Case: Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59
Outcome: cited
The immediate obstacle confronting this ground of appeal is that the Tribunal is the finder of fact. Mere errors in fact-finding will not constitute an error of law, let alone a jurisdictional error: see Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 per Brennan J at 35-36; and Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 (" Appellant S106/2002 ") per Gleeson CJ at 61 62 [5] [9] and per Kirby J at 85 86 [116] [120]. Even if a factual finding is illogical or unsupported by evidence, it would only be capable of constituting a jurisdictional error if it constituted a critical step in the Tribunal's ultimate conclusion or demonstrated that there had been only a purported, rather than a real, exercise of power: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 per Mason CJ at 355-357; SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 per Mansfield, Selway and Bennett JJ at 407-408 [19] [20]; and NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 (" NACB ") at [29]. In NACB , the Full Court (Tamberlin, Emmett and Weinberg JJ) affirmed a line of authorities to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error, or necessarily indicate that there had only been a purported exercise of power. In W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 at [35] , Lee and Carr JJ, with whom French J agreed, said that even though the Tribunal's reasoning could be regarded as illogical, this did not in itself show a ground of review although it may on occasion manifest other reviewable error. In VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [18] , the Full Court (Kiefel, Marshall and Dowsett JJ) reviewed the authorities and concluded that want of logic in the reasons of the Tribunal is not an available ground of review. 78 The appellant submitted that the decision in Appellant S106/2002 shows that McHugh and Gummow JJ (at 67 and 71) were prepared to consider a challenge to a Tribunal decision based on the grounds that it was illogical, irrational or lacking a basis in findings or inferences of fact. The first of these passages merely describes the argument and is purely introductory. In the second passage, their Honours were directing themselves to a case where the decision itself was illogical or irrational; not a case where particular findings of fact or findings about credibility are impugned as illogical or lacking in probative support. 79 Far from assisting the appellant, the decision in Appellant S106/2002 illustrates the difficulties of contending that the Tribunal's evaluation of the credibility of a witness, or the plausibility of particular pieces of evidence, involved jurisdictional error. The essence of the complaint in Appellant S106/2002 was that the Tribunal failed to consider the evidence as a whole, but first considered and disbelieved the evidence of the applicant without taking account of corroborating evidence, and then considered and rejected the corroboration because of the rejection of the applicant's evidence. Gleeson CJ said at 63 [12]-[13]: "In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant's story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness. Upon analysis, the complaint is that the Tribunal member did not have regard to the whole of the evidence before deciding whether she believed the applicant/appellant, and did not properly assess the significance of the evidence of the corroborating witness. I am not persuaded that this criticism is justified." See also McHugh and Gummow JJ at 70 [49] and 71 [51] [52]. 80 Here, the statements by the Tribunal which are attacked as illogical form part of the Tribunal's overall assessment of the appellant's evidence, including her credibility and the plausibility of her claims to have a well-founded fear of persecution. That assessment was supported by other considerations which are not impugned as illogical, such as the Tribunal's reference to the appellant's vague and unconvincing identification of those who threatened or harassed her as right wing militants and/or religious extremists. 81 Hartnett FM concluded that none of the impugned findings was illogical, or indicated that the Tribunal had failed to properly exercise its jurisdiction. As Gleeson CJ pointed out in Appellant S106/2002 , the description of reasoning as illogical or irrational may merely be an emphatic way of expressing disagreement with it. It is not enough that another Tribunal might not have made the impugned findings, or attached the same weight to them. As the Full Court (Heerey, Sundberg and Crennan JJ) said in NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 at [27] , opinions can vary about what is inherently improbable or unacceptable as evidence of the fact, or what evidence makes sense, that is whether evidence is probative in relation to a particular fact. In the absence of perversity or manifest error, sufficient in each case to give rise to jurisdictional error, the Court cannot intervene.