SHJB v Minister for Immigration & Multicultural & Indigenous Affairs

(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and (b) decide whether there was non-compliance by the visa holder in the way described in the notice. 109(1)The Minister, after: (a) deciding under section 108 that there was non-compliance by the holder of a visa; and (b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and (c) having regard to any prescribed circumstances; may cancel the visa.' 9 The appellant applied to the Tribunal to review the delegate's decision. The Tribunal considered the material that had been before the delegate and the further material that was provided by the appellant through his legal advisers. On 4 March 2003, the Tribunal affirmed the decision to cancel the appellant's temporary protection visa.

the proceedings at first instance 10 The appellant was unrepresented at first instance. His Honour noted that the issue before him was whether there was any jurisdictional error in the reasoning or decision of the Tribunal. 11 His Honour reviewed the Tribunal's reasoning, during the course of which it had noted that it was required to be positively satisfied that there was non-compliance by the appellant with the obligation to answer the questions correctly. His Honour referred to the material upon which the Tribunal relied and the fact that the Tribunal had rejected some of the material put forward by the appellant. 12 His Honour then said this: 'I have considered all of the matters put to me. The relevant principle is clear enough. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessment of that material was a matter for the Tribunal, not for this Court. The applicant has asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]: 'A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999) 197 CLR 611]…at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 (FC)…I agree with the remarks of Katz J in Zuway [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal.' This needs to be qualified at least to the extent that where the factual conclusion is so unreasonable that no reasonable person acting within jurisdiction and according to law could have reached it then there may be jurisdictional error: see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 230; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [39]-[53], [100]-[103], [122]-[147], [183]-[194]. However, there is no such error in this case, whatever might be thought of the analysis by the Tribunal. Plainly there was material before it that justified its conclusion. Whatever might be said about the reasoning of the Tribunal there is no basis for doubting its conclusion. It certainly could not be said that the conclusion is so unreasonable that no reasonable person could reach it. Having concluded that the applicant was not from Afghanistan, but instead was from Pakistan, the conclusion by the Tribunal that the temporary visa should be cancelled was almost inevitable. If the correct information had been given in the application as is required by s 101 of the Act it would seem clear that the applicant would never have been granted a visa in the first place. In the absence of any jurisdictional error in the reasoning or decision of the Tribunal, the application for judicial review must be dismissed.'

the appeal 13 The appellant was represented by counsel at the hearing of the appeal. Two grounds of appeal were argued. 14 The first was that the question of non-compliance with s 101 was a "precedent fact", which, on review, should be determined by the Court. The appellant submitted that the learned primary judge had erred in failing to hold that the actual existence (as opposed to the Tribunal's "mere satisfaction") of non-compliance by him was a condition upon which the Tribunal's jurisdiction under s 109 depended. That is, that the fact of non-compliance was a "jurisdictional fact". The appellant contended that the primary judge should have determined for himself, on the admissible evidence before the Court, whether there had been "non-compliance by the visa holder in the way described in the notice". 15 Counsel for the appellant then took us to the authorities relating to situations in which a Court, on judicial review, was obliged to determine for itself the jurisdictional fact upon which the administrative decision-maker's jurisdiction depended. 16 It seems to be common ground, and we agree, that the principles in this area are well established. It is sufficient to refer to Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135. 17 However, in our view the appellant has wrongly identified the jurisdictional fact which gives rise to the power conferred by s 109(1). In our opinion, the relevant jurisdictional fact is to be found by a proper construction of ss 108(b) and 109(1)(a). The jurisdictional fact is a decision by the Minister that there was non-compliance by the holder of the visa with the requirements of s 108. That decision gives rise to the power to cancel the visa. 18 That fact (the decision that there was non-compliance with s 101) is probably "a fact" which falls outside the ordinary meaning of that term, to use the words of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130]. As his Honour pointed out in the immediately following paragraphs, such a decision is reviewable under s 75(v) of the Constitution. 19 But in conducting such a review, the Court's function is not to decide, as the appellant submits, whether he did in fact fail to comply with s 101. In that regard, this case differs from the statutory regime in Enfield, where the relevant power (one untrammelled by the requirement of consent from the local council) simply did not exist if the proposed development was for "special industry" - see the joint judgment at [33] to [39]. 20 Similarly, in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55, a decision on which the appellant relied quite heavily, the jurisdictional fact was whether the relevant development was "… likely to significantly affect threatened species, populations or ecological communities, or their habitats …". In such circumstances, s 77(3)(d1) of the Environmental Planning and Assessment Act 1979 (NSW) required the development application to be accompanied by a species impact statement. The New South Wales Court of Appeal so held, as a matter of statutory construction, noting that the decision about the existence or not of a jurisdictional fact may (as in that case) involve the exercise of judgment. But the existence of the jurisdictional fact was to be ascertained objectively; the opinion of the consent authority was not determinative: see Spigelman CJ (with whom Mason P and Meagher JA agreed) at [81] to [94]. 21 We would distinguish the present case from Timbarra, because the statutory requirements are expressed in a basically different manner. Parliament has decided that the jurisdictional fact is not whether the appellant failed to comply with s 101, but whether the respondent's officer or the Tribunal had decided that there was such non-compliance. 22 The first question in this appeal is whether his Honour erred in finding that there was material before it that justified the Tribunal's conclusion. Or, to adapt the language of Gummow J in Eshetu at [145], was the satisfaction of the Tribunal based on findings or inferences of fact which were not supported by some probative material or logical grounds? In our view, the answer to both questions is no. One has only to refer to the material from the Organisation for Registration and the Directorate of Registration of the Ministry of Interior of the Government of Pakistan and compare that with some of the information given by the appellant in his application for a protection visa about the names of some of the members of his immediate family. The appellant criticised the official records from Pakistan as containing some inconsistencies. In our opinion, those criticisms go, impermissibly, to matters of weight or the merits. There was plenty of other information upon which the Tribunal relied and upon which it was, in our view, entitled to rely. 23 We would reject the first ground of appeal. 24 The second ground of appeal was that the Tribunal's decision was so unreasonable that no reasonable person acting within jurisdiction and according to law could have reached it. Accordingly there was jurisdictional error. The appellant contended that the standard of unreasonableness was not simply the so-called Wednesbury standard, but a standard of "relative reasonable satisfaction" because a fundamental human right was involved. 25 The appellant relied on a line of English authority starting with R v Secretary of State for the Home Department; Ex parte Bugdaycay [1987] AC 514; Chesterfield Properties PLC v Secretary of State for Environment [1997] EWHC Admin 709 at [29] and R v Lord Saville; Ex parte A [2000] 1 WLR 1855. 26 Counsel for the appellant then took us through, mainly by reference to detailed written submissions, what we think it is fair to describe as a minute examination of the evidence which was before the Tribunal and the evidence upon which it relied. The purpose of that examination was said to be to demonstrate that the Tribunal's decision was unreasonable by reference to "relative reasonable satisfaction". 27 The appellant denied that this led to merits review. However, in our opinion, an examination of the last eight pages of the appellant's written submissions exposes it as both an exercise in merits review and a scrutiny of the Tribunal's reasons with an eye keenly attuned to error. 28 We think that it is appropriate to bear in mind that this case falls to be decided under the new migration statutory regime which dates from 2 October 2001. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30, (2003) 198 ALR 59 the High Court of Australia dealt with some appeals to which the earlier statutory regime applied. But despite that difference there is, in our respectful opinion, some assistance to be gleaned from Applicant S20 in the disposition of this appeal. McHugh and Gummow JJ at [27] noted that s 75(v) of the Constitution entrenches a minimum measure of judicial review, citing Plaintiff S157/2000 v The Commonwealth (2003) 195 ALR 24 at 51-2 [103]. Their Honours, after noting that it was not the occasion to explore fully Wednesbury unreasonableness, made an observation, at [72], that cases could be imagined where an exercise of power, although not "improper" under the former s 476(1)(d) because it fell outside the class limited by s 476(3) (a sub-section which expressed the Wednesbury ground of unreasonableness), could produce a decision "not authorised" by the Act because it involved an exercise of power so unreasonable that no reasonable person could have so exercised the power. 29 We do not think it is open to us at this level to import and superimpose on that observation the English overlay of "relative reasonable satisfaction", based on the fact that the decision involves human rights. 30 It may be technically correct, as the appellant submits, that the roots of this English jurisprudence were well established before the legislative incorporation of the European Convention on Human Rights into United Kingdom law in 1998 by the Human Rights Act 1998 (UK). However, the common law can be seen to have developed in the United Kingdom in the context of: (a) that Convention; and (b) a long-established body of European community law in the area of human rights. This, so it seems to us, had a gradual, but increasingly important impact on the development of English common law even before such legislative incorporation - see, for example, Reg v Secretary of State for the Environment; Ex parte National and Local Government Officers Association, The Times 2 December 1992 per Neill LJ, Russell LJ and Rose LJ agreeing.

31 In any event, nearly all of the recent authority in this area of law at High Court level in this country has involved basic human rights. We were not taken to any case at that level which would warrant the gloss which the appellant seeks to put on the doctrine of unreasonableness in the administrative law sense.

32 In our view, the second question in this appeal (which we must say we have difficulty distinguishing from what was really involved in the first question) is whether it can be said that the Tribunal's reasons in this matter disclose an irrational, illogical or perverse process of reasoning to the extent that it may be concluded that its decision did not conform with the requirements of the Act. In those circumstances, consistent with the authorities, including Plaintiff S157 and Applicant S20, there would be such jurisdictional error as to enable the Court to say that the decision was not made under the Act. 33 Applying the current Australian law to matters such as the present one, it will be a question of degree whether the decision-maker's reasons are either so opaque [see, for example, the reference in Applicant S20 to House v R (1936) 55 CLR 499 at 505, at [68]] or so obviously unreasonable, as to justify the conclusion that the decision was not made under the Act. It will, in our view, always be a matter of degree. But that does not permit the minute merits examination which we were invited to carry out in this appeal. 34 In our view, nothing in the Tribunal's reasons or in the materials before the Court discloses any jurisdictional error. In our opinion, his Honour did not fall into any error of law when he dismissed the application. 35 We think that the appeal should be dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Appellant: Dr S C Churches with Mr S D Ower

Counsel for the Respondent: Ms S J Maharaj with Mr R Prince

Solicitors for the Respondent: Australian Government Solicitor