Case: VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286
Outcome: followed
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. 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.