THE ABSENCE OF MERIT
11 The explanation for the apparent delay in seeking to appeal the November 2012 decision of the Federal Magistrate is accepted by the First Respondent. It is also accepted that the period of time between the Applicant becoming aware of the decision of the Federal Magistrate and the making of the Application to this Court is comparatively short.
12 The Respondent Minister opposes an extension of time being granted primarily by reason of the absence of any merit in the proposed Grounds of Appeal.
13 The ambit of the argument intended to be embraced by the first Ground of Appeal was clarified during the course of the hearing. At one stage it was understood that the "jurisdictional error" was said to be that the delegate of the Minister who made the Refugee Status Assessment was one and the same person as the Independent Merits Reviewer. That was factually not correct. The delegate was Ms Potter; the Independent Merits Reviewer was Dr Crosdale.
14 The "jurisdictional error" was ultimately understood to be that the Independent Merits Reviewer:
(a) was not satisfied that the Applicant had "suffered any Convention related harm, nor … that there [was] a real chance of such harm occurring … in the reasonably foreseeable future" and was, accordingly, not a refugee;
and went on to conclude that:
(b) the Applicant did not meet the criteria for a protection visa.
The Applicant submitted that the Independent Merits Reviewer could not both reach the state of satisfaction expressed and also go on to conclude that the Applicant did not meet the requisite criterion. That argument is rejected. The Independent Merits Reviewer discharged the functions entrusted to her. Moreover, having once reached the conclusion that she was not satisfied that the Applicant was a refugee it inevitably followed that the Applicant did not meet the criterion for a protection visa.
15 The first Ground of Appeal is thus without merit.
16 The second Ground of Appeal seeks to contend that the reasons provided "were neither logical nor rational". When seeking to address that which was "irrational" or "illogical", Rares J in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58, 202 FCR 1 referred to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 and helpfully summarised some of the authorities as follows:
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 [141]-[145]: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; 198 ALR 59 at [34], see too at [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 at [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 (at [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 (at [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 (at [131]; see too at [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."
[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" (at [133]).
When referring to this passage, Dodds-Streeton J has stated that the "threshold for establishing illogicality is … on any view … very high": MZYOI v Minister for Immigration and Citizenship [2012] FCA 868 at [165], 130 ALD 256 at 283.
17 The ambit or content of the argument intended to be embraced by the second Ground of Appeal in the present proceeding was also clarified during the course of the hearing. The argument sought to be advanced is that the recommendation of the Independent Merits Reviewer lacked rationality and logic by reason of the Reviewer basing her recommendation upon the materials and information before her and not by reference to (either in whole or in part) materials and information which post-dated both her own recommendation and the decision of the Federal Magistrate. The argument has only to be stated for its lack of merit to be self-evident. Moreover, the further and more recent information is in essence an impermissible challenge to the merits of the recommendation.
18 A decision-maker, it may be accepted, is generally required to base a decision upon the materials available and this may require a decision to be based upon the "most current material available": Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 45. Mason J there observed:
….. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.
An administrative decision-maker may thus be required to take into account "any facts which have arisen since [any earlier consideration] … and, secondly, any matters put before it which serve to 'correct, update or elucidate' anything which it may have said in" an earlier report: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 77 ALR 601 at 606 per Wilcox J. The rationality of any administrative decision, in such circumstances, is thus to be gauged by reference to the materials in fact available to a decision-maker and the submissions advanced and by reference to any further materials which may have emerged since any earlier consideration that may have been given to a matter by a decision-maker.
19 But the rationality of any administrative decision cannot generally be impugned by reference to materials and information not available to a decision-maker and - more importantly - not even available until after a decision has been made. The further materials sought to be relied upon by the Applicant, it is further understood, referred to facts and events occurring after the recommendation of the Independent Merits Reviewer and after the decision of the Federal Magistrate. In the absence of further explanation, it is difficult to see how the rationality of a recommendation based upon the materials then available for consideration can be impugned by reference to facts and circumstances that had not even transpired when the recommendation was made.
20 The second Ground of Appeal is also rejected.
21 No further Ground of Appeal has been formulated in writing, as envisaged by the reservation expressed in proposed Ground 3. Again, however, during the course of the hearing, the Applicant outlined an argument that he wished to be taken into account. The argument was that he had been inadequately represented before both the Independent Merits Reviewer and the Federal Magistrates Court. He submitted that he had not been represented "properly". His legal representative, the Applicant submitted, failed to tender to both the Independent Merits Reviewer and the Federal Magistrate further materials he wished to rely upon.
22 In the very different context of a criminal proceeding, it has been recognised that the inexperience of counsel may be a reason for judicial intervention: see Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197. See also: Ali v The Queen [2005] HCA 8, 79 ALJR 662. An appeal, however, will not be allowed where the incompetence of counsel has not been shown to have affected the result: Petrovic v Spanjic [2004] FamCA 1313, 190 FLR 10. See also: Ipp, Judicial Intervention in the Trial Process (1995) 69 ALJ 365 at 370 - 371. In the United States it has been concluded that there is a constitutional right to legal representation which includes the right to effective assistance of competent counsel: cf United States v Cronic, 466 US 648 (1984); Glover v United States, 531 US 198 (2001); Bell v Cone, 535 US 685 (2002); Massaro v United States, 538 US 500 (2003). See also: Massaro v United States, 538 US 500 (2003). See also: Rompilla v Beard, Secretary, Pennsylvania Department of Corrections, 545 US 374 (2005).
23 Where there is a right to legal representation in administrative proceedings as an incident of natural justice or procedural fairness, that right most probably also extends to the right to competent representation. The question of what facts would have to be established before any finding could be made that the legal representation of a person fell so far short of competent representation such that there was a denial of procedural fairness may be left to one side. Nothing that the Applicant has submitted in the present proceeding provides any basis or necessity for further considering the extent of what is embraced by a right to legal representation.
24 The bare assertion in the present proceeding that a legal representative failed to tender unspecified materials does not provide a basis for concluding that the manner in which the interview was conducted before the Independent Merits Reviewer or (more relevantly) the hearing before the Federal Magistrates Court fell short of competent assistance and representation.
25 The Applicant, it should further be noted, has been represented both prior to the interview with the Independent Merits Reviewer and the Federal Magistrates Court. Even if there was a failure to tender materials, as submitted, that failure does not of itself establish any necessary denial of procedural fairness or jurisdictional error on the part of the Independent Merits Reviewer.
26 Any further argument founded upon an asserted absence of competent legal representation is also considered to be an argument without merit.
27 No further Ground of Appeal has been identified which has any prospects of success.
28 During the course of the hearing, it should finally be noted, the Applicant sought to tender further materials. They were "marked for identification". Those materials have been reviewed. They are but an impermissible attempt to re-agitate the merits of the recommendation made by the Independent Merits Reviewer.