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MIGRATION - Review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa - whether jurisdictional errors occurred - whether Wednesbury unreasonableness is a ground for administrative review in Australia - no reviewable error disclosed.

VGAU v Minister for Immigration [2003] FMCA 119 (4 April 2003)

VGAU v Minister for Immigration [2003] FMCA 119 (4 April 2003)
Last Updated: 12 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VGAU v MINISTER FOR IMMIGRATION
[2003] FMCA 119



MIGRATION - Review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa - whether jurisdictional errors occurred - whether Wednesbury unreasonableness is a ground for administrative review in Australia - no reviewable error disclosed.

Migration Act 1958 (Cth), ss.36, 91R, 427(1)(d), 424, 427(1)(d) 474, 474(1), 476(1)(a) 476(1)(g), 476(4)(b)

Judiciary Act 1903 (Cth), s.39B

Migration Legislation Amendment (Procedural Fairness) Act 2002

S157/2002 v Commonwealth of Australia (2003) HCA 2

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449;

Craig v South Australia (1995) 184 CLR 163;

Minister for Immigration and Multicultural and Indigenous Affairs v Eshetu (1999) 197 CLR 611;

Minister for Immigration and Multicultural and Indigenous Affairs v Rajamanikkan (2002) HCA 32;

WADL v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 276;

Avesta v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 121;

Minister for Immigration and Multicultural and Indigenous Affairs v Anthony Pillai (2001) FCA 274;

WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 277;

Upham v Grand Hotel (SA) Pty Ltd and the Development Assessment Commission (1999) 74 SASR 557;

McCormack v Commission of Taxation [2001] FCA 1700;

Abede v The Commonwealth (1999) 197 CLR 510;

Minister for Immigration and Multicultural and Indigenous Affairs: ex parte Durairjasingham (2000) HCA 1;

Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 144;

R v Hickman; Ex parte Fox and Clinton (1954) 70 FLR 598;

Aronson & B Dwyer, Judicial Review of Administrative Action (2nd ed. 2000), pp 281-282.



Applicant:
VGAU



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ990 of 2002



Delivered on:


4 April 2003



Delivered at:


Melbourne



Hearing Date:


2 April 2003



Judgment of:


Bryant CFM



REPRESENTATION

Applicant:


Appeared in person



Counsel for the Respondent:


Ms Riley



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) That the Application be dismissed

(2) That the Applicant pay the Respondents costs if not agreed to be taxed in accordance with the Federal Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MZ 990 of 2002

VGAU


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This matter comes before the Court pursuant to s.39B of the Judiciary Act 1903 (Cth) for the review of the decision of the Refugee Review Tribunal ("the Tribunal") handed down on 1 August 2002. The application was originally filed in the Federal Court of Australia and transferred to the Federal Magistrates Court by North J on 16 September 2002.

2. At the hearing the applicant represented himself. However in October 2002 he had legal assistance which enabled him to file an amended application and contentions of fact and law. As a result of the decision of the Full Court of the Federal Court in NAAV (2002) FCAFC 228, it is unlikely that his grounds would have been arguable at that time, however, following the decision of the High Court in S157/2002 v Commonwealth of Australia (2003) HCA2, some or all of those grounds may become arguable. The applicant relied upon the application and contentions filed in October and counsel for the Minister was content to argue the matter on this basis notwithstanding that orders had been made by McInnis FM on 17 February 2003 for the applicant to file and serve a further amended application and contentions of fact and law. The respondent also relied upon contentions of fact and law filed in October in response to the contentions filed by the applicant.

Background

3. The applicant is a male citizen of India who was born on 19 July 1979. He is of Hindi ethnicity and Hindu religion. He arrived in Australia in April 2000 on a student visa. On 24 May 2002 he lodged an application for a protection visa. On 18 June 2002 a delegate of the respondent ("the Minister") refused the application and an application for review of that refusal was lodged with the Tribunal. The Tribunal affirmed the delegate's decision on 1 August 2002.

The applicant's claims and evidence before the Tribunal

4. The applicant's claims were set out in submissions from the Asylum Seeker Resource Centre and were made orally at the hearing conducted before the Tribunal on 26 July 2002.

5. The applicant claimed that he commenced a diploma course of computer studies at the LMIAT in Bikaner in July 1997. In January 1998 he became politically active and attended some meetings of the ABVP, a student party which is part of the national BJP party in India. He joined the ABVP in February 1998.

6. From March 1998 until February 1999 he worked for a chemical company. In November 1998 the applicant's group had assisted the BJP in the municipal elections and he continued to attend ABVP meetings. In December 1998 the applicant completed his diploma and commenced an Arts degree at Dungar College at Bikaner in July 1999.

7. Whilst at Dungar College the applicant was the campaign manager for a friend who stood for election to a student organisation at the college. In this capacity he arranged meetings at which his friend gave speeches. He asserted that during the campaign some senior students who had backed the Congress party, told the applicant to stop being active and threatened to harm him if he continued at the campaign. The election was held in September 1999 and was won by the opposing Congress party candidate. The applicant alleged that after the election some senior boys who had previously threatened him, slapped him, though his friend who had stood for election had had no problems. He asserts that he was then threatened on numerous occasions and at the end of September 1999 the boys tried to attack him but he was able to run away. He asserts that he spoke to senior party leaders about the threats and they told him not to worry and said that it was only a minor election and the situation would settle down. The applicant said that as his parents were concerned he left Bikaner and went to Jaipur. He did not complain to the police and asserted that the police never listened to complaints and he might have been harassed more if his opponents learned that he had complained.

8. Whilst in Jaipur he said that seven to eight boys came looking for him but his friend did not admit them. He was unable to explain how the boys knew he was in Jaipur. After that he went to Jalandhar where he stayed with relatives. Whilst in Jalandhar he asserted that he started receiving threatening phonecalls and his relatives asked him to leave.

9. He returned to Bikaner in March 2000 and asked if he could sit for his exams and was told to return to the college a couple of days later but when he did so he was attacked by a group of students. He said that he had to spend ten days in hospital with injuries to his head which required stitches and other injuries from having his legs and back kicked. He asserted that he reported the attack to the police at Bikaner but they had told the people who attacked him and this had made them more annoyed with him. He said that they had rung his brother and told his brother that they would not let him live next time.

10. The applicant said that after he was discharged from hospital he returned to Jalandhar. He attended a medical examination for his student visa to Australia about a week later. He asserted that he did not tell the doctor about his injuries because he did not wish to be stopped from going to Australia and the doctor had not noticed his injuries. He asserted that he was afraid to return to India, that he would be attacked if he returned and his friends had told him that the people who had attacked him were still asking about him.

The Tribunal's reasons

11. The Tribunal accepted that the applicant was a member of the ABVP and noted that it was the largest student organisation in India. The Tribunal noted that the ABVP had been described as the student wing of the BJP. The BJP led the multi-party national government of India. The Tribunal accepted that the applicant assisted his friend in his campaign in the student elections and may have been threatened by senior students during the campaign. However the Tribunal found that these threats were not of such severity as to constitute persecution.

12. The Tribunal did not accept that the applicant had continued to be harassed and threatened after the election campaign. The Tribunal noted that his friend was the unsuccessful candidate and there would be no political objective to be achieved by continuing to harass the applicant after the election was held. The applicant was unable to provide a satisfactory explanation to the Tribunal when asked why he continued to be harassed and his friend who was the candidate was not.

13. The Tribunal found it implausible that the applicant would not have sought the protection of the authorities before abandoning his course and leaving his home if he was being threatened as claimed and did not accept that the Indian authorities would have refused to protect him because of his opponent's political influence. The Tribunal did not accept that student elections are of sufficient importance to have any influence on the conduct of the India authorities in Rajasthan and found that the authorities would not have failed to protect the applicant if he requested it.

14. The Tribunal found it implausible in the face of a lack of explanation by the applicant, that anyone would have pursued him to Jaipur, a six hour drive from Bikaner or that the telephone number of his relatives in Jalandhar was obtained and he was harassed while there. The Tribunal accepted that he went to Jaipur, Jalandhar and Chandigarth but did not accept that he went to those places to escape persecution.

15. The Tribunal did not accept that the applicant was attacked, severely injured and had to spend ten days in hospital when he returned to Bikaner in March 2000. The Tribunal did not accept that the doctor who examined him for his student visa to Australia would not have noticed recent injuries which were sufficiently severe to warrant ten days in hospital.

16. The Tribunal concluded that the applicant had not been threatened, harassed or assaulted by students who were politically opposed to him after the student elections which were held in September 1999. The Tribunal found that the applicant had fabricated these claims to provide a basis for claiming refugee status. The Tribunal found that the applicant had not been persecuted in the past for reason of his political opinion.

17. The Tribunal did not accept that if the applicant were to return to India now or in the reasonably foreseeable future that there is a real chance that he would be harmed by the people who were his political opponents in the student election campaign. The Tribunal found that the applicant was not persecuted during the year prior to his departure for Australia and there was no reason apparent to the Tribunal why the students would seek to harm the applicant if he were to return to India now, nearly three years after the election was held. The Tribunal rejected the assertion that his student opponents were still looking for him. The Tribunal also found that it was open to him to live elsewhere in India and rejected the suggestion that he has a political profile which would place him at risk of harm no matter where he went in India. The Tribunal found that he belonged to a student organisation aligned with the party leading the coalition which is currently in power in India. The Tribunal found that if he were to return to India and resume his political activities, in view of the political strength of the BJP, the applicant would be protected by the authorities against any threats to harm him. The Tribunal found that the applicant's fears were not well founded.

The law

18. Following the High Court decision in S157/2002 v Commonwealth of Australia (2003) HCA 2, I must determine whether there was an error on the part of the Tribunal which would enliven the entitlement to an order under s.39B of the Judiciary Act 1903 (Cth) notwithstanding s.474 of the Migration Act.

19. On 4 February 2003 the High Court gave judgment in S157/2002 v Commonwealth of Australia. The High Court determined the privitive clause provision in s.474(1) of the Act (properly construed) is a valid enactment. It found the proper construction of the Act, including s.474 imposed an obligation of providing a fair hearing as a limitation upon the decision making authority; see per Gleeson CJ, (37)-(38), Gaudron, McHugh, Gummow, Kirby and Hayne JJ at (83), and per Callinan J at (160). The question of whether procedural fairness must still be accorded by the Tribunal so that it acts within its jurisdiction in the light of the Migration Legislation Amendment (Procedural Fairness) Act 2002 is yet to be determined. The decision in S157/2002 related to the Act as it stood prior to that amendment.

20. The decision in S157/2002 overrules NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449. It does so necessarily in relation to the Tribunal's obligation to accord procedural fairness, and in relation to the way in which NAAV found that s.474 had expanded the jurisdiction of the Tribunal. An administrative tribunal exceeds its power and thus commits a jurisdictional error if it identifies the wrong issue, asks itself a wrong question, ignores relevant material, relied on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion in a way that effects the exercise or purported exercise of the Tribunal's power (Craig v South Australia (1995) 184 CLR 163, per McHugh, Gummow and Hayne JJ at 179). The list is not exhaustive.

21. The Tribunal is required to consider the elements of each of the claims made by the applicant. The Tribunal is empowered to exercise all the powers and discretion that are conferred by the Act. That is to consider a valid visa application made by an applicant and in doing so to have regard to all information required to be taken into account under the code of procedure laid down in Part 2, Division 3, Subdivision AB of the Act.

The applicant's grounds

22. The applicant relied upon a number of grounds identified in his amended application. The applicant contended that:

1) The Tribunal acted without or in excess of jurisdiction by failing to address and deal with essential elements of the applicant's claim raised by the material and evidence before it. Namely,

a) the question of whether the applicant faced a real chance of persecution for reason of his imputed political opinion arising from his involvement in the ABVP; and

b) the question of whether the authorities would offer protection to the applicant in light of the handling of his previous complaints to the authorities.

23. The applicant contended that the Tribunal did not consider whether he had been persecuted because of his imputed political opinion. The Tribunal had not accepted that the applicant was threatened, harassed and assaulted by students who were politically opposed to him after the student elections held in September 1999 and found that he had not been persecuted in the past by reason of his political opinion. The applicant contended that the Tribunal had an obligation to consider whether the material raised claims of a fear of persecution for reasons of actual and imputed political opinions. He contended that an assessment of whether he was persecuted based on his imputed political opinion was distinct from whether his fear was based on his actual political opinion and contended that it was necessary for the Tribunal in this respect to consider country information as to the position of the ABVP and the position of the opponents of the Congress party. He contended the Tribunal failed to consider any relevant or probative country information and the failure to address essential elements of his claim amounted to a constructive failure to exercise its jurisdiction.

24. However the applicant's case was not put to the Tribunal in this way. A detailed submission in support of the applicant's claims was made on 5 June 2002 the Tribunal noted that the applicant's adviser -

Stated that the applicant feared persecution on account of his expressed and imputed political opinion

25. In support of this contention the applicant asserted that he had been threatened by political opponents and beaten on one occasion and had to spend two weeks in hospital because of his injuries. In short, the applicant did not suggest that there was any imputed political opinion different from his actual political opinion and the Tribunal dealt with his case in the manner in which it was presented (Court Book 71).

26. The applicant contends the Tribunal failed to consider any relevant or probative country information in its assessment of his claim of persecution based on actual and imputed political opinion. I am satisfied however that the Tribunal did consider the country information in relation to the position of the ABVP membership of which based the applicant's claims for protection. The Tribunal referred to country information about the ABVP (Court Book 78):

There are several student organisations in India and Akhil Bharatiya Vidyarthi Tarishad (ABVP) is one of them. It started some time in 1948 and formally registered on 9 July 1949, the Tarishad today is a major organisation and is widely known throughout the country. Perhaps nobody would dispute the claim of the ABVP that it is the largest student organisation of India.

27. The Tribunal went on to note that:

The ABVP as been described as the student wing of the BJP. The BJP leads the multi-party coalition which governs India.

28. I discern that the applicant's real complaint may be that the Tribunal did not consider the selective country material upon which he relied at the hearing, because it is plain in my view that the Tribunal did consider the country information in relation to the political organisation which was the genesis of the claims of persecution of the applicant. The information relied upon enabled the Tribunal to come to the conclusion that the applicant supported a mainstream political party albeit at a student political level.

29. The applicant contended that, in not accepting that the Indian authorities would have refused to protect the applicant because of his opponents' political influence and would not have failed to protect him if he had requested him to do so, the Tribunal failed to take into account that the applicant had previously reported assaults to the authorities but no action was taken because the police were Congress party sympathisers. This ground asks the Court to reassess the facts and find facts contrary to the express findings of the Tribunal. The finding of the Tribunal was:

That the authorities would not have failed to protect the applicant if he had requested them to do so.

30. It is a matter for the Tribunal as to the probity it accords the various aspects of the evidence put before it (see Minister for Immigration and Multicultural and Indigenous Affairs v Eshetu (1999) 197 CLR 611). The Tribunal is not required to adopt an uncritical acceptance of all or any allegations put before it by the applicant.

31. However, it is difficult to discern where this assertion on the applicant's part was actually put to the Tribunal. The references by the applicant to the Court Book on pp. 43 and 60 relate to the incident when the applicant was severely beaten and hospitalised. The Tribunal did not accept that the applicant had been assaulted as asserted. The Tribunal made its findings on the basis of the implausibility of both the applicant's claim that the police would fail to protect him and that he had been assaulted in the manner described. This was a matter for the Tribunal and the applicant is not entitled to go behind these findings.

32. The applicant contends that the decision was based on a finding that a particular fact did not exist and for which there was no evidence. That finding is a finding that the Tribunal did not accept the Indian authorities would have refused to protect the applicant because of his opponents' political influence. However the Tribunal did address this part of the applicant's claim and found in effect that it was implausible that a supporter of the candidate in student elections would be harassed (for Convention reasons) if the candidate himself was not, and that it was implausible that someone would leave home without reporting the alleged assaults to the police because the police would not be influenced by the outcome of a minor student election. It is difficult to see therefore how it could be said that the Tribunal failed to address this issue (Court Book 79). In its conclusion the Tribunal also found that if the applicant were to return to India and resume his political activities, in view of the political strength of the BJP, the applicant would be protected by the authorities against any threats of harm to him.

33. The applicant contended that the decision was based on a finding that a particular fact did not exist and for which there was no evidence. This finding was that the applicant had not been assaulted in March of 2000. The finding of the Tribunal was (at Court Book 79):

The Tribunal does not accept that the applicant was attacked, severely injured and had to spend ten days in hospital when he returned to Bikaner in March 2000.

34. The applicant contends that the finding that there was no assault was based on a finding that the medical officer who examined the applicant in relation to his student visa did not notice the injuries and should have noted the injuries, that the foundation for finding the applicant had not been assaulted (which in turn supported the finding he had fabricated his claims) was based upon the finding that the medical officer did not notice the injuries and he should have. The applicant contends that there was insufficient evidence before the Tribunal for it to make such a finding, that he had provided a plausible explanation at the hearing as to why the doctor had not observed it.

35. The respondent contended that the applicant's argument was based upon a misapprehension about the former s.476(1)(g) of the Act which permitted review on the grounds that there was no -

... evidence or other material to justify the making of the decision.

36. However, counsel for the Minister pointed out that it was not enough there was no evidence of a particular fact, as long as there was evidence to justify the ultimate decision (see Minister for Immigration and Multicultural and Indigenous Affairs v Rajamanikkan (2002) HCA 32 at 41 per Gleeson J).

37. The Tribunal had a number of reasons for not being able to reach the requisite state of satisfaction in relation to whether the applicant was a person to whom Australia has protection obligations. I agree with the Minister's submission on this issue that the applicant appeared to have misunderstood or misapprehended what constituted a fact of the type that could have warranted relief under the former s.476(1)(g). In WADL v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 276, French, Heerey and Mansfield JJ said, at (17) and (18):

Another relevant point for present purposes is to be found in the decision of the Full Court of this Court (Spender, O'Loughlin and Gyles JJ) in Avesta v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 121. Again that case involved a decision of the Tribunal based on inconsistency and implausibility findings and an assertion by the appellant that there were in fact no significant inconsistencies or implausibilities. Their Honours said (at [16]):

" There is a further matter which is fatal to this appeal, and that is that the �facts' alleged in this case to be non-existent are, in our judgment, not �facts' of the kind referred to in s 476(4)(b) of the Act. They are assessments reached by the Tribunal after a consideration of the appellant's evidence and the claims he advanced. The Tribunal rejected the appellant's account because it did not believe him. The reasons for that disbelief were the Tribunal's assessment that the appellant had been inconsistent in significant ways in his recounting of particular matters and the Tribunal's determination that particular features of his account were inherently improbable. These reasons are not �particular fact(s)' for the purpose of s 476(4)(b) of the Act. An attack on the correctness of the reasons for finding that the appellant was not believable is a challenge to the correctness and rationality of the reasoning process, and does not provide an available basis for review of the decision reached as a result of that reasoning."

38. In my view the comments of the Full Court apply directly in this case. The allegedly non-existent "fact" was in fact the Tribunal not being satisfied of the fact that the applicant had been assaulted and was an assessment the Tribunal reached after a consideration of his claims.

39. The Tribunal found it implausible that a person would be assaulted in such a way because of involvement in student elections which had occurred three years before; that it was implausible that he was still being harassed; that it was implausible that he would be harassed while the actual candidate would not; that student elections are of minor importance; the ABVP was part of the governing party and there was no political objective in harassing him after the election. The Tribunal was simply not persuaded by the applicant.

40. The applicant contended that the Tribunal did not consider various documents including the medical examination referred to or any records pertaining to the medical examination, a copy of the hospital records relating to the March 2000 hospital admission and any records relating to the assault and injuries of March 2000. He contended that the Tribunal had no medical evidence before it to support its conclusion that the medical officer should have noticed the injury. However the Tribunal is not required by virtue of s.427(1)(d) to make further enquiries or to consider whether it should make enquires; see Minister for Immigration and Multicultural and Indigenous Affairs v Anthony Pillai (2001) FCA 274 and WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 277 at par 24 and 25. The Tribunal actually raised with the applicant its concern about the assertion that he had been seriously injured and suggested but that the injuries had not been obvious to a doctor only a short time later. The applicant was in fact alerted to the Tribunal's view about the plausibility of his assertion.

41. The applicant contends that the decision was so unreasonable that no reasonable decision maker could have made it. The particular matter relied upon by the applicant in relation to the unreasonableness claim is the Tribunal's finding that there was no political objective to be achieved by harassing the applicant after the election was held which the applicant contends resulted in the Tribunal misconstruing and misapplying and misinterpreting the definition of "persecution" as provided for in s.91R of the Act. He contends that persecution does not imply an element of motivation on the part of those who persecute and that persecutors do not have to be motivated by any particular gain.

42. In my view, this contention misunderstands the Tribunal's reasons. The Tribunal was simply considering the question of whether the alleged harassment and extent as asserted by the applicant would have occurred. One of the matters the Tribunal took into account in concluding that it was not satisfied that it had, was that because there was nothing to be achieved by the alleged harassment, the Tribunal found it implausible that the harassment would have occurred. That comment by the Tribunal was not a misconstruction of the conception of persecution nor did it in any sense lead to an unreasonable result.

43. The respondent submitted that there is in any event, doubt as to whether unreasonableness is a ground for judicial review. The respondent cited the decision in Upham v Grand Hotel (SA) Pty Ltd and the Development Assessment Commission (1999) 74 SASR 557 at [160-168] -

"That the status of reasonableness as a general ground of judicial review, and its content, awaits authoritative determination by the High Court. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 73 ALR 746 the decision, the subject of judicial review, was a decision by the Refugee Review Tribunal. The decision was that the applicant was not a refugee. That being so, the applicant was not entitled to a protection visa under section 36 of the Migration Act 1958 (Cth). That decision involved a consideration of facts relating to the applicant, and the application of those facts to the definition of a refugee to be found in a certain Convention. That is a somewhat simplified description of the position. The decision of the Tribunal was attacked on the grounds that it was so unreasonable that no reasonable Tribunal, acting within jurisdiction and according to law, would have come to such a decision. The suggested illogicality or unreasonableness in the Tribunal's decision was said to lie in the failure to give sufficient weight to certain information before it, and the fact that it attached unwarranted importance to the absence of certain evidence: see Gleeson CJ and McHugh J at 735-754 (40). The attack was treated as raising the issues of Wednesbury unreasonableness. It is to be noted that this was a case in which the attack was upon the exercise of a broad discretion. What was under attack was a decision by the Tribunal as to whether the Applicant met a criteria which, if satisfied, entitled him to the grant of the visa in question: see Gummow J at 767-768 (127-128).

Eshetu, therefore, bears some similarity to the present case.

Gleeson CJ and McHugh J did not express a firm view one way or the other as to the availability of Wednesbury unreasonableness as a basis for judicial review of administrative action. They did not regard the case as presenting that sort of action in any event. They said at 753-754 (40):

"Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as `illogical' or `unreasonable' or even `so unreasonable that no reasonable person could adopt it'. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular consequence."

They went on to refer to the reasoning process of the Tribunal, and to make the point that the complaint was the giving of inadequate weight to certain considerations and undue weight to others. They said that this was not a case of Wednesbury unreasonableness: 175(45).

Gaudron J and Kirby J said at 762(101):

"In essence, an unreasonable decision is one for which no logical basis can be discerned."

They said that the case before them was not such a case. A logical basis for the Tribunal is reasoning is apparent.

Gummow J considered the issue of Wednesbury unreasonableness in some detail. He made the point that the concept of Wednesbury unreasonableness had its origin in a case dealing with the exercise of a wide discretion to impose conditions and not a decision on an anterior question as to a jurisdictional fact: 766-767(123). He made the point that in the case before him what was in issue was the determination by the Tribunal that it was not satisfied that the Applicant answered a statutory criterion (a refugee) that had to be met before the Tribunal was empowered to grant a visa. That decision was nevertheless reviewable and he referred to a number of the cases to which we have referred. The same is true of the case before this Court. What is in issue is the assessment of the DAC that the development was not seriously at variance with the development plan, or to be more precise, its failure to make the assessment that the development was seriously at variance. Gummow J went on to refer again to a number of the cases to which we have referred, and to the grounds of review that they indicate are available in such a case. Having considered a number of cases, he concluded at 771 (145) that the appropriate basis for judicial review in such a case is one that:

"... would permit review in cases where the satisfaction of the decision maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds."

He said that whether the ground of review was stricter than that could be left for determination in another case. He concluded at 771 (147) that the decision of the Tribunal was not based on findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds. It was not to the point that another decision maker might have reached a different view, and might have done so reasonably.

Hayne J expressly reserved the availability of Wednesbury unreasonableness as a ground for the exercise of judicial review: at 773 (159). Callinan J also found it unnecessary to determine the extent to which Wednesbury unreasonableness is available as a general ground of judicial review: at T/C (187). He also was satisfied that the case was not one in which the Tribunal had failed to determine a factual issue which was an essential preliminary to the making of its ultimate decision. The decision could not be characterised as in any relevant sense an unreasonable one, because it depended upon a view of the facts that was open to the Tribunal: at 780-781 (193-194).

Those passages emphasise a need for care when unreasonableness is put forward as the basis of judicial review, in a case like the present in which what is in issue is the formation of a complex assessment as the condition of the exercise of a power to grant a consent, or as determining that the power to grant a consent does not exist. The relevant ground of judicial review is not made out by establishing that the decision is one with which the court exercising the power of judicial review disagrees, or even strongly disagrees. Assuming, as we are prepared to, that unreasonableness is available as a ground of judicial review, it is made out by establishing that the decision is one which displays a lack of logic or probative material to support an essential step in the reasoning. We emphasise again the need to avoid drifting into a review of the assessment on its merits."

44. The respondent also cited McCormack v Commission of Taxation [2001] FCA 1700 per Sackville J. At paragraph 87 His Honour said:

"It is an open question as to whether Wednesbury unreasonableness provides a basis for judicial review, where the unreasonableness is said to lie in the irrationality, illogicality or perverseness of a fact-finding process: see Abebe v The Commonwealth (1999) 197 CLR 510 at 578-579 per Gummow and Hayne JJ; Eshetu at 626 per Gleeson CJ and McHugh J at 656-657, per Gummow J; Upham v The Grand Hotel (SA) Pty Ltd (1999) 74 SASR 557 at 584-585 per Doyle CJ and Bleby J: M Aronson & B. Dwyer, Judicial Review of Administrative Action (2nd ed. 2000), pp. 281-282. I shall assume in the applicant's favour that irrational, illogical or "perverse" findings of fact can attract judicial review on the grounds of Wednesbury unreasonableness."

45. I note that notwithstanding the respondent's submission that there is doubt about whether unreasonableness is a ground for judicial review in Australia, that whilst it can fairly be said the question remains open for authoritative determination by the High Court, in each of the two cases cited the Court was prepared to accept that it was available.

46. However, the question does not arise for determination here because in my view there was no illogicality about the decision of the Tribunal in coming to its conclusions and in particular its lack of satisfaction as to the applicant's claim.

47. The applicant further contended that he was denied natural justice in that before making the finding that the applicant was not assaulted in March 2000, the Tribunal failed to consider exercising its power pursuant to s.427(1)(d) of the Act and to invite the applicant to provide further additional information pursuant to s.424 of the Act. However, it is clear that s.427(1)(d) does not impose any legal obligation on the Tribunal. It is not a procedure "required by the Act" within the meaning of s.476(1)(a). The Minister of Immigration & Multicultural Affairs v. Anthony Pillai (2001) FCA 274 (per Heerey, Goldberg and Weinberg JJ) paragraph 86; WAGJ v Minister of Immigration & Multicultural & Indigenous Affairs (2002) FCA FC277 per Heerey, RD Nicholson and Mansfield JJ at paragraphs 24 and 25, but in any event the Tribunal raised these matters with the applicant. (At CB pages 76 and 77.) The Tribunal commented to the applicant that it was surprised that if he had been so recently injured as seriously as he claimed, that the doctor would not have noticed. The Tribunal informed the applicant that it was having difficulty accepting that he had been injured as seriously as he claimed if his injuries had not been obvious to a doctor only a short time later. There could be no suggestion that the Tribunal had in any way misled the applicant about its concerns on this issue and no ground of lack of natural justice or procedural fairness arises.

48. The applicant contended that the Tribunal should not have made a finding that he was not assaulted because the medical officer had not observed his injuries and contended that he offered a plausible explanation to the Tribunal as to why the injuries may not have been apparent to the medical officer. Unquestionably the applicant did offer an explanation to the Tribunal, however, the Tribunal did not find it to be a plausible explanation. It is a matter for the Tribunal as to the probity it accords the various aspects of the evidence put before it.

A finding on credibility in particular is the function of the Tribunal and if the primary decision maker has stated that he did not believe a particular witness, no detailed reasons need be given as to why that witness was not believed. The Tribunal must give the reasons for its decision, it is not required to give the sub-set of reasons why it accepted or rejected individual pieces of evidence: see Minister for Immigration & Multicultural Affairs: ex parte Durairajasingham (2000) HCA1 per McHugh J at paragraph 67. In this case in any event, the reasons for the disbelief of the Tribunal are clear. It arose because of the Tribunal's view that it was inherently unlikely the events occurred as alleged by the applicant.

49. Finally, the respondent contended that the High Court in S157 had not overruled NAAV except insofar as the case of NAAX is concerned. Lobo v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 144 per Gyles J. At paragraph 13, His Honour said:

"Furthermore, although NAAV had been decided prior to the argument in S157 and S134, that decision was not overruled or expressly disproved. The decision in S157 is only inconsistent with the decision in NAAV insofar as the case of NAAX is concerned. The decision in S134 is not inconsistent with any part of NAAV."

and at paragraph 14:

"It follows from that line of authority that a privative clause such as section 474 will operate to protect against some, but not all, errors which are jurisdictional in a sense that they were otherwise found prerogative relief."

50. The question of to what extent NAAV has been overruled by S157 and the extent to which, if at all, section 474 operates to protect against jurisdictional error remains to be determined by the High Court, but does not arise for determination in this case because of I am satisfied that there was no jurisdictional error on the part of the Tribunal.

51. The Tribunal's decision is a privative clause decision for the purposes of s.474(1) of the Act. The exceptions to the operation of the privative clause are well known; R v Hickman; Ex Parte Fox and Clinton (1954) 70 LLR 598 at 616 per Dixon J; NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCAFC 228.

52. No argument was advanced by the applicant which establishes any of the Hickman exceptions and the application must be dismissed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 8 May 2003
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