Case: Associated Provincial Picture Homes Ltd v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223
Outcome: cited
Mr Estcourt QC for the appellant submitted in summary as follows: &#8226; the conclusion of the Tribunal that the appellant did not have a well-founded fear of persecution because: o he was only an apostate and not a Christian proslytizer o he had not criticised the Islamic Revolutionary government since he first went to live in the United States 25 years ago o he only reached the "lowly" rank of airman in the United States Navy and therefore he would not be a person the authorities in Iran would have any interest in punishing was " Wednesbury unreasonable" and both irrational and illogical &#8226; it was illogical in the extreme, perverse and manifestly wrong in the sense discussed by Young J in VWFP and VWFQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 231 to conclude that the Iranian authorities would examine the appellants Navy service records and satisfy themselves that they did not disclose that the appellant was any threat to Iran &#8226; the Tribunals' conclusion in relation to the assertion that the appellant "can inform them that he was never properly rewarded for his study efforts in the navy" and other quantitative aspects of the appellants United States Navy serve was capricious, perverse and disclose manifest error going to jurisdiction &#8226; it was not relevant how long the appellant served in the United States Navy, or the level of his rank, or whether he felt sufficiently rewarded or appreciated by the United States Navy to whether he would be of interest to the Iranian authorities. What would be of moment was the authorities' perception of the political conduct of an Iranian opponent of the current government who evaded military conscription in the service of his own country and fled to and joined the armed services of Iran's enemy &#8226; the Tribunal's unreasonable approach failed to appreciate and decide upon the full import of the evidence before it concerning the position as to Iran &#8226; given that the Tribunal found that the appellant would come to the attention of the authorities in Iran and that the legal sanction for apostasy is the death penalty, and given the appellants overall history, the chance of him suffering serious persecution was not one which could be discounted as "farfetched" "remote" or "insubstantial" &#8226; the Tribunal failed to take into account the very relevant considerations of arbitrary arrest, imprisonment of people solely on account of their beliefs, torture and ill-treatment of detainees, the refusal of Iran to adopt laws against torture and the role of "morality forces" in attacking opponents of the regime to determine whether the appellant (who has 21 years of residence in the United States and served in the United States Navy) has a well-founded fear of persecution &#8226; the Tribunal accepted the appellant's characterisation of the United States as Iran's "sworn enemy" &#8226; to have concluded otherwise than that the appellant had more than a "remote", "insubstantial" or "farfetched" chance of a threat to his liberty or physical harassment or ill-treatment at the hands of the Iranian authorities was so totally unreasonable that no reasonable Tribunal could arrive at such a conclusion and it is an irrational and illogical conclusion not based on any evidence or findings or inferences of fact supported by logical grounds. 18 Mr Bickford for the respondents submitted in summary as follows: &#8226; the grounds of review sought to be advanced by the appellant are not open on a matter of this nature and in any event, there is no basis for any one of the grounds sought to be advanced by the appellant &#8226; the scope of jurisdictional error is very limited and a matter can easily fall out of focus when one spends too much time analysing the Tribunals reasons &#8226; it is not finally settled whether or not a decision which is unreasonable in the sense explained in Associated Provincial Picture Homes Ltd v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 is amenable to review for jurisdictional error &#8226; however, there is clear Full Court authority that states that a lack of logic in a Tribunal's reasoning does not, of itself, give rise to an error of law or jurisdictional error: NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 &#8226; in any event, the decision of the Tribunal was not unreasonable in the Wednesbury sense or in the sense that it was so irrational or illogical and not based on findings or inferences of fact supported by logical grounds. Even if these grounds gave rise to jurisdictional error they are not made out in this case &#8226; the argument that a finding unsupported by evidence amounts to an illogical finding is not supported by authorities: VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 &#8226; the findings made by the Tribunal with respect to the appellant's United States navy service and how the Iranian authorities might view it were reasonably open to it and the Tribunal had regard to all the available evidence in forming its conclusions &#8226; the Tribunal clearly understood the test as to whether the combination of factors in the appellant's case (including his United States navy service) would give rise to a well-founded fear of persecution for a Convention reason. Further, the Tribunal stated the test correctly and applied the tests to the facts as found &#8226; it would be a wrong approach for this court, under the guise of attacking the Tribunal's reasons as being unreasonable or in some sense giving rise to jurisdictional error, to find that this court would not have reached the same conclusion: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 &#8226; the Tribunal applied the correct test with respect to whether there was a "real chance" of the appellant being persecuted and there is no basis for any contention to the contrary &#8226; the Tribunal dealt with the appellant's claims of persecution based on religion, and the Tribunal's findings that there was not a real chance that he faced persecution by reason of his religion in the reasonably foreseeable future was reasonably open on the available evidence. The Tribunal's findings in this regard were findings of fact and not reviewable by this Court &#8226; inevitably there will not be "perfect" evidence before the Tribunal in cases of this nature. The findings the Tribunal made were open to it on the evidence &#8226; even if the Tribunal's findings were against the evidence and the weight of the evidence, such a result does not give rise to an error of law &#8226; there is no basis for the assertion that the Tribunal failed to take into account relevant evidence. 19 It is not in dispute between the parties that: &#8226; the Court is entitled to set aside a purported decision of the Tribunal if the Tribunal has committed jurisdictional error &#8226; the scope of jurisdictional error is not finally settled &#8226; it is not finally settled whether or not a decision which is unreasonable in the sense explained in Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 is amenable to review for jurisdictional error &#8226; the appellant in this case has claimed a well-founded fear of persecution for a Convention reason. 20 At the hearing, Mr Estcourt QC for the appellant submitted that there were essentially three separate bases for the appellant's case, namely: 1. No evidence: If there is no evidence in the case of a critical step in the Tribunal's ultimate conclusion then that constitutes a jurisdictional error. The critical step in this case was in respect of the Tribunal concluding that, once the appellant went back to Iran and was intercepted and interrogated by the authorities, they would accept his explanation about his United States navy service. There was no material as to how the Iranian authorities might react to the appellant's navy service and that is jurisdictional error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 and re Minister for Immigration and Multicultural Affairs ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128. 2. " Wednesbury unreasonableness". The Tribunal's decision must be rational and logical and based on findings: Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223, SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231. 3. The state of satisfaction that there was no well founded fear of persecution was not formed reasonably on the material before the Tribunal: Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16. 34 In view of my decision with respect to evidence in this case, it is not strictly necessary for me to consider the alternative issues raised by the appellant with respect to Wednesbury unreasonableness and irrationality and want of logic of the Tribunal's decision. However, I note the findings of his Honour below that reasoning of the Tribunal was neither illogical nor irrational and, having reviewed the decision of the Tribunal, consider that there is no error in his Honour's findings in relation to these contentions. In any event, these grounds do not appear to support claims of jurisdictional defect in terms of Australian law. In particular, I note the decision of the Full Court in Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211 with respect to Wednesbury unreasonableness, and the decisions of the High Court in Bond 170 CLR (particularly per Mason CJ at 356 with whom, on this point, Brennan, Toohey and Gaudron JJ agreed) and the Full Court in VWST [2004] FCAFC 286 that want of logic does not form a valid basis of judicial review.