Case: SZAPC v Minister for Immigration &amp; Multicultural Affair [2005] FCA 995
Outcome: cited
As to the first matter the appellant pointed to as infecting the Tribunal's credit finding with respect to the appellant the rejection of his account that the police could not find him because he lived 30 kilometres away from the address which he had given them as being implausible the appellant submitted that there was no probative material to support the Tribunal's finding and that this involved jurisdictional error. It was the alleged capricious reasoning which infected the credit finding and the credit finding was critical to the outcome. Reliance was placed on what was said by Gummow and Hayne JJ in the High Court in Minister for Immigration &amp; Multicultural Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [38] : 'The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act. However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error.' And by Madgwick J in this Court in SZAPC v Minister for Immigration &amp; Multicultural Affair [2005] FCA 995 where, after referring to the passage from their Honours' reasons in SGLB recited above, said at [57], [58]: 'Thus it seems to me that the position arrived at in the High Court may be summarized in the following way: 1. A 'no evidence' attack will only suffice as such if it can be said that there is an actual 'absence of any foundation in fact for the fulfilment of the conditions upon which, in law, the existence of a power depends', that is, if there is no evidence to support a finding of a jurisdictional fact. 2. Nevertheless, there are constitutional minimum standards of judicial review and the powers of decision-makers such as the Tribunal are not to be exercised capriciously not 'according to humour', but according to law. 3. It is a critical legal requirement that the determination should not be able to be characterized as 'irrational, illogical and not based on findings or inferences of fact supported by logical grounds'. My own shorthand paraphrase of this is that, in that minimal sense, the determination must be a rational one. 4. If that critical legal requirement is not met, there will be jurisdictional error sufficient to warrant the issue of a constitutional writ. To my mind it is plain that, if an important finding has been made without evidence to support it, that circumstance may be relevant to the question of whether the determination exhibits such rationality. A fortiori, when a crucial finding to the determination has been made without evidence to support it, there will be a very real question whether, to that extent, the determination is not objectionably arbitrary.' 14 His Honour below dealt with this submission at [20] [22] as follows: 'The Court rejects the claims that the reasoning of the Tribunal was not supported by logical grounds; that the issue was irrelevant, and that the finding was capricious. The determination has a rational basis. The test in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 that on a critical issue the Tribunal do more than reject evidence because it is implausible, was met as the Tribunal undertook a rational examination of the material before it. Also, the test in SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 was complied with. It cannot be said that the Tribunal's decision is arbitrary; its finding was made on logical grounds and on the material before it. The decision in SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 was referred to, in particular the passage in [59] that refers to the Tribunal's "bare, unsupported assertions that objective facts...were 'somewhat implausible'". In the current case, the finding of the Tribunal was properly open to it on the material before it. It did not reach its conclusion on bare unsupported assertions ... The decision in Tran v Minister for Immigration and Multicultural Affairs [2006] FCA 1229 was referred to, in particular paragraph [17] and the finding that "[t]he tribunal did not express any finding or reason for that ultimate conclusion, except that it did not find the evidence compelling." In the present case, the Tribunal set out [its] reasoning process leading to its ultimate conclusion. In Tran , Justice Rares found what amounts to Wednesbury unreasonableness. No such finding could be made here.'