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MIGRATION – Appeal – no error disclosed – whether want of logic is available as a ground of judicial review

VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 (10 November 2004)
Last Updated: 10 November 2004

FEDERAL COURT OF AUSTRALIA


VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286


MIGRATION – Appeal – no error disclosed – whether want of logic is available as a ground of judicial review

Migration Act 1958 (Cth) Part 8


NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235, followed

Re Minister for Immigration and Multicultural Affairs; Ex Parte S20/2002 and Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1165, considered

Transurban City Link v Allan (1999) 95 FCR 553, referred to

NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52, referred to

W404/01A of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 255, referred to
Thevendram v Minister for Immigration & Multicultural Affairs [2000] FCA 1910, referred to





VWST v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, MR G BREWER SITTING AS THE REFUGEE REVIEW TRIBUNAL AND DR PETER NYGH IN HIS CAPACITY AS PRINCIPAL MEMBER ON THE REFUGEE REVIEW TRIBUNAL

V 784 OF 2004





KIEFEL, MARSHALL AND DOWNES JJ
10 NOVEMBER 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 784 OF 2004


ON APPEAL FROM A SINGLE JUDGE OF THE COURT


BETWEEN: VWST
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MR G BREWER SITTING AS THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

DR PETER NYGH IN HIS CAPACITY AS PRINCIPAL MEMBER ON THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT
JUDGES: KIEFEL, MARSHALL AND DOWNES JJ
DATE OF ORDER: 9 NOVEMBER 2004
WHERE MADE: MELBOURNE


THE COURT ORDERS THAT:


1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of the appeal.










Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 784 OF 2004


ON APPEAL FROM A SINGLE JUDGE OF THE COURT


BETWEEN: VWST
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MR G BREWER SITTING AS THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

DR PETER NYGH IN HIS CAPACITY AS PRINCIPAL MEMBER ON THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT


JUDGES: KIEFEL, MARSHALL AND DOWNES JJ
DATE: 10 NOVEMBER 2004
PLACE: MELBOURNE


REASONS FOR JUDGMENT

THE COURT

1 This is an appeal from a judgment of Finkelstein J (unreported, 4 June 2004) in which his Honour dismissed the appellant’s application for prerogative relief against the respondents. On 9 November 2004 we ordered that the appeal be dismissed with costs. What follows are our reasons for the making of that order.

2 The Refugee Review Tribunal (‘RRT’) decided that the appellant was not entitled to a protection visa by reference to the UN Convention relating to the Status of Refugees 1951, as amended by the UN Protocol relating to the Status of Refugees 1967 (‘the Convention’). His Honour ruled that the Tribunal’s reasons could not be regarded as unreasonable or illogical, although the latter ground was in any event one not open to the appellant on the authorities.

Background

3 The appellant is a citizen of Sri Lanka of Tamil ethnicity. He entered Australia on 7 September 1996 and later that month applied for a protection visa.

4 On 16 January 1997 a delegate of the first respondent found that the appellant was not a person to whom Australia owed protection obligations under the Convention. On 21 January 1997 the appellant applied to the RRT to review the decision of the delegate. On 29 April 1997, the RRT refused the appellant’s application to review the delegate’s decision.

5 The appellant applied pursuant to Part 8 of the Migration Act 1958 (Cth) (‘the Act’) to the Court for judicial review of the 29 April 1997 RRT decision. On 10 June 1998 Finn J dismissed the application for judicial review. On 9 March 1999 a Full Court allowed the appeal from the judgment of Finn J and remitted the matter to the RRT, differently constituted, for consideration and determination in accordance with law.

6 The RRT conducted a further review of the delegate’s decision and for that purpose conducted a hearing on 2 June 1999. On 10 September 1999 the RRT decided to affirm the decision of the delegate. The appellant then applied under Part 8 of the Act to the Court to review that decision. Heerey J dismissed the application on 15 June 2000. On 21 December 2000, a Full Court dismissed the appeal from the judgment of Heerey J.

7 On 18 January 2001, the appellant applied to the High Court of Australia for prerogative and injunctive relief in respect of the decision of the RRT made on 10 September 1999. The High Court remitted the application to this Court.

8 On 4 June 2004, Finkelstein J dismissed the appellant’s application to review the RRT’s decision of 10 September 1999.

The reasoning of the primary judge

9 His Honour provides the following summary of the appellant’s case as put to the Tribunal (at [2]):

‘In brief outline, this is the case the prosecutor put to the tribunal. He is a Sri Lankan of Tamil ethnicity. He was born in 1951 in a hamlet outside Jaffna, "the fortress of Tamil militancy". He completed his secondary eduction in 1976, graduated in law in 1980 and started his legal career in Jaffna later that year. Things went well until 1983 when communal rioting broke out in his region between Tamil separatists and the Sri Lankan government. In 1984, he was abused and assaulted by the military. In 1988 he was arrested by the Indian Peace Keeping Force (IPKF) then stationed in Sri Lanka to keep down the separatists. He was questioned by the IPKF but released two days later after his wife approached a number of prominent citizens. Later in 1988 a member of the Rural Court, of which the prosecutor was a member, was killed presumably by one of the separatist groups operating in the area. The prosecutor fled the district and moved to Colombo leaving his wife and young child behind. About a month after he left, his wife was threatened and harassed. Eventually, his wife and child joined him in Colombo. When the situation improved the family returned to the Jaffna district. However they did not remain there long. The prosecutor and his family returned to Colombo where the prosecutor established a legal practice. He later purchased a home. However, in 1996 he was taken into custody by the police because he was suspected of being involved with the separatists. He was detained for ten days and seriously mistreated. He was released and placed on monthly reporting conditions after his wife paid a substantial bribe. Later that year he obtained a visa to travel to Australia to attend a legal conference. He was able to pass through security at the airport at Sri Lanka "as he was in the company of the President of the Bar Association and other lawyers." The prosecutor attended the conference. A month after his arrival in Australia he applied for a protection visa, claiming that he was a refugee who would be persecuted if he were required to return to Sri Lanka.’

10 In relation to events after 1988 the Tribunal did not accept the appellant’s story, finding it to be a ‘concoction designed to embellish a claim to refugee status’, his Honour noted. In particular the Tribunal rejected the appellant’s claims that he had fled the Jaffna area in 1988 and had been arrested and mistreated in 1996. In relation to the latter finding the Tribunal had provided its reasons that the appellant had lived in Colombo for some time, he had had no problems with the authorities and that he had only an indirect connection with the Tamils. In mid 1995 the authorities had "swept" the area in which he was living and no action was taken against him. He had been able to travel.

11 His Honour noted that the Tribunal had made the following further findings in relation to the appellant’s alleged detention:

• when interviewed by a departmental officer the appellant, a lawyer, was unable to name the Act according to which he was arrested;

• the Tribunal did not accept that he had omitted a claim that he was released on reporting conditions from his initial application, because it would have made his statement too long; and

• the Tribunal did not find credible the claim that he would have been released from custody by the payment of a bribe if he had been of any interest to the authorities and given the seriousness of the charges under the Prevention of Terrorism Act.

12 His Honour did not consider these findings to be unreasonable in the Wednesbury sense, although doubting that such an attack could be brought with respect to particular findings and not the ultimate decision. This ground is not pursued in this appeal.

13 The other ground argued before his Honour was that the findings were illogical. His Honour however considered himself bound by the Full Court in NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 (‘NACB’) at [29]. The Court there held that illogical reasoning did not constitute an error of law and that nothing said by the High Court in Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1165 (‘Appellant S106/2002’), warranted a departure from earlier cases. His Honour in any event rejected the appellant’s claim that the decision of the Tribunal suffered from want of logic, although it was not necessary to decide the point.

The appeal

14 The notice of appeal contained one ground only. It alleged that his Honour erred in not finding that ‘the decision [of the RRT] was affected by jurisdictional error because of logical flaws in the Tribunal’s process of reasoning.’

15 The appellant submitted that "want of logic" is available as a ground of review following the judgment of the High Court in Appellant S106/2002 (Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 was also determined in the same judgment).

16 However the Full Court in NACB, which identified an important error of logic, considered both the earlier authorities of this Court and what is to be gleaned from Appellant S106/2002, in the following passages:

At [24] to [30] in NACB, the Full Court said:

‘[24] Epeabaka was followed by this Court in Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at 437, Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424 at 428 and 444 and WADE of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 214 at [27]. Gamaethige was applied by the Full Court in NAMM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 32 at [44]-[46]. It is well-settled that a Full Court of this Court should follow decisions of an earlier Full Court on the same question unless the Court is of the view that the earlier reasoning was clearly wrong. In this case we are not so persuaded.

[25] The decision in Gamaethige went on appeal to the High Court as Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 and the appeal was dismissed. In that matter McHugh, Gummow and Callinan JJ held that the decision of the RRT was not shown to be illogical, irrational or lacking in a basis in findings or inferences of facts supported on logical grounds.

[26] Gleeson CJ observed (at 62 [9]) that:

"... It is often unhelpful to discuss, in the abstract, the legal consequences of irrationality, or illogicality, or unreasonableness of some degree. In a context such as the present, it is necessary to identify and characterise the suggested error, and relate it to the legal rubric under which a decision is challenged."

[27] The judgments of McHugh, Gummow and Callinan JJ proceeded on the basis that the determination by the RRT was not irrational or illogical as the appellant had contended. The High Court in Appellant S106/2002 made no reference to the line of Full Federal Court authorities referred to above.

[28] In Appellant S106/2002, McHugh and Gummow JJ referred to the remarks of Mason CJ in Australian Broadcasting Tribunal v Bond and said (at 72 [57]):

"The minister’s reliance upon what was said by Mason CJ in Australian Broadcasting Tribunal v Bond was misplaced. Mason CJ there was construing those of the grounds of review of decisions, specified in s 5 of the ADJR Act, in particular that the decision ‘involved an error of law’, which might embrace complaints as to fact finding. The court was not considering notions of jurisdictional error elaborated in the decisions given under s 75(v) of the Constitution. Section 5 is construed with a scope which spans more than jurisdictional error. Thus, for example, it is a ground under s 5(1) that ‘the decision involved an error of law’ (para (f)), yet as Muin v Refugee Review Tribunal illustrates, there may be errors of law within jurisdiction and so beyond the constitutional writs. In any event, as the judgments in Minister for Immigration and Multicultural Affairs v Rajamanikkam illustrate, what was said in Bond respecting erroneous fact finding and review under s 5 of the ADJR Act may give rise to differences of opinion in this court." (Footnotes omitted).

[29] In our view, there is nothing in these remarks which would warrant a departure from the earlier line of decisions in this Court to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error. Nor does the want of logic which has been identified in the present case sound a "warning note" of the type referred to in Epeabaka (at 422) as to whether there was only a purported, and not real, exercise of power by the RRT.

[30] Accordingly, the conclusion we have reached in the present case is that there is substance in the argument that there was a want of logic in one aspect of the reasoning of the RRT. However, want of logic does not of itself suffice to constitute error of law, still less error of law which is jurisdictional. There is nothing else in the material, apart from the one aspect of illogicality, to cast doubt upon the RRT’s reasoning. Moreover, there are several bases upon which that reasoning can, in any event, be supported. Accordingly, on the present state of the authorities, there is no reviewable error.’
17 Although not too much can be drawn from the High Court’s refusal of special leave, we note that in NACB the special leave point was said to be:

‘whether judicial review of an administrative decision is available where the requisite satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds.’

On 14 September 2004 the Court refused special leave, for the reason that there were insufficient prospects of success.

18 We are not convinced that the analysis in NACB is erroneous: see Transurban City Link v Allan (1999) 95 FCR 553 at [26] to [31]. Accordingly we agree that the current state of the law is that want of logic in the reasons of the RRT is not an available ground of review. This point was confirmed by a Full Court in NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52, where NACB was referred to with approval at [25]. See also W404/01A of 2002 v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCAFC 255 at [35].

19 We add, although it is unnecessary to do so, that we consider Finkelstein J was correct in rejecting the claim of want of logic. The appellant’s case does not involve an attack upon the Tribunal’s process of reasoning.

20 In addition to the findings concerning the appellant’s detention, referred to at [11] above, the appellant identified two others as illogical: that the authorities were not reliant on information obtained as late as April 1996 concerning the appellant’s activities in the north of Sri Lanka and a finding which concerned his destruction of documents which were relevant to his case.

21 These are discrete findings going to credit upon which different views might be held. In the appellant’s argument developed during the hearing of the appeal, it became apparent that the attack upon the findings was not based upon lack of logic, in the sense of flawed reasoning. Rather the findings were said to be illogical because there was no, or no sufficient, evidence available to the Tribunal to support them. This is a ground different from anything raised in the order nisi or argued before Finkelstein J, one of "no evidence".

22 The appellant submitted that a different and wider view of what amounts to a want of logic is to be derived from the reasons of Lee J in Thevendram v Minister for Immigration & Multicultural Affairs [2000] FCA 1910. We do not agree. His Honour does not suggest that a finding unsupported by evidence amounts to an illogical finding.

23 The respondent also raised the matter of the appellant needing an enlargement of time for bringing the applications in the High Court. This matter was not raised before Finkelstein J and we have decided the appeal by reference to his Honour’s decision, which is in our view correct. We put to one side the lengthy history of this matter and the question whether the issues now sought to be agitated could have been raised in earlier proceedings, since that matter was not fully argued on the appeal. Our view of the strength of the appellant’s case would not warrant an order for enlargement of time, where it is necessary.

24 For these reasons the appeal was dismissed with costs.





I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kiefel, Marshall and Downes .



Associate:


Dated: 10 November 2004



Counsel for the Appellant: Mr A Krohn



Solicitor for the Appellant: Gandhi Associates International



Counsel for the First Respondent: Mr W Mosley



Solicitor for the First Respondent Australian Government Solicitor



Date of Hearing: 9 November 2004



Date of Order: 9 November 2004



Date of Publication of Reasons: 10 November 2004
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