SZRQT v Minister for Immigration and Citizenship

THE DECISIONS OF THE TRIBUNAL 8 The Refugee Review Tribunal in its reasons for decision set forth in considerable detail the evidence and claims being advanced for consideration. It had considerable doubts as to the credibility of the Appellants. 9 Relevantly, however, the Tribunal separately addressed the claims being made prior to elections held in Nepal in April 2008 and the events thereafter. Its "Findings and Reasons" state in part as follows: 173. The Tribunal finds that the applicant and his wife are nationals of Nepal … 174. The Tribunal had some doubts about the evidence of the applicant and his wife that while his wife claimed, on the one hand, to suspect or have a feeling that the applicant may have been assisting the Maoists that, on the other hand, they never discussed that. Both the applicant and his wife said that she was not interested in politics yet she was a member of Amnesty International, was participating in their programs and, one could expect, would have wanted to discuss with her husband his involvement with the Maoists if she suspected he was involved. 175. However, the Tribunal is willing to afford the benefit of the doubt in relation to that issue and accepts as credible the account of events put forward up until the elections in April 2008. As regards events after that time, the Tribunal had the following concerns about the credibility of the evidence of the applicants. The Tribunal thereafter proceeded to set forth its "Findings and Reasons" in respect to its "concerns" as to a number of discrete matters relating to events which occurred after April 2008, being: evidence concerning the wife's return to Nepal in February 2010, including an inconsistency in the explanations provided by the husband and wife as to her reasons for returning and the Tribunal's finding that it did not believe an explanation provided by the wife (at paras [176] to [179]); evidence about contact between the wife and Maoists when she returned to Nepal, including its finding that the "evidence of the couple as to the contact the applicant's wife had with Maoists when she returned to Nepal was inconsistent and not credible" (at paras [180] to [188]); evidence about interest shown in the husband by Maoists since he left Nepal, including a discrepancy in the evidence of the husband and wife and its finding that his failure to provide "very important evidence …. again reflects poorly on his credibility" (at paras [189] to [192]); and evidence as to the delay in applying for protection visas, the delay being "almost two years after his arrival, [before] making enquiries as to how he could remain here" and its finding that it did not "believe" the account being provided (at paras [193] to [198]). The Tribunal went on to express its "conclusions on credibility…". In part, those "conclusions" were expressed as follows: 201. The discrepancies in question relate to significant and straightforward aspects of their accounts. Accordingly, they could be expected to give consistent accounts on those matters regardless of being nervous, anxious and under stress (as most protection visa applicants are when they appear before the Tribunal). That is the case also regardless of the applicant's negative feelings about his past association with the Maoists and the harm he claims he and his family suffered as a result. 202. The evidence of the applicant and his wife regarding her reasons for returning to Nepal, her dealings with Maoists when she was there and the interest shown in the applicant by Maoists since he left Nepal is inconsistent. Further, the inaction on the part of the applicant to make enquiries about how he could remain in safety in Australia and avoid returning to Nepal as discussed above was further indication that the applicant is not genuinely in fear of persecution. 203. All of these considered together lead the Tribunal to conclude that the applicant and his wife have been untruthful in their evidence as to the reasons why the applicant left Nepal in August 2008 and why he (and his wife) do not wish to return there. During the hearing, the applicant claimed that in late 2011 Maoists gave their telephone number to his mother and he offered to provide that to the Tribunal to call it. The Tribunal has elected not to call that telephone number as the Tribunal would have no credible basis on which it could be certain as to the identity of the person who has that telephone number. It thereafter set forth the evidence that it accepted as "credible" (at para [206]) but went on to conclude: 207. However, for the reasons given above, the Tribunal does not believe the applicant became of adverse interest to Maoists because of his views about them or that they planned to harm him. The Tribunal finds that there is no credible evidence as to why the applicant left Nepal and why he does not wish to return there. There is no credible evidence that the Maoists have any interest in him or wish to harm him. On that basis, the applicant's fear of persecution from Maoists is not well founded. It thereafter proceeded to consider further aspects of the evidence and claims being made.

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.

INCONSISTENT EVIDENCE AND WANT OF LOGIC? 27 The second Ground of Appeal contends that the Tribunal committed jurisdictional error because it "assumed that the [husband] was lying because his wife gave evidence inconsistent with his…". In the third Ground of Appeal, it is then said that the Tribunal had committed appellable error by "misconstruing the distinction between want of logic and unreasonableness on the one hand and the outcome which might have occurred if a logical and reasonable process of reasoning had been adopted". 28 The second Ground focuses attention upon paragraphs [201] to [203] of the reasons for decision of the Tribunal. This Ground implicitly asserts jurisdictional error on the part of the Tribunal in the manner in which it reached its conclusions there set forth. 29 The challenge to these paragraphs in the written submissions filed on behalf of the Appellants is two-fold, namely: the premise, it is submitted on behalf of the Appellants, is that the husband and wife were expected to "give 'consistent' evidence" but that such a failure "does not without more lead to a consequence that both are untruthful…"; and the reason why the wife returned to Nepal is said not to be "a 'fact' which any rational decision maker would take into account" because it is a "personal reason for a course of conduct…". 30 Although it may be accepted that the Tribunal expressed a view that the husband and wife "could be expected to give consistent accounts" on certain matters, it is not considered that the Tribunal thereafter went on to conclude that any such lack of consistency was the only reason why the delegate's decision should be affirmed. Its ultimate finding (at para [207]) is a finding based upon "the reasons given above", those reasons including each of the matters separately addressed in respect to events post-April 2008. 31 To construe the reasons for decision of the Tribunal (particularly those at paras [201] to [203]) as separate and divorced from its reasons set forth in respect to events post-April 2008 (at paras [176] to [198]) would construe the reasons in a manner designed to discern error where none truly exists. Such an approach would be contrary to the cautions expressed by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 271-272. 32 During the course of oral submissions, Counsel on behalf of the Appellants either revised the written submissions made or refined those written submissions by contending that it was not "open" to the Tribunal to conclude that the evidence of the Appellants was to be rejected as "untruthful" by reason merely of an inconsistency in the evidence of the husband and wife "without more". For the purposes of resolving this further submission, it is unnecessary to consider whether the Tribunal "retreated" from its findings that the Appellants had been "untruthful in their evidence" (at para [203]) to a more restrained finding that it did not "believe" the husband (at para [207]). 33 Nor is it necessary to resolve whether the broadly expressed submission advanced on behalf of the Appellants was well-founded. Jurisdictional error, it is accepted, will not be exposed where, on probative evidence giving rise to different processes of reasoning, one conclusion has been preferred to another possible conclusion: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [131], 266 ALR 367 at 396. The Federal Court had there set aside a decision of the Tribunal on the basis of illogical or irrational findings or inferences of fact. By a majority an appeal was allowed. In concluding that the appeal should be allowed, Heydon J concluded: [86] The difference between the Federal Court and the tribunal may be put thus. The Federal Court thought that the first respondent's explanation for not seeking asylum in the United Kingdom was "perfectly plausible". There are pejorative meanings of the word "plausible", but they are not the meanings which the Federal Court was conveying. The Federal Court was saying that the explanation was "capable of being believed" or "apparently believable". The tribunal, however, did not believe it. Something can be capable of being believed without actually being believed. For the tribunal member to withhold belief from something which is "perfectly plausible" but which she did not find to have been satisfactorily explained and which she found not to be probable is not illogical. In also forming part of the majority, Crennan and Bell JJ made observations as to whether "irrationality" was "a separate freestanding common law standard for good administrative decision-making" and continued: [129] .... accepting that an allegation of "illogicality" or "irrationality" must mean something other than emphatic disagreement … and also accepting that a demonstration of bona fides will not save an illogical or irrational decision or finding on a jurisdictional fact … how do "illogicality" and "irrationality" fit with the clearly related body of law concerned with error, particularly jurisdictional error, in respect of reasoning which is "clearly unjust", "arbitrary", "capricious" or "Wednesbury unreasonable"? [130] In the context of the tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case. [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. 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 Gummow ACJ and Kiefel J dissented. See also: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [134] per Roberson J. 34 As was submitted on behalf of the Respondent Minister, the resolution of the Appellants' submission was to be resolved by the application of accepted principles to what the Tribunal in fact did. 35 The Respondent Minister submitted that the submission advanced during oral submission by the Appellants was to be rejected because the conclusion of the Tribunal rejecting the evidence of the Appellants was neither a finding: based upon any irrational or illogical process or reasoning; nor a finding: based simply upon an inconsistency between the husband and wife "without more". Even the latter more confined submission of the Appellants cannot prevail. 36 The conclusions of the Tribunal, it is concluded, were founded upon not merely "inconsistencies" but also upon: the fact that those inconsistencies were not in respect to tangential matters but inconsistencies in respect to those matters where "they could be expected to give consistent accounts" (at para [201]); the finding that there was "no credible evidence" that the Maoists had any interest in the husband or wished to harm him (at para [207]); and the finding of the Tribunal that it did not believe that the husband "would have been content to remain in Australia holding a temporary visa and make no enquiries until mid-2010 as to how he could remain here permanently" if he genuinely feared returning to Nepal (at para [198]). The findings, in other words, were founded upon not merely "inconsistencies" but a more general assessment as to credibility. 37 Nor is any jurisdictional error exposed in the Tribunal's consideration of the reasons for the wife's return to Nepal. Contrary to the written submissions advanced on behalf of the Appellants, that which was of importance to the reasons of the Tribunal was the inconsistency in the explanation for the wife's return to Nepal; the Tribunal did not venture into a determination as to what was in "fact" the reasons for her return and did not engage in any process of "conjecture and/or hearsay" determination. Any submission as to errors said to have been committed by the Tribunal in respect to this finding of an asserted "fact" was, in any event, abandoned during the course of oral submissions. 38 It is thus concluded that the Tribunal's reasons do not expose any jurisdictional error. It is therefore further concluded that the Federal Magistrate did not err in so finding. 39 The second Ground of Appeal is thus rejected. 40 The Appellants' written submissions addressed the second and third Grounds of Appeal together and focussed attention upon the following paragraph from the reasons for decision of the Federal Magistrate: [24] There is no want of logic or unreasonableness in the Tribunal finding that in light of inconsistencies between the evidence of the applicants which related to "significant and straightforward aspects of their accounts [on which] they could be expected to give consistent accounts" that it did not accept the claims made. The applicants assert that no logical decision maker could make this finding, yet go on to submit that the inconsistencies in the evidence given merely tend to suggest an alternative finding and that the Tribunal adopted a "worst possibility". Clearly, the finding that the Tribunal did make was one that was possible on the evidence before the Tribunal. The connection between the second and third Grounds of Appeal is said to be that the Federal Magistrate erred in stating "that there was no want of logic or unreasonableness in the RRT treating 'inconsistencies' between the evidence of [the Appellants] as of itself leading to a finding without more that both are liars". The Appellants' written submissions contend that it "is illogical and irrational to treat it as logically following that both are lying from the mere fact that they give evidence which is inconsistent inter se…". The Federal Magistrate, it is submitted, "missed the point" - the "point [being] that the mere "inconsistency" does not of itself require the conclusion that both are lying". 41 This submission is also rejected. 42 The Tribunal reached its conclusions based upon adverse findings as to credit on both the part of the husband and the wife; the Federal Magistrate concluded that the Tribunal committed no jurisdictional error. In doing so, the Federal Magistrate committed no appellable error. 43 The third Ground of Appeal is rejected.

CONCLUSIONS 44 The appeal should be dismissed. 45 There is no reason why the Appellants should not pay the costs of the First Respondent.

THE ORDERS OF THE COURT ARE:

1. The appeal is dismissed.
2. The Appellants pay the costs of the First Respondent. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.