that the decision was "illogical". However, despite what was found to be the prolix and unstructured nature of the Tribunal's decision, the Federal Magistrates Court did not accede to the submission that the decision was illogical and not supported by facts.
68 Considerable emphasis was placed by the appellant on this misunderstanding in his submissions to this Court. However, accepting that the Tribunal erred in its understanding of what the appellant had stated in the quoted passage from his declaration, the Tribunal's decision record makes plain that the Tribunal's understanding of that piece of evidence was unrelated to its finding that the arrest warrant and indictment did not correspond to the appellant but had been issued for the arrest of other persons. That finding was based solely on the information that the Tribunal had received from the Australian Embassy in Turkey as a result of the investigations that the Tribunal had instigated because, up to that time, in light of the appellant's claims and the objective evidence then before the Tribunal, it could neither be confirmed nor denied that the arrest warrant was "a falsified one".
69 Having made these observations, it is now possible to give consideration to the appellant's submissions in this Court.
70 As to the appellant's first submission (see [47] above), the Tribunal's apparent finding that the arrest warrant was not genuine (or more accurately, its finding that the arrest warrant and indictment did not correspond to the appellant but had been issued for the arrest of other persons) was plainly based on the objective third-party information that the Tribunal had received through the Australian Embassy in Turkey. It was not based on the appellant's account of obtaining false documents to travel to Australia. The Tribunal raised and challenged the appellant with the prospect that the arrest warrant and indictment apparently issued against him may have been falsified as part of a process of obtaining false documents to permit the appellant to travel to Australia. It was this prospect that provided a reason for the Tribunal to instigate the further investigations that were undertaken on its behalf. It was, however, the information obtained as a result of those investigations which the Tribunal relied on in making its finding, not the prospect of falsity which was a catalyst for those investigations. Moreover, the Tribunal made no finding that it either accepted or rejected the appellant's account of obtaining false documents to travel to Australia. It went no further than to conclude that it had many unanswered questions about the appellant's documentation to travel to Australia as an alleged karate player.
71 Accordingly, contrary to the appellant's first submission, there was no illogicality involved in the Tribunal's finding that the arrest warrant and indictment did not correspond to the appellant but had been issued for the arrest of other persons.
72 As to the appellant's second submission (see [48] above), the Tribunal's finding that the appellant "had not been transparent about how he got to Australia and why" was not based on a finding that the arrest warrant was not genuine (or more specifically, a finding that the arrest warrant and indictment did not correspond to the appellant but had been issued for the arrest of other persons) but on its conclusion that there were serious contradictions in the appellant's testimony about how he came to Australia and the fact that, for the reasons it gave, the Tribunal had many unanswered questions about the appellant's documentation to travel to Australia as an alleged karate player.
73 Accordingly, contrary to the appellant's second submission, the Tribunal's finding that the appellant had not been transparent was not based on reasoning that was circular or internally inconsistent.
74 The Tribunal did state that its finding about the arrest warrant confirmed its finding that the appellant was not being transparent. There is nothing illogical or irrational about that conclusion. The appellant had relied on the arrest warrant as evidence that he was a person wanted by the authorities in Turkey because of his actual or perceived political views. However, the finding that the arrest warrant did not correspond to him but had been issued for the arrest of other persons plainly undermined that part of the appellant's account.
75 As to the appellant's third submission (see [49] above), the Tribunal did not reject the appellant's claims of past persecution simply because it considered that the appellant had not been "transparent about how he got to Australia and why". It is tolerably clear that the Tribunal did not accept that the appellant was ever arrested by the police or detained and persecuted whilst in detention for a number of reasons, including the fact that the Tribunal did not accept that the appellant had ever associated with or sympathised with union causes in Turkey and the fact that the Tribunal did not accept that the appellant was ever a sympathiser with the TKP. These findings were made in the context of the Tribunal expressing serious concerns about the appellant's credibility generally. The appellant's third submission thus proceeds on a misreading of the Tribunal's reasons. Moreover, as explained later in these reasons, after having found that the appellant had not been persecuted as he had claimed, the Tribunal was not bound thereafter to consider the possibility that he might have been persecuted when considering whether the appellant had a well-founded fear of persecution.
76 As to the appellant's fourth submission (see [50] above), the significance, once again, of the arrest warrant was that, if genuine, it was evidence that the appellant was wanted by the authorities in Turkey and that certain political beliefs had been imputed to him. It supported the appellant's claim to having a well-founded fear of persecution. However, the finding that the arrest warrant did not correspond to the appellant but had been issued for the arrest of other persons, removed a significant element in support of the appellant's claim, as he sought to advance it. It was the appellant who placed reliance on the existence of the arrest warrant. By vehemently denying the possibility that the arrest warrant could be, or was, false, the appellant vouched for its genuineness in relation to him. This was a matter that the Tribunal was entitled to take into account in assessing the appellant's credibility. The extent to which it took that matter into account was for the Tribunal to determine as part of its fact-finding task.
77 It follows from the foregoing that the appellant's submissions on these grounds of his appeal should be rejected. His more general submissions (see [51] above) should also be rejected. In that connection, the Tribunal's decision record does not reveal that the Tribunal adopted an undue or inappropriate focus on how and why the appellant travelled to Australia or on the genuineness of the arrest warrant and indictment. The Tribunal plainly gave consideration to the appellant's claims about his participation in protests and demonstrations but rejected his account based on its assessment of the sufficiency and plausibility of the material put before the Tribunal by the appellant.
78 The Federal Magistrates Court was not in error in its ultimate finding that the Tribunal did not reach a decision based on illogical reasoning not supported by facts. It follows that grounds 1 and 2 of the appeal should be dismissed. In these circumstances it not necessary to embark upon any further consideration of the difference in approach between the respective joint judgments in SZMDS.