Minister for Immigration and Citizenship v SZMDS

• Jurisdiction: Australia Federal only
• Judge: Gummow ACJ,Kiefel J.,Heydon J.,Crennan,Bell JJ.
• Judgment Date: 26 May 2010
• Neutral Citation: 2010-0526 HCA A,[2010] HCA 16
• Court: High Court
• Docket Number: S193/2009
• Date: 26 May 2010

[2010] HCA 16

HIGH COURT OF AUSTRALIA

Gummow ACJ, Heydon, Crennan, Kiefel and Bell JJ

S193/2009

Minister for Immigration and Citizenship

Appellant

and

SZMDS & Anor

Respondents

Representation

S J Gageler SC Solicitor-General of the Commonwealth of Australia with G T Johnson for the appellant (instructed by DLA Phillips Fox Lawyers)

T A Game SC with T Baw for the first respondent (instructed by Sarom Solicitors)

Submitting appearance for the second respondent

Migration Act 1958 (Cth), ss 36, 65, 430(1)(b).

Minister for Immigration and Citizenship v SZMDS

Immigration — Refugees — Review by Refugee Review Tribunal — Where respondent applied for protection visa on ground of fear of persecution in Pakistan because of claimed homosexuality — Requirement of satisfaction of state of facts — Where protection visa refused on grounds that decision maker not satisfied respondent's fear of returning to Pakistan well founded — Whether such findings involved findings of jurisdictional fact — Whether illogicality or irrationality in a finding of jurisdictional fact — Whether jurisdictional error.

Words and phrases — ‘illogicality’, ‘irrationality’, ‘jurisdictional error’, ‘satisfied’.

ORDER

1. The appeal be allowed.

2. Orders 3, 4 and 5 made by the Federal Court of Australia on 10 March 2009 be set aside.

3. In place of those orders:

(a) the appeal to the Federal Court of Australia be dismissed; and

(b) Order 2 made by the Federal Magistrates Court of Australia on 8 July 2008 be set aside.

4. The appellant pay the reasonable costs of the first respondent of the appeal to this Court.

1 Gummow ACJ and Kiefel J. A criterion for the issue of a protection visa under the Migration Act 1958 (Cth) (‘the Act’) is that the applicant be a non-citizen of Australia to whom the Minister ‘is satisfied’ that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Section 36(2)(a) of the Act so provides 1. If the Minister ‘is satisfied’ that this and other criteria ‘have been satisfied’ then the Minister ‘is to grant the visa’; if ‘not satisfied’, then the visa must be refused (s 65(1)).

2 The term ‘satisfy’ has various shades of meaning. Two of them are involved in the collocation presented by ss 36 and 65 of the Act. One is that the applicant for a protection visa answers or meets the requirement or condition that Australia has protection obligations to the applicant. The second is that the decision maker accepts or is content that the applicant answers or meets that requirement or condition.

3 Upon review by the Refugee Review Tribunal (‘the RRT’) of a refusal by the Minister (or the delegate of the Minister), the RRT exercises all the powers and discretions conferred by the Act upon the Minister (s 415(1)).

4 The reiteration in ss 36 and 65 of the Act of the term ‘satisfied’ is significant for the issues on this appeal by the Minister from the decision of the Federal Court ( Moore J) 2. The Federal Court allowed an appeal from the Federal Magistrates Court (Scarlett FM) 3 and quashed the decision of the RRT (the second respondent). Moore J held that the RRT had fallen into jurisdictional error because its determination that the first respondent was not a refugee was based on illogical or irrational findings or inferences of fact 4 and remitted the matter to the RRT to be heard and determined according to law. The RRT had affirmed the decision of a delegate of the Minister to refuse the grant of a protection visa to the first respondent. In this Court the RRT entered a submitting appearance.

The avenue of judicial review

5 It is important for an understanding of the issues in this case to appreciate that it does not arise under one of the systems of review of administrative decisions which are established by laws of the Commonwealth and under which

the grounds of review are not limited to those involving jurisdictional error. In particular, the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’) includes as grounds of review that the decision ‘involved an error of law’ (s 5(1)(f)) and that there was no evidence or other material to justify the decision (ss 5(1)(h) and 5(3)). However, the ADJR Act does not apply to the class of decisions with which this case is concerned 5.

6 This was not always so. Important decisions of this Court, including Chan v Minister for Immigration and Ethnic Affairs6 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang7, were given in appeals where the jurisdiction of the Federal Court was conferred by the ADJR Act. In these cases the grounds of review principally in contention were that the decision ‘involved an error of law’ (ADJR Act, s 5(1)(f)) 8, or was so unreasonable that no reasonable person could have exercised the power (ss 5(1)(e) and 5(2)(g)) 9. The broader focus of the ADJR Act meant that on the one hand the Court was not concerned with the finding of jurisdictional facts and on the other there was an apprehension that an overbroad review of fact-finding would lead to impermissible ‘merits review’.

7 As will appear, the only avenue of judicial review in the present case was that rooted in s 75(v) of the Constitution itself and that required jurisdictional error to quash the administrative decision in question. This is because the privative clause provision found in s 474 of the Act, as interpreted in Plaintiff S157/2002 v The Commonwealth10, was ineffective to exclude judicial review by the Federal Magistrates Court and on appeal to the Federal Court on the ground of jurisdictional error.

The facts

8 The first respondent is a citizen of Pakistan, born there in 1965. He is a Sunni Muslim. His first language is Urdu and he gave evidence before the RRT through an interpreter. On 3 July 2007 he arrived in Australia on a visitor visa valid for three months and on 16 August lodged his application for a protection

visa. In that application he said that he sought a protection visa ‘on the basis of my [belief] and practice of homosexuality’.

9 That application presented several issues respecting the Convention definition of refugee. One was whether the first respondent was a member of ‘a particular social group’, another was whether, if so, he had a ‘well-founded fear’ of persecution for reason of membership of that social group. There had to be both a state of mind, the fear of persecution, and a well-founded basis, in an objective sense, for that fear.

10 None of this is controversial and the RRT recognised the existence of these issues. The dispute concerns the manner in which the RRT dealt, or failed to deal, with them.

11 The RRT held that it did ‘not accept that the [first respondent] will engage in [homosexual activities] or intercourse in the future, and therefore [it did not accept] that he will face persecution due to his membership of a particular social group (being a homosexual), whether actual or perceived’. The RRT concluded that there was no real chance that the first respondent would face persecution due to any Convention reason if he were to return to Pakistan now or in the reasonably foreseeable future. Accordingly, the RRT decided that it was satisfied that the first respondent did not satisfy the criterion for the issue of a protection visa.

12 In essence, the RRT appears to have accepted that male homosexuals in Pakistan comprised a particular social group 11, but to have rejected the claim of the first respondent to membership of that group and thus his claim of a well-founded fear of persecution.

13 The dispute concerns the adverse inferences which the RRT drew from its rejection of the account given by the first respondent of his personal history. These inferences led the RRT to the conclusion that he would not act in a certain way in the future and was not a member of the relevant social group. From this conclusion the RRT derived satisfaction that the first respondent was not a person to whom Australia owed protection obligations.

14 The account given by the first respondent of his personal history was summarised by Moore J as follows 12:

‘In 1991 he married his wife, and had four children from that relationship. In 1995 he travelled from Pakistan to the United Arab Emirates (UAE) where he worked in a factory. He returned to Pakistan in 1998. He remained in Pakistan until 2004 when he returned to the UAE. He finally left the UAE in July 2007 when he travelled to Australia. During the period October 2005 to July 2007 he developed an attraction to members of the same sex. In July 2006 [while in the UAE] he commenced a homosexual relationship with a man called Mr R. By the end of 2006 they were living together. At some point the applicant and Mr R commenced a sexual relationship with a third person, Mr H. Mr R had earlier been in a sexual relationship with Mr H (who was Mr R's boss). The applicant travelled to the United Kingdom in October 2006, returning to the UAE in December 2006. While in the UK he did not apply for a protection visa. In January 2007 the applicant discovered that Mr H was addicted to illicit drugs and was having unprotected sex with others. In March 2007 the applicant spoke to Mr H about this matter and Mr H became very angry and the applicant was bashed and threatened. The applicant and Mr R ran away from Mr H and went into hiding. In May 2007 the applicant returned briefly to Pakistan, and left again in June 2007 to return to the UAE. Shortly after, he travelled to Australia.’

15 As Moore J noted, it was central to the reasoning of the RRT that the first respondent was not a homosexual 13. Before turning to consider what his Honour held were the defects, fatal to the exercise by the RRT of its jurisdiction, in the inferential reasoning to that conclusion, something should be said of the importance for this case of...