wHAT IS IRRATIONAL, ILLOGICAL AND NOT BASED ON FINDINGs OR INFERENCES of FACT SUPPORTED BY LOGICAL GROUNDS?
2 There are differences in reasoning apparent in the three separate judgments in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 as to what will suffice to support a finding that a decision of the decision-maker's state of satisfaction that a statutory criterion had or had not been met is irrational, illogical, and not based on findings or inferences of fact supported by logical grounds. That formulation derived from what Gummow J had said in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 656-657 [141]- [145]: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 66-67 [34], see too at 67 [35]-[36] per McHugh and Gummow JJ: see too: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ, cp the view of Deane J at 367.
3 In SZMDS 240 CLR at 632 [77]-[79] Heydon J reasoned that a decision as to satisfaction was not illogical if the issue was one on which minds might differ because, for example, the difference was one of degree, impression and empirical judgment. His Honour inferred that the decision-maker there had selected a major premise as the foundation of her reasoning and operated on that premise, even though she had not stated it (240 CLR at 631 [74]-[75]. Crennan and Bell JJ held that illogicality or irrationality sufficient to give rise to jurisdictional error meant that, where the question was whether a decision-maker had been satisfied of a matter, the decision to which he or she came was one at which no reasonable decision-maker could arrive on the same evidence (240 CLR at 647-648 [130]). Their Honours appear to have decided that where a decision-maker gives reasons and those reasons do not reveal a logical or rational path of thought, but the decision is one to which some logical or rational mind could have come, even if no logic or rationality appears in the reasons given, a jurisdictional error will not be found. At least, that is what I understand their Honours to be saying in the following passage (240 CLR at 648 [131]; see too at 649 [135]):
"The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion." (emphasis added)
4 Their Honours went on to say that the correct approach was to ask whether it was open to the decision-maker "to engage in the process of reasoning in which it did engage and make the findings it did make on the material before it" (240 CLR at 648 [133]).
5 In dissent Gummow ACJ and Kiefel J characterised the issue as being whether the decision-maker made a jurisdictional error having regard to the reasons he or she gave in response to a statutory requirement to give reasons (240 CLR at 624 [36]) However, they were anxious to maintain the distinction between judicial and merits review of administrative decision-making by emphasising (following Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) that reasons are meant to inform and are not to be scrutinised in an over-zealous fashion (240 CLR at 623-624 [35]). They went on to say (240 CLR at 624 [39]):
"The second distinction concerns attacks upon the exercises of discretionary power which are said to be unreasonable in the sense attributed to Associated Provincial Picture Houses Ltd v Wednesbury Corporation ([1948] 1 KB 223). The concern here is with abuse of power in the exercise of discretion, again on the assumption that the occasion for the exercise of discretion had arisen upon the existence of any necessary jurisdictional facts (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1169-1170 [20], 1177-1178 [67]-[69], 1194 [174]; 198 ALR 59 at 64, 75-76, 98-99). Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review (see, in particular, the remarks of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 37-38) will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view."
6 In the end, as the divergence in views in SZMDS 240 CLR 611 shows, Gleeson CJ was correct to say in Applicant S20 198 ALR at 64 [20]:
"As with illogicality and irrationality, unreasonableness is a protean concept, and may require closer definition where it is said to be relevant to judicial review of an administrative decision."
He also observed it is often unhelpful to discuss, in the abstract, the legal consequences of irrationality or illogicality or unreasonableness of some degree. In such a context it is necessary to identify and characterise the suggested error and then relate it to the legal rubric under which the decision is challenged: 198 ALR at 62 [9]; see too MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441 at 450-451 [42]-[45] per Keane CJ, Perram and Yates JJ and Cane P and Donald L, Principles of Administrative Law (Oxford, 2008) pp 155-156 . Emphatic judicial disagreement with a decision-maker's reasoning is not a sufficient basis to make out this ground: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 176-177 [34] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
7 Australian administrative law principles have developed differently to the approach in the United Kingdom recently distilled by Lord Mance JSC in AXA General Insurance Ltd v HM Advocate [2011] 3 WLR 871 at 911 [97], namely:
"In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410 Lord Diplock said of irrationality in the Wednesbury sense, that it "applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it". There can be decisions - to take a familiar extreme example, a blatantly discriminatory decision directed at red-headed people - where, irrespective of any limitation on the purposes for which the decision-maker might act, a court would regard what has been done as irrational, because of the way in which the decision operated."
8 Another approach to this issue has been taken by the Supreme Court of Canada as can be seen in its recent decision in Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board) [2011] 3 SCR 708. However, in Canada as Abella J explained in giving the reasons of the Court, the standard for judicial review of administrative decisions is reasonableness ([2011] 3 SCR 708 at [8]). At [14], her Honour explained that it was not the law in that jurisdiction that:
"the "adequacy" of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses - one for the reasons and a separate one for the result (Donald J. M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at ss12:5330 and 12:5510). It is a more organic exercise - the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir [v New Brunswick [2008] 1 SCR 190] when it told reviewing courts to look at "the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes" (para. 47)."
9 However, the Constitutional safeguard supplied by s 75(v) makes every officer of the Commonwealth amenable to judicial review. This recognises the importance of subjecting administrative decision-makers to the rule of law: cf Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 513 [103]. Despite this, the protean concepts of illogicality, irrationality and unreasonableness, as this Court is bound to apply them, have produced a result that appears to authorise decision-makers to act on and accept information in anonymous letters as the truth. No-one in the community would like to think that decision-makers exercising power given to them by an elected Parliament can decide a matter as serious as whether a person should be given a protection visa by accepting the contents of an anonymous letter as fact. But, that is what the authorities that bind us appear to require this Court to find in a case like the present where the Tribunal did just this.
10 An analogue of s 430(1) of the Migration Act is s 25D of the Acts Interpretation Act 1901 (Cth). In Dalton v Deputy Commissioner of Taxation (1986) 160 CLR 246 at 250 Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ said that the purpose of the requirement to give reasons "appears to be to enable a person affected by a decision for which reasons must be given to be supplied with findings and a reference to the evidence or other material on which they are based so that he may shape the course of his future conduct accordingly". And, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69] McHugh, Gummow and Hayne JJ said that the obligation in s 430 "ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion".
11 It is one thing for reasons to be expressed inelegantly or, even, clumsily, provided that what is recorded portrays a reasoning process. But the dividing line between what is not rational or logical reasoning and a mere error of fact is far from clear. That can be because, as experience teaches, fact finding often has few bright lines for a decision-maker. Evidence is usually weighed as a whole so that an error in finding one fact can impact on the integrity of the whole decision. So much is recognised by the criminal appeal process from decisions by a jury that a person is guilty of an offence. If inadmissible evidence is put before a jury and they convict, generally the verdict will be set aside because the impact of the inadmissible material cannot be gauged. Where administrative decision-makers, such as the Tribunal, must give reasons, a Court can see how the decision was reached. So after making appropriate allowances for the decision-maker's use of less than perfectly phrased language to convey his or her thought processes, a Court should be able to see whether those thought processes were, in substance, irrational or illogical vehicles to arrive at the decision.
12 Irrationality and illogicality as grounds for judicial review are distinct from an assertion that the decision-maker merely made a wrong finding of fact. Ordinarily, a decision-maker will not make an error of law or a jurisdictional error simply by making a wrong finding of fact: City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 153-154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ. After all, the jurisdiction so exercised, is to make findings of fact not to make findings of fact that are necessarily correct. However, if the fact wrongly found is a jurisdictional fact, the decision will be amenable to judicial review. That is because the decision-maker cannot create or negate the existence of his, her or its jurisdiction by an erroneous finding or supposition that the jurisdiction exists or does not exist: Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 570-571 [64], 572-573 [67]-[68] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; cf too Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 200 per Dixon J, 258 per Fullagar J; Plaintiff S157/202 211 CLR at 512-513 [102].
13 It is at this point that a difficulty arises. Under s 65(1) of the Act, the Minister or decision-maker must grant a visa "if satisfied" of particular matters and must refuse to grant it if he or she is not so satisfied. The Minister's or decision-maker's state of satisfaction is a jurisdictional fact. Perhaps the key to its reviewability may be to return to the approach of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119 where he said the following, which was approved as accurate by Brennan CJ, Toohey, Gummow and McHugh JJ in Wu Shan Liang 185 CLR at 275-276:
"It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. 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. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts." (emphasis added)
14 In that passage Gibbs J distinguished between the decision-maker acting merely arbitrarily or capriciously and arriving at a decision that was so unreasonable that no reasonable decision-maker could properly have so decided. No recent consideration has been given to what might be within the concept of merely arbitrary and capricious conduct.
15 The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker's articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error.
16 Unfettered by the authorities to which I have referred, I would have concluded that the Tribunal's use of the anonymous letter as evidence of the fact that the appellant had fabricated his claims was irrational, illogical and unreasonable. The author of the letter was unknown and had given no reason why he or she (1) knew the appellant, (2) knew the information conveyed in the letter, and (3) had not revealed his or her identity. For all the Tribunal knew, the letter could have been written by a former resident in the appellant's home, or even a malicious person within the staff of the Tribunal or the Department, who had access to material on the appellant's file. Critically, there was no material before the Tribunal to indicate that whoever was its author had any personal knowledge of the assertions in the letter about the veracity of the appellant's claims. It is no answer that the Tribunal acknowledged that it had to treat the anonymous allegations with "extreme caution … as the information in them is untested and the author's motivations completely unknown to the Tribunal and possibly the applicant" ), for it reasoned:
"The fact that a fairly detailed allegation is received to this very effect is also supportive of the ultimate conclusion. That the allegation was made by a person who wishes the applicant ill is undoubted, but the fact that the allegation is able to detail the nature of the fabrication which is supported by an analysis of the evidence provided by the applicant points to that allegation being true." (emphasis added)
17 The fact that an anonymous letter writer may have access to certain information that is accurate does not logically, rationally or reasonably allow the inference to be drawn that other assertions made by the mysterious source are true. Before such a conclusion can be drawn the basis on which the source makes the relevant assertion must be known. In the example above, a person with access to a file, whether in the appellant's home or elsewhere, can compose a very convincing letter. But if a decision-maker knew the author was a complete stranger or a person who had misused his or her access to the file but lacked any personal knowledge of the facts he or she was asserting, the decision-maker would treat the letter as scurrilous and ignore it.
18 The situation here is of a letter about whose author nothing is known. But for the authorities to which I have referred, I would have found that the letter was not capable of being treated as containing credible, relevant or significant information that a decision-maker logically, rationally or reasonably could have any regard to at all: cf the very different situations in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 225 CLR 88 at 98-100 [22]-[29] and Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448 at 457-458 [29]-[33] where the identity of the author of the letter was known to the Tribunal, but he or she gave reasons to keep his or her name confidential from the applicant for review.
19 It is difficult to see how it is in the public interest that unknown persons who give no basis for their being in a position to make prejudicial assertions about another person are entitled to any credence in decision-making under the Act: cf VEAL 225 CLR at 98-99 [24]-[25]. Unconstrained by authority, I would have found that to do so is as irrational, illogical and unreasonable as having regard to a person saying that the red headed applicant for a visa should have his claim rejected because he has red hair and is a liar. However, the law appears to be otherwise.