SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 On 22 April 2005, I ordered that this appeal be dismissed with costs. I now give my reasons. 2 This is a Notice of Motion by the respondent to dismiss the appeal because no reasonable basis for the appeal is disclosed by the Amended Notice of Appeal filed on 21 March 2005. In the alternative, an order is sought that the appeal be dismissed as incompetent. 3 The Amended Notice of Appeal is from the judgment of his Honour Federal Magistrate Smith delivered on 24 January 2005. There are twelve grounds in the Amended Notice of Appeal which are said to be individual and/or cumulative. It is not necessary to fully outline all the grounds raised, but they allege that the decision of the Refugee Review Tribunal ("the Tribunal") is not a decision made under the Migration Act 1958 (Cth) ("the Act"), that it is affected by jurisdictional error, that the decision of the Tribunal is invalid because of a constructive failure to exercise jurisdiction, that the Tribunal made a mistake in determining the limits of its jurisdiction and that the Tribunal misconceived the duty it was under when reasoning to its satisfaction as to whether a protection visa should be granted. It is also said that the Tribunal breached the judicial duty to make or apply a finding of law using formal logic and therefore breached the rule of law on the ground of arbitrariness, that the Tribunal failed to act judicially and exercised judicial power in a manner reserved for the exercise of executive power, that the Tribunal did not maintain the separation between its judicial and executive exercises of power, that the Tribunal did not uphold the rule of law and that the Tribunal acted unconstitutionally. 4 There are some "particulars" furnished in the Amended Notice of Appeal which basically turn on the argument that there was a fallacy of formal and "sentential" logic. The rest of the particulars amount to a series of propositions by way of submissions. 5 The decision of the learned Federal Magistrate turned on his Honour's conclusion that the Amended Application did not raise any matter which had not already been decided adversely to the appellant by Hill J at first instance (NADC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 201) and on appeal by the Full Court (NADC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 176). His Honour below had regard to the written submissions as well as the Amended Application for Review and he concluded that all of the appellant's present arguments before him could, and should, reasonably have been raised in the proceedings before Hill J. His Honour noted that the appellant had made no attempt to persuade him that any of his grounds for review had not previously been raised in the Federal Court and nor was there any satisfactory explanation as to why he had not previously put forward all these grounds. His Honour noted that there was no reason why the appellant should be allowed to raise any fresh grounds. 6 His Honour considered that there was no substance in the submissions made by the appellant and noted that the Tribunal had made an important positive factual finding that the appellant could have obtained protection from the courts in Bangladesh if the charges which had been brought against him were false and politically motivated. His Honour considered that there was no error of law of procedure arising out of the way in which the Tribunal considered the letter from a Bangladeshi MP which the applicant said supported his claim that he had been wrongly charged with murder. He also considered that, as a matter of discretion, there was no special reason why the submissions could be raised afresh before him. He referred to the estoppel principles which had been recently considered by the Full Court in Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [36]-[39] and noted that, in that case, their Honours considered that the principles of issue estoppel and "Anshun"estoppel were appropriately applied in judicial review applications similar to the one before his Honour. His Honour then applied those principles and dismissed the application. 7 The Minister contends that the decision of the learned Federal Magistrate dismissing the appeal on the basis of estoppel was interlocutory and therefore leave is required to appeal. The appellant contends that this decision was a final one and that leave is not necessary. 8 I do not accept the Minister's contention as to the nature of the decision made by the learned Federal Magistrate. This question was recently considered by Kenny J in MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 466 at [3]-[7], where her Honour concluded that the judgment under appeal, which was based on a finding of estoppel and res judicata by the learned Magistrate, was a final judgment for the purposes of appeal. Her Honour referred to the High Court decision in Port of Melbourne Authority v Anshun Proprietary Limited (No 1) (1980) 147 CLR 35. At [38] in that case, Gibbs J, with whom Mason and Murphy JJ agreed, said, in relation to an objection to the competency of an appeal on the ground of estoppel: "If the view expressed in Licul v Corney (1976) 50 A.L.J.R. at 444 is correct, and the true test of finality is whether the judgment or order, as made, finally disposes of the rights of the parties, it would seem clear that the order made in the present case was a final judgment. … It seems to me that in the present case, as a matter of reality, the order made does finally dispose of the rights of the parties, and on that ground I would consider it to be a final order so that the objection to competency in my opinion ought to be overruled." (Emphasis added) 9 The determinative question is whether the appeal finally disposes of the rights of the parties. An absolute stay order does finally dispose of the rights of the parties. In this case, it is the order made by Hill J which is critical. 10 I note that the above statement of Gibbs J was applied by Dowsett J in the Full Court decision of The Lardil Peoples v State of Queensland (2001) 108 FCR 453 at [8]-[86]. 11 In my opinion, in this case, leave to appeal is not required, as the decision of the learned Magistrate was final. 12 When the Motion came on for hearing before me, the representative of the appellant sought leave to file a Further Amended Notice of Appeal which raises the argument that the Tribunal's reasoning was illogical and that this amounted to jurisdictional error. It seeks to raise issues based on syllogistic logic. 13 This submission was not suggested before the Magistrate. It is therefore necessary for the appellant to satisfy me that leave ought be granted to amend the Notice of Appeal in order to raise this ground at this late point. 14 The law is settled at the appellate level in this Court that the want of logic does not, of itself, suffice to constitute an error of law: see NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [30] per the Court (NACB); VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [18]-[19] per the Court (VWST); NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 at [25] per the Court (NATC); and W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 at [35] per Lee and Carr JJ. In accordance with the settled authority, I would not depart from these decisions unless I formed the view that they were clearly wrong in principle on this point. 15 The representative for the appellant referred to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38], where Gummow and Hayne JJ said: "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." (Emphasis added) 16 Their Honours based these remarks on a similar observation in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [37] and [52] per McHugh and Gummow JJ and at [173] per Callinan J (S20/2002). Those remarks were considered by the Full Court in NACB, VWST and NATC but they did not deter their Honours from concluding that illogical reasoning without anything more is not sufficient to constitute jurisdictional error. It is to be noted that in S20/2002, their Honours concluded that the determination by the Tribunal was not irrational or illogical as contended for, so the question did not arise for determination. Chief Justice Gleeson noted that it is often unhelpful to discuss, in the abstract, the relevant consequences of irrationality, or illogicality or unreasonableness. At [9], the Chief Justice said, after referring to illogicality: "… If in a 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." His Honour then applied the observations of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356. 17 Having regard to the Full Federal Court decisions that I have referred to above, I do not consider that illogicality on its own, of the type which is here alleged, amounts to jurisdictional error. I note that in the above obiter in SGLB, their Honours did not suggest that illogicality is sufficient but rather that there must also be a determination based on findings of fact not supported by logical grounds. 18 In any event, and independently of the above authorities, I am not persuaded that any illogicality has been pointed to in the reasoning of the learned Magistrate which could be said to amount to jurisdictional error. This is not a case where the reasoning of the Tribunal is capable of being confined within tightly framed syllogistic propositions, based, as it is, on generalised reasoning from country information. Importantly, the Tribunal made an affirmative finding of fact that some widespread attention had been given to this case which would help to ensure that it would receive appropriate objective consideration by the courts in Bangladesh and if, in fact, the charges against the appellant were false and politically motivated, then the appellant could obtain protection from the courts in Bangladesh. The Tribunal did not accept that the charges and sentence referred to by the appellant were made out but said: "In short, the Tribunal is satisfied that even if the charges and sentences are true, there is not a real chance that in the course of such a judicial process he will be subjected to serious harm amounting to persecution for a Convention reason. Having made this finding, it follows that the Tribunal is satisfied that whatever subjective fear the Applicant may have in this regard, he does not have a well-founded fear of persecution for a Convention reason." (Emphasis added) 19 The Tribunal's finding in relation to the ability of the appellant to obtain an appropriate objective consideration by the courts in Bangladesh is a pure question of fact and degree and does not give rise to any reviewable error or misapplication of legal principle. 20 Having had regard to the independent country information, particularly at pages 11 and 17-20 of the Tribunal decision, I am not persuaded that there is any illogicality or irrationality in the reasoning of the Tribunal. Nothing has been put to me on behalf of the appellant to persuade me that there was any error in the decision of the learned Magistrate as to the way in which the doctrine of estoppel was applied. 21 In my view, there is no reasonably arguable basis for the appeal. I therefore grant the application to dismiss the appeal with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.