MERITS REVIEW?
10 As expanded in the written submissions filed on behalf of the Appellants, the first Ground of Appeal contends that the Federal Magistrate engaged in merits review when it was observed that the Tribunal had "generously" not rejected the husband's claims and thereafter impermissibly endorsed the findings of the Tribunal. Those submissions contended that the "result was that the substance of the Amended Application was dealt with on the basis that [the husband] was not in any real position to complain about the RRT's treatment of events post 2008 given the RRT's 'generous' treatment of his claims prior to then".
11 Unlike many cases which come before what is now the Federal Circuit Court of Australia and this Court where applicants seek to press the outer limits of judicial review in an attempt to review the factual merits of a decision under review, the present case is one in which the now Appellants seek to strictly confine the Court to its allocated task. Presumably, the fear is that the Federal Magistrate had impermissibly allowed his own assessment of the facts to colour the manner in which he resolved the grounds of review alleging legal error. The fear, presumably, is that the expression by the Federal Magistrate of the "generosity" of the findings made by the Tribunal exposed the Magistrate's own adverse assessment of the factual merits of the claims being made.
12 The Federal Magistrate's comments as to the "generosity" of the approach taken by the Tribunal occurred as follows when consideration was being given to a ground of review then being advanced that the Tribunal's decision was unreasonable:
Grounds 1 and 3 - Was the Tribunal decision unreasonable, illogical, capricious or arbitrary?
[20] The applicant claimed before the Tribunal to be a high profile and committed Maoist leader, close to the leadership of the party. This was a surprising (and improbable) claim as the applicant was a wealthy businessman in Nepal and, on his own account, his wife was ignorant of his own activities for the first four years of his involvement. It would, in my view, have been open to the Tribunal to reject the applicant's entire account as a fabrication but, somewhat generously, the Tribunal was willing to give the applicant the benefit of the doubt, in relation to the period up to the elections in Nepal in April 2008 which brought the Maoist party to power.
[21] The Tribunal was not so generous in relation to the applicant's claims about the aftermath of the elections and his departure from Nepal. The applicant had claimed to have had minimal involvement in those elections and to have essentially dropped out of party activities. It was plainly necessary for the applicant to explain why, as a party leader, he had been invisible in the election which brought the party to power and why he played no role in the government formed after that election. The applicant claimed to have earned the enmity of the party because of differences with the party leadership and to have left Nepal for his safety. As noted above, the applicants gave inconsistent evidence in particular about the second applicant's visit to Nepal in 2010, and about the interest shown in the applicant by the Maoists since he left Nepal. The Tribunal invited the applicants to comment on those inconsistencies (whether or not that invitation was strictly required) pursuant to s.424A of the Migration Act 1958 (Cth) by letter dated 29 May 2012. The applicants responded in the form of a submission from their representative dated 12 June 2012.
13 The jurisdiction being exercised by the Federal Magistrates Court is the same as that entrusted to the High Court pursuant to s 75(v) of the Constitution: Migration Act s 476. Its task, in very summary form, is to review the decision of the Tribunal with a view to determining whether its decision is vitiated by jurisdictional error: MZYOA v Minister for Immigration and Citizenship [2012] FCA 1462 at [24] per Murphy J; Patel v Minister for Immigration and Citizenship [2013] FCA 97 at [2] per Bromberg J; see generally Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
14 It is self-evidently no part of the task entrusted to the Federal Magistrate to review the merits of the decision entrusted to the Tribunal: cf. R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 655 per Windeyer J; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J.
15 Although the distinction between judicial review and merits review can be stated with a degree of clarity, difficult questions in practice sometimes emerge between where merits review ends and where judicial review begins. "The line between merit review and jurisdictional error", it has been said, "may not be a 'bright line', but it is nevertheless an essential one": SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 at [20], 77 ALD 402 at 408 per Mansfield, Selway and Bennett JJ. A court conducting judicial review, it has also been said, "has no jurisdiction simply to cure administrative injustice or error": Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 per Brennan J. His Honour there also went on to observe that if "judicial review were to trespass on the merits of the exercise of administrative power, it would put its own legitimacy at risk": (1990) 170 CLR at 38. "The grounds of judicial review ought not be used as a basis for a complete re-evaluation of the findings of fact, a reconsideration of the merits of the case or a re-litigation of the arguments that have been ventilated, and that failed, before the person designated as the repository of the decision-making power": Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [114], 77 ALJR 1165 at 1184 per Kirby J.
16 Notwithstanding the confined task entrusted to the Federal Magistrate, his Honour's observations as to any "generosity" on the part of the Tribunal as to the manner in which it assessed issues of credibility are really not to the point.
17 When conducting judicial review, observations are sometimes made by Judges as to the factual findings that have been made. Indeed, on many occasions, a resolution of an argument as to jurisdictional error cannot be divorced from those facts. Judicial observations as to credit issues may well attract different considerations. The resolution of an argument as to jurisdictional error against the background of findings of fact which have been made and accepted is in many cases inevitable. Judicial observations - or reservations expressed - as to the manner in which an administrative decision-maker has assessed issues of credit and thereafter proceeded to make findings of fact may, however, have some of the hallmarks of a court going beyond its confined role when conducting judicial review.
18 But the mere making of such observations does not necessarily expose error.
19 Even findings of fact based upon an assessment of credit are not beyond the scope of jurisdictional error: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78] per Robertson J. In some cases, for example, the jurisdictional error relied upon is said to be found in perverse findings of fact founded upon assessments of credit: Re Refugee Review Tribunal & Anor; ex parte Aala (2000) 204 CLR 82, NAVQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 3. A reference in such cases to the findings that have been made would, in such cases, be inevitable.
20 Even where the jurisdictional error sought to be relied upon does not involve judicial scrutiny of an administrative process of fact-finding, nothing precludes a court making observations as to the approach pursued by an administrator.
21 That which matters in such cases is not the making of observations (for example) as to the "generosity" of an administrator's factual findings; what matters is whether those observations evidence a court ostensibly conducting judicial review inadvertently tripping into the morass of merits review.
22 No such conclusion is open in the present proceeding for a number of reasons.
23 First, the "heading" to the reasons for decision of the Federal Magistrate immediately preceding the observations as to "generosity" supports a conclusion that the Federal Magistrate clearly had his focus on the question as to whether the Tribunal's decision was not only "unreasonable" but whether it was "illogical, capricious or arbitrary". Attention was thereby clearly directed to the legality of the decision under review as opposed to the factual merits of that decision. A ground of review asserting "unreasonableness" or "proportionality" has sometimes been said to be an invitation to revisit the merits of an administrative decision: Burmerster and Mezzi, Proportionality: A Fashionable and Dangerous Doctrine, Or an Essential Safeguard Against Abuse of Power, in Pearson (ed), Administrative Law: Setting the Pace or Being Left Behind? (1997) 145 at 156. A review of a decision on the ground on unreasonableness, it has been said, cannot become 'merits review in drag': LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2011] FCA 1146 at [39], 55 AAR 518 at 531 per Gilmour J citing Powerco Ltd v Commerce Commission [2006] NZHC 662 at [24]. But no such temptation is invited - or, at least, not manifestly so - where judicial scrutiny is confined to whether an administrative decision is "illogical, capricious or arbitrary".
24 Second, and more importantly, the reasons for decision of the Federal Magistrate expose thereafter no basis for contending that the Federal Magistrate reviewed the decision of the Tribunal other than by reference to its reasons and findings as to events after the April 2008 elections in Nepal. The Federal Magistrate extracted the reasons and findings as to events post-April 2008 and concluded that there was no error exposed by those reasons and findings. Whatever may have been the observations of the Federal Magistrate as to the "generosity" of the Tribunal's assessment of the credibility of the Appellants in respect to events prior to April 2008, those observations did not taint or influence the judicial consideration given to the reasons and findings as to events occurring after the Nepalese election. In so doing, the Federal Magistrate did not trespass beyond reviewing the decision of the Tribunal by reference to the findings and reasons provided and did not trespass into a reconsideration of the factual merits of the claims made.
25 The first Ground of Appeal is rejected.
26 It is unnecessary to resolve a further submission advanced on behalf of the Respondent Minister that the first Ground should not be resolved in the event that the second and third Grounds of Appeal are rejected. That submission was that it was these last two Grounds of Appeal which directed attention to any error that may have been committed by the Tribunal. In the absence of any error being found in the reasons for decision of the Tribunal, it was said on behalf of the Respondent Minister that any error on the part of the Federal Magistrate would not ultimately lead to any different or more favourable relief to the Appellants.