Case: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110
Outcome: cited
His Honour is there referring to particular sections in the Migration Act 1958 which remain pertinent. Later in that same case, having referred with approval to observations made by Gibbs J (as he then was) in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 as to ways in which satisfaction-based decisions might be amenable to judicial review, Gummow J observed at page 654, para 137: This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. 12 Those remarks seem to me to be apposite in the circumstances of this case. There were findings of fact, in part, based on questions of credibility. They seem to me to be findings that were reasonably open. That is not to say that another person hearing that same evidence might not have come to a different view. Whilst I can well understand that the Appellant might regard the findings made as indicative of a "harsh approach," in terms of legal principle, if those findings were reasonably open, it was incumbent on the part of the Federal Magistrate and is incumbent upon me to respect those findings and not interfere with them. 13 Ground 2 in the notice of appeal appears to conflate what might be described as a shorthand description of a test which informs an assessment as to whether a fear of persecution for a Convention reason is "well-founded," with a standard of proof that applies in civil proceedings in a court. The Tribunal though was not a court, but rather part of the Executive Government of the Commonwealth charged with reviewing on the merits a decision of another official of the Executive Government, namely the Minister's delegate. 14 In that review and in relation to the engendering of the "satisfaction" for which the statute made provision, it was obviously in the interest of a visa applicant to introduce material, which would engender the requisite "satisfaction." In this case, as it happened, the male Appellant, who was the person who gave evidence before the Tribunal, did not engender through that evidence the requisite satisfaction. That, though, as I have said, was a product of credibility findings that were in my opinion, reasonably open for reasons that were not irrational or illogical on the part of the Tribunal. 15 What followed from the findings of fact that the Tribunal came to make, was an absence of satisfaction that the persecution claimed by the Appellants was for a Convention reason. The consequential finding that there was no entitlement to a protection visa flowed automatically from this finding of a lack of satisfaction. 16 Ground 3 in the notice of appeal alleges that the Tribunal used particular information without affording opportunity to comment, contrary to s 424A of the Migration Act . As was pointed out on behalf of the Minister in submissions, an immediate difficulty with this ground, which was not cured in oral submissions on behalf of the Appellants, was an absence of particularisation of just what the "information" used by the Tribunal was.