Minister for Immigration and Citizenship v SZMDS  HCA 16
Majority: Crennan and Bell JJ (Heydon J agreeing).
The Commonwealth appealed a decision of the Federal Court which held that irrationality or illogicality in a reasoning process was a jurisdictional error.
Held – The Commonwealth's appeal was allowed; decision of Federal Court set aside. The decision was not irrational or illogical.
Crennan and Bell JJ – The decision was not sufficiently irrational or illogical to constitute a jurisdictional error. Irrationality or illogicality will amount to a jurisdictional error in relation to a subjective-precondition if it leads to the point of satisfaction that is required. Reasoning will only be sufficiently irrational or illogical if no logical or rational person could have come to the same view.
Heydon J – the decision was not illogical or irrational; consequently, there was no need to consider whether such flawed reasoning might amount to a jurisdictional error
Gummow ACJ and Keifel J – the decision making process was illogical. That illogicality constituted a jurisdictional error.
The respondent was a Pakistani national who, after entering Australia on a visitor visa, soon applied for a protection visa. He sought protection on the basis that he would be persecuted if he returned to Pakistan because of, as he put it, his ‘belief in and practice of homosexuality’.
After his application was rejected by the ministerial delegate the respondent sought merits review in the Refugee Review Tribunal (‘RRT’). The RRT also concluded that the respondent was not a homosexual and consequently was not entitled to protection. He sought judicial review of the RRT’s decision in the Federal Magistrates Court; that appeal was dismissed. However, a further appeal to the Federal Court was allowed. Moore J held that the RRT had fallen into jurisdictional error by forming its conclusion on the respondent’s sexuality through an illogical process of reasoning.
The Minister appealed to the High Court, arguing two points, which the Solicitor General called the issue of fact and the broader issue of principle. The Minister first argued that the RRT had not in fact relied on illogical or irrational reasoning. However, the more important argument was that illogicality or irrationality in a reasoning process does not, of itself, amount to a jurisdictional error. There was a considerable line of authority from the Federal Court, which indicated that illogicality or irrationality in reasoning processes did indeed constitute a jurisdictional error.
Crennan and Bell JJ, who Heydon J agreed with, found that the RRT’s decision was not sufficiently illogical or irrational to create a jurisdictional error. Their Honours held that where a power is conditioned on a decision maker’s ‘satisfaction’, illogicality or irrationality in the decision maker’s reasoning process will only constitute a jurisdictional error if ‘no rational or logical decision maker could arrive’ at it from the same evidence. Gummow ACJ and Keiefel J dissented, finding both that the decision making process was illogical, and that the illogicality amounted to jurisdictional error.
Statutory Framework and Jurisdiction
The statutory framework of the Migration Act 1958 (Cth) will be well known to most practitioners. Section 36(2)(a) requires that for a person to be eligible for a protection visa they must be owed protection obligations by Australia under the Refugees Convention. Section 65 then requires the grant of a visa if the Minister is ‘satisfied’ that this criterion, amongst others, is satisfied. It was the RRT’s reasoning in reaching this satisfaction that was challenged as illogical or irrational. Due to the effect of the privative clause under s 474 of the Migration Act, which prevents most avenues of judicial review, the proceedings were brought under the High Court’s s 75(v) jurisdiction under the Constitution.
Alleged Irrationality / Illogicality
The respondent gave evidence through a translator before both the Minister’s delegate and the RRT. His uncorroborated evidence was that he had a wife and four children back in Pakistan. He claimed to have commenced a complicated three-way relationship with two other men while working abroad in the UAE. During this relationship he travelled both back to Pakistan a number of times and to the UK. After returning from the UK there was a violent breakdown between two of the three men in the relationship, which forced the respondent to go into hiding in the UAE. Once he had obtained a travel visa to Australia he made another visit to Pakistan for three weeks before travelling to Australia and making a claim for protection.
The RRT relied on two aspects of the respondent’s claim in concluding that he was not homosexual, and consequently not entitled to protection. The first was that he chose to visit Pakistan after obtaining a visitor visa for Australia. The second was the failure to make a claim for protection whilst in the UK. The respondent claimed that neither of these two factors could rationally support the inference that he was not a homosexual. He had explained both decisions in his evidence. First, he did not make a claim while in the UK, because at that point ‘he was in a good relationship’ and ‘at the time did not have any problems’. Further, he explained that he had returned to Pakistan to make a final visit to see his children, in the knowledge that he would not be returning.
Crennan and Bell JJ, with whom Heydon J agreed, determined that the reliance on these factors did not cause the conclusion to be irrational or illogical. On this basis Heydon J declined to consider whether illogicality or irrationality were jurisdictional errors as a matter of law.
Crennan and Bell JJ considered the competing submissions at greater length. Their Honours accepted that the requirement for a decision-maker to be subjectively ‘satisfied’ was a jurisdictional fact, and consequently was open to review. They acknowledged the range of long established requirements that any subjective pre-condition must satisfy. Specifically, a decision-maker will not be sufficiently satisfied where their decision is ‘clearly unjust’, ‘arbitrary’, ‘capricious’, or ‘Wednesbury unreasonable’. Further, they accepted that irrationality or illogicality will only constitute a jurisdictional error if it occurs at the point of satisfaction.
However, their Honours also noted the uncertainty of determining when reasoning is irrational or illogical. They noted that these categorisations might simply reflect a reviewing court’s view that it would have reached an alternative decision. Their Honours concluded that irrationality or illogicality would not constitute jurisdictional error unless the decision could not be reached by any rational or logical decision maker. This was expressed in a number of alternative formulations, including:
- where only one conclusion is open on the evidence and that conclusion is not reached;
- the decision that the decision-maker came to was simply not open;
- there is no logical connection between the evidence and the inferences.
Regarding the RRT’s original decision, their Honours held that a rational or logical decision maker could have come to the decision reached. They held that the Federal Court’s conclusion that the respondent’s version of events was plausible did not make the RRT’s decision sufficiently unreasonable to constitute a jurisdictional error.
Gummow ACJ and Kiefel J, writing a joint dissenting judgment, held that the reasoning process that led to the RRT’s lack of satisfaction was illogical, and that this illogicality constituted a jurisdictional error. They held that the reasons relied on by the RRT were irrational because they assumed that the respondent would be discovered and persecuted simply by returning to his home country. As his homosexuality was unknown back in Pakistan there was no basis to believe it would be discovered on a short trip, and thus it did not provide any basis to disbelieve his claims.
Regarding the concept of irrationality or illogicality in law, the logic of their Honours’ decision is difficult to follow. They were at pains to emphasise that their approach does not infringe the separation of powers by intruding upon the merits of the RRT’s decision. Further, they stressed that their approach did not adopt the more substantive approaches to judicial review accepted in the UK and Canada.
Their Honours emphasised that the requirement that the subjective state of satisfaction required by s 65 be reached rationally and logically does not traverse into merits review. This is because rationality in reaching the state of satisfaction is only required where that state is a jurisdictional fact. However, there was no explanation of when a state of subjective satisfaction will be a jurisdictional fact, or more broadly, how the distinction between jurisdictional and non-jurisdictional fact in this context is to be drawn.
Their Honours went on to observe that although previous cases of S20/2002 and SGLB, held that irrational or illogical decisions may constitute jurisdictional error, in those cases the instant errors were not held to be jurisdictional. This, it was said reinforces the idea that intervention for irrationality should not be granted lightly. The approach of Gummow ACJ and Kiefel J appears to accept that a level of irrationality lower than the Wednesbury standard adopted by Crennan and Bell JJ, will suffice to make an error jurisdictional. However, exactly where that standard lies is also less clear.
The problem with the approach of Gummow ACJ and Kiefel J is that it leaves too many questions unanswered. Most pertinently when will a subjective pre-condition to power be a jurisdictional fact, and when will it be non-jurisdictional? Moreover, what is meant by the notion of irrationality or illogicality? Instinctively one suspects that such reasoning flaws must occur along a continuum. In a case like the present the real issue is the extent to which the respondent’s travel behaviour and failure to claim asylum were relevant in disproving his claim of being homosexual. The answer, to my mind, is that this behaviour is clearly relevant, but at the same time can only provide very slight probative value. In fact, I would go so far as to say that no reasonably judicious person could use that evidence as the basis to conclude that the respondent was lying about his history: both the RRT and the majority of the High Court clearly do not agree.
However, when the issue is framed as one of rationality or logic, what is really being said is that the RRT members drew inferences from the evidence, which it could not support. This is because there were a myriad of reasonable alternative explanations that were offered by the respondent and ignored by the Tribunal. In such a case the issue of logic or rationality is not one of discrete alternatives; it is a matter of degree. Crennan and Bell JJ’s decision identifies this problem, and as a result effectively retreats to a Wednesbury standard. While Gummow ACJ and Kiefel J identify that courts should not intervene ‘lightly’ because of irrationality, they do not explain what the threshold level of rationality should be. Consequently, their hesitance to intervene begins to look more like a discretion than any rule-based principle.
The regrettable outcome of using the Wednesbury standard is that it permits results that are patently unfair, such as the present one. This is because it permits a decision-maker to weigh evidence and draw inferences in any way they see fit, provided that their conclusion is not so irrational that no rational person could have reached it. This obviously provides plentiful room for woefully sub-optimal decision-making. In the case of executive tribunals, deciding matters that are highly political, Heydon J’s recent comments about specialist courts might be apt to describe the way some executive tribunals interpret and weigh evidence.
However, at the same time if any substance is to be maintained to the concept of jurisdictional error as a tool to ensure that tribunals stay within the decision-making powers granted to them by parliament, then descent beyond a Wednesbury reasonableness standard is difficult to justify.