The Statutory and Legal Framework
14 A description of the reasoning of the Tribunal as irrational, illogical or unreasonable may simply be an emphatic way of expressing disagreement with the reasoning, conclusions, findings made and a determination reached by the Tribunal (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 [40] per Gleason CJ and McHugh J; Re Minister for Immigration and Multicultural Affairs Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 61 [5], per Gleason CJ). If so, the criticism may simply be a vehicle for attempting to contest adverse findings made by the Tribunal within the scope of the jurisdiction conferred upon it. If the criticism is to go beyond such a challenge, what is required is some precision in identifying the legal consequence of irrational or illogical reasoning and the legal principle to be invoked that attracts that consequence (S20/2002 per Gleason CJ [5]). That task requires identifying and characterising the suggested error and relating it to 'the legal rubric under which a decision is challenged' (S20/2002 per Gleason CJ [9]).
15 Here, the Tribunal has a statutory duty to review a decision (s 414(2)) to refuse to grant a protection visa (s 411(1)(c)) and is conferred with all the powers and discretions conferred by the Act upon the initial decision‑maker (s 415(1)) and a power to affirm, vary or set aside the decision and substitute a new decision (s 415(2)). In discharging that duty and exercising those powers, the Tribunal must determine whether it is satisfied or not that the appellant is a person to whom Australia has protection obligations under the Refugees' Convention as amended by the Refugees' Protocol (s 36(2)(a); s 65(1)(a)(ii) and s 65(1)(b)). If not so satisfied, the Tribunal must affirm the Delegate's decision (s 65(1)(b) and s 415(2)(a)). A protection obligation arises in favour of a non‑citizen in Australia who owing to a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. That inquiry requires the Tribunal to reach a state of satisfaction about the elements attracting that obligation in each application before it and consider, among other things, whether the contended reason for the persecution is the essential and significant reason; whether the persecution involves 'serious harm' and whether the persecution involves systematic and discriminatory conduct. Serious harm includes a threat to the person's life or liberty; and significant physical harassment (s 91R). A decision of the Tribunal is a privative clause decision and is thus final and conclusive (s 474(1)) unless the Tribunal has failed by reason of jurisdictional error to make a decision under the Act for the purposes of s 474 of the Act (Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476) which 'must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of jurisdiction conferred by the Act' (Plaintiff S157/2002 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ [76]). The quality, nature and content of the decision will be found in the reasons of the decision‑maker. Section 430 of the Act requires the Tribunal in making a decision on review to prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
16 The appellant sought before the Federal Magistrates Court a declaration that the decision of the Tribunal was made in error of jurisdiction and an order quashing the decision in the exercise of that Court's jurisdiction under s 476(1) of the Act which confers upon the Federal Magistrates Court the same original jurisdiction in relation to migration decisions as the High Court exercises under s 75(v) of the Constitution.
17 What legal principle or legal rubric might be invoked that brings about the legal consequence that the decision of the Tribunal is to be quashed on the ground of demonstrated jurisdictional error expressed in the description 'irrationality or illogicality of reasoning', attracting the constitutional writs. In Craig v South Australia (1995) 184 CLR 163 at 179, Brennan, Deane, Toohey, Gaudron and McHugh JJ stated the general principles guiding the exercise of the supervisory jurisdiction over administrative tribunals in these terms:
At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. That point was made by Lord Diplock In re Racal Communications Ltd:
'Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision‑making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so.'
The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal.
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
18 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82], McHugh, Gummow and Hayne JJ had regard to those observations in Craig and further explained the legal principle of 'jurisdictional error', in these terms:
It is necessary, however, to understand what is meant by 'jurisdictional error' under the general law and the consequences that follow from a decision‑maker making such an error.
'Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision‑maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking the wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision‑maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision‑maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.
[emphasis added]
19 These considerations are in similar terms to those identified by Dixon J in Avon Downs Pty Ltd v FCT (1949) 78 CLR 353 at 360. His Honour also noted that the conclusion reached by an administrative decision‑maker may on a full consideration of the material before him be found to be capable of explanation only on the basis of some 'misconception'; if the result appears to be unreasonable on the supposition that the decision‑maker addressed the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, it may be that a 'proper inference' is open that the supposition is false.
20 In considering those principles, Gleason CJ in S20/2002 observed:
To describe as irrational a conclusion that a decision‑maker is not satisfied of a matter of fact, or a state of affairs, because the decision‑maker does not believe the person seeking to create the state of satisfaction, or to describe the process of reasoning leading to such a conclusion as illogical, on judicial review of an administrative decision, might mean no more than that, on the material before the decision‑maker, the court would have reached the required state of satisfaction. Ordinarily, however, it will be necessary to go further, as in the respects mentioned by Dixon J [Avon Downs].
If, in the particular context, it is material to consider whether there has been an error of law, then it will not suffice to establish some faulty inference of fact. On the other hand, where there is a duty to act judicially, a power must be exercised 'according to law, and not humour' and irrationality of the kind described by Deane J in Australian Broadcasting Tribunal v Bond may involve non‑compliance with the duty.
Furthermore, where 'the true and only reasonable conclusion contradicts [a] determination' then the determination may be shown to involve legal error. It is often unhelpful to discuss, in the abstract, the legal consequences of irrationality, or illogicality or unreasonableness of some degree.
21 At [34] - [37] of S20/2002, McHugh and Gummow JJ noted that the appellant in that case submitted that jurisdictional error arose in circumstances where the Tribunal's determination 'that the condition upon which depended the power (or duty) to grant him a protection visa was not met, was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds'. Their Honours considered whether that contention was made out. That contention of a criterion of jurisdictional error was said to derive from Eshetu (supra). Their Honours observed that in Eshetu it was pointed out that a stricter view should be taken of what must be shown to make out jurisdictional error where the statutory provision 'conditions the attraction of jurisdiction upon the attainment by the decision‑maker of satisfaction that a certain state of affairs exists and that state of affairs includes factual matters' ([146] Eshetu). Their Honours noted the distinction between insufficiency of evidence to support a conclusion of fact by the decision‑maker and an absence of any foundation in fact for the fulfilment of the conditions upon which the power to decide, depends. Their Honours noted these remarks of Dixon CJ, Williams, Webb and Fullagar. JJ in R v Australian Stevedoring Industry Board Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 120:
The inadequacy of the material is not in itself a ground for prohibition.
But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.
[emphasis added]
22 Their Honours, McHugh and Gummow JJ at [37] S20/2002 said:
Without further consideration of what was said in Melbourne Stevedoring, the formulation of the criterion which is relied upon by the appellant may be accepted for present purposes.
23 Although the formulation of the criterion was accepted for the purposes of analysis of the argument, their Honours concluded that the determination by the Tribunal was not irrational or illogical as it was open to the Tribunal to conclude that the appellant had lied without, at an earlier stage of the Tribunal's analysis, having weighed the alleged corroborative 'evidence' given by a particular witness notwithstanding that to do so would have been preferred. At [52], their Honours concluded that 'the decision of the Tribunal has not been shown to have been, in the sense propounded by the appellant, illogical, irrational, or lacking a basis in findings or inferences of fact supported on logical grounds'.
24 This notion of degrees of strictness of that which must be shown to make out jurisdictional error is consistent with the observations of Gleason CJ in Plaintiff S157/2002 at 485 [13] where his Honour noted references in the authorities to the concept of 'manifest' defect in jurisdiction and 'degrees of error' expressed in terms such as 'palpably misused [an] advantage', 'glaringly improbable', 'inconsistent with facts incontrovertibly established' and 'plainly unjust' echoing the familiar remarks in House v The King (1936) 55 CLR 499. His Honour said this:
Unless adjectives such as 'palpable', 'incontrovertible', 'plain', or 'manifest' are used only for rhetorical effect, then in the context of review of decision‑making, whether judicial or administrative, they convey an idea that there are degrees of strictness of scrutiny to which decisions may be subjected. Such an idea is influential in ordinary appellate judicial review, and it is hardly surprising to see it engaged in the related area of judicial review of administrative action.
25 The emphasis reflected in those adjectives is consistent with the 'strict' (Australian Administrative Law, Groves and Lee, Cambridge University Press, 2007, pp 219, 220) view of the 'no evidence' ground of challenge to a factual finding on the basis of illogical or irrational reasoning (note the authorities on the common law reviewed by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356‑357), that is, the need to demonstrate no material before the decision‑maker which tends logically to show the existence or non‑existence of facts or to show the likelihood or not of some future event occurring, relevant to the state of satisfaction to be formed. If there is some evidence (perhaps slight) to support a finding, a Court exercising judicial review ought not to interfere with the decision‑maker's assessment of the material as the limits upon the jurisdiction of the court exercising federal jurisdiction are well known (Attorney‑General (NSW) v Quin (1990) 170 CLR 1 at 35‑36 per Brennan J). Some facts, such as a jurisdictional fact, however, are not facts in the ordinary meaning of that term (Eshetu, 651, [130] per Gummow J) and where a decision‑maker is required to be satisfied of the existence of specified matters, the decision‑maker must act in good faith, must not misdirect itself, fail to consider relevant matters or take into account irrelevant matters. However:
… Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.
(Buck v Bavone (1976) 135 CLR 110 at 118‑119)
26 In Eshetu at [137], Gummow J observed that those observations from Brennan J were consistent with the notion that:
'… where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision‑maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criteria has been met, was all one way'.
27 His Honour further observed in Eshetu at [145]:
'Where the issue whether a statutory power was enlivened turns upon the further question of whether the requisite satisfaction of the decision‑maker was arrived at reasonably … I would prefer the scrutiny of the written statement provided under s 430 [of the Migration Act] by a criterion of 'reasonableness review' … It would permit review in cases where the satisfaction of the decision‑maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds (Bond at 366; Canada (Director of Investigation and Research) v Southam Inc. [1997] 1 SCR 748 at 776‑777)'.
[emphasis added]
28 Their Honours Gummow and Hayne JJ summed up these considerations in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 20 [37] and [38] in these terms:
[37] … The satisfaction of the minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a 'jurisdictional fact' or criterion upon which the exercise of that authority is conditioned. The delegate was in the same position as would have been the minister (S496) and the tribunal exercised all the powers and discretions conferred on the decision‑maker: S415.
[38] The satisfaction of the criterion that the applicant is a non‑citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. To say that a decision‑maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under S65 of the Act. However, inadequacy of the material before the decision‑maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error.
29 It therefore seems to me that in exercising judicial review, an examination might properly occur to determine whether the decision‑maker in reaching a state of satisfaction in discharge of the review function and in making his or her determination, displayed, in the s 430 reasons, defects of illogical or irrational reasoning upon which the determination rests and whether the determination is based on findings or inferences not supported by rational grounds, subject to this. 'Inadequacy' in the material is, by itself, not enough (SGLB). Inadequacy may, however, be a circumstance which supports an inference that the Tribunal misconceived the test or was not satisfied in respect of the correct test (S20/2002).
30 In SFGB v Minister for Immigration and Multicultural and Indigenous Affairs 77 ALD 402, Mansfield, Selway and Bennett JJ quashed a determination of the Tribunal based upon a finding 'unsupported by any evidence'. In Minister for Immigration and Multicultural Affairs v Al‑Miahi (2001) 65 ALD 141, the Full Court, in reliance upon Bond said there is no place for judicial review in simply demonstrating 'faulty logic' as 'want of logic is not synonymous with error of law. So long as the particular inference is reasonably open even if that inference appears to have been drawn as a result of illogical reasoning', there is no error of law. That view was adopted by French, Hill and Marshall JJ in Minister for Immigration and Multicultural Affairs v W306/01A [2003] FCAFC 208. In W404/01A of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 255, French, Lee and Carr JJ concluded that even if the reasoning of the Tribunal '… were illogical, the authorities show that this is not, in itself, a ground of review, though it may on occasion manifest other reviewable error' [35]. In NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 [25], Heerey, Sundberg and Crennan JJ rejected the suggestion that the Tribunal's lack of satisfaction rested upon illogical reasoning and observed, in reliance upon NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 [30], '… in any event, want of logic does not itself suffice to constitute an error of law:' [25]. In VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286, Kiefel, Marshall and Downes JJ, also in reliance upon NACB, agreed that, 'the current state of the law is that want of logic in the reasons of the RRT is not an available ground of review'. That statement of principle did not incorporate the qualification 'in itself'.
31 The central matter is this.
32 A determination of the Tribunal as to a state of satisfaction or otherwise, of the relevant criteria or criterion in question, that is based upon a finding of fact or inferences drawn from facts, not based on logical or rational grounds, will give rise to an error of jurisdiction if there is no evidence to support the finding or no proper basis for drawing the inference; or, if there be some evidence, although inadequate, reliance by the Tribunal upon that inadequate evidence gives rise to an inference that the Tribunal has misconceived the test or is not, in reality, satisfied of the requisite matters, as a result of which there has been only a purported, rather than a real, exercise of the power conferred upon the Tribunal.