Illogical Finding of Conclusions From Facts Amounts To Legal Unreasonableness

In SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175, 9 December 2015, (see the case at this link) the Full Federal Court found that it was a jurisdictional error to be illogical in coming to conclusions about whether a person had a real chance of persecution. The significance of SZTAP is that the court had applied the notion of illogicality to making findings based on an analysis of facts. The court concluded that once illogicality was involved in that analysis then the conclusions amounted to legal unreasonableness. It is sometimes said in judgments that unreasonableness is limited to an exercise of discretion. Hence the court found that legal unreasonableness was not limited to an exercise of discretion. SZTAP shows that unreasonableness is not so limited.

The Refugee Review Tribunal made this startling finding (as set out in paragraph 32 of the reasons of Robertson & Kerr JJ):

As to his treatment by them if he returns to Udappu, it is difficult to establish how these officers might react. However, having regard to their past conduct I am satisfied that their overriding aim is simply to extort money from his mother and, in the absence of any claim that she proposes to stop making payments, I consider that situation will continue unchanged despite the [appellant] no longer being a child. There is not a real chance that the [appellant] will be abducted or otherwise seriously harmed by these men if he returns to Udappu.

Logan J concluded this was perverse. He said at 14 :

To reason, as the Tribunal did, at paragraph [51], that there is no real chance of abduction on return because the appellant’s mother will continue to make the payments demanded is, with all respect to the member constituting the Tribunal, perverse. The very essence of extortion, if successful, is that the threat made to the victim will not be carried into effect providing that the demand made is satisfied.

Roberson & Kerr JJ found that that conculsion by the tribunal was illogical. Here is how they came to that finding:

54.In our opinion, while we accept that there must be an objective basis for an applicant’s fear, as explained in Chan at 396 (per Dawson J), 406 (per Toohey J), at 412 (per Gaudron J) and 429 (per McHugh J), in the present case the Tribunal’s conclusion as to the lack of objective basis for the appellant’s fear was founded on the conclusion that the corrupt CID officers did not intend to detain or harm the appellant which in turn was founded on those officers having shown no interest in the appellant in the past: see the Tribunal’s reasons at [47].

55.We note that while there is no suggestion their conduct was authorised in that regard, the extortion demands were made by persons holding office as members of the CID in circumstances in which the Tribunal accepted, at [24], that corrupt officials may act with impunity to solicit bribes from persons fearful of drawing themselves to the attention of the security forces.

56.It is, in our view, illogical to found the conclusion that there was not an objective basis for the appellant’s fear on the absence of harm in the past, when the absence of harm was referable to the successful extortion of the payments, the payments being made to prevent the harm in question. The illogicality amounting to legal unreasonableness is that the past period of non-harm or non-interest in the appellant was co-extensive with the period when the appellant’s mother was acceding to the extortion by the payment of money.

57.We accept, of course, as explained by French CJ in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [30], that the requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.

58.Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 concerned the alleged irrationality or illogicality of the Tribunal rejecting corroborative evidence when it was convinced that a principal witness was fabricating a story, which was considered to be inherently implausible: see Gleeson CJ at [12] and McHugh and Gummow JJ at [49]. It was held that the determination by the Tribunal was not irrational or illogical as the appellant contended. Ground 2 of the present appeal does not involve irrationality or illogicality of that kind.

59.In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, the dispute concerned the adverse inferences which the Tribunal drew from its rejection of the account given by SZMDS of his personal history. The Tribunal rejected the claim of SZMDS to membership of a particular social group, being male homosexuals in Pakistan. The Tribunal concluded that SZMDS was not a homosexual and the primary judge held there were defects in the inferential reasoning to that conclusion which constituted jurisdictional error. This conclusion was, by majority, reversed: Heydon, Crennan and Bell JJ constituted the majority and Gummow A-CJ and Kiefel J dissented in the result. The majority held, at [78] and [131], that what was involved was an issue of jurisdictional fact upon which different minds might reach different conclusions. In this respect, Crennan and Bell JJ said, at [130]-[133]:

… Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. …

Was the Tribunal’s fact finding “illogical” or “irrational”?

Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal’s conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. …

However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. …

It is in this sense that we have addressed the question of illogicality and made the finding at [56] above.

60.It is not a matter of that species of reasonableness review which concentrates on the outcome of the exercise of power, but reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power: see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [47].

61.We are of the view that while the appellant’s mother was the direct subject of extortion, the harm threatened in the absence of payment was to her son and the actual harm threatened by the corrupt CID officers, if the payments they were extorting were to cease, was that the appellant would be abducted. There is no suggestion that that would not amount to ‘serious harm’ within Article 1A(2) of the Refugees Convention. Nor in our view could it be in dispute that, to the extent it existed, the vulnerability of the appellant and his mother to that extortion arose because of their membership of a social group, that is, it arose because the corrupt CID officers had identified them as family members of a person who was or who had had suspected links to the LTTE. It is on this, factual, basis that we would distinguish the observations of Burchett J, with whom O’Loughlin and RD Nicholson JJ agreed, in Ram at 569G that extortionists are simply extracting money from a suitable victim. In this respect we refer also to Perampalam at [16], per Burchett and Lee JJ as follows:

The Tribunal cited Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565, where Burchett J said (at 569), in a judgment with which O’Loughlin and R D Nicholson JJ agreed:

“Plainly, extortionists are not implementing a policy; they are simply extracting money from a suitable victim. Their forays are disinterestedly individual.”

But this was in the context (as appears from the same judgment at 567) of an express finding by the Tribunal that “the applicant has not satisfied me that the extortion was anything other than a criminal act, or that he was targeted for any reason other than he was known to have money”. Here, the Tribunal’s finding is the opposite: it says “there is no doubt that the LTTE approaches Tamil[s] for funding”. The additional fact that the particular Tamils approached are chosen “because of their perceived wealth” is no more legally relevant than the fact (in Paramananthan) that the security forces targeted, among Tamils, young males from Jaffna who might be thought more likely to be guerillas. Extortion directed at those members of a particular race from whom something might be extorted cannot be excluded from the concept of persecution within the Convention, and Ram does not suggest it can. On the evidence, it was plainly open to the Tribunal to conclude that the fanatical combatants in the LTTE saw it as the obligation of every Tamil to make sacrifices, willingly or by coercion, for Tamil Eelam. No doubt, it was for this reason the finding was made “that the LTTE approaches Tamil[s] for funding”. A motivation of this kind is sufficient for the purposes of the Convention. The words “persecuted for reasons of” look to the motives and attitudes of the persecutors (see Ram at 569), and if the LTTE practices extortion, with violence and threats of violence, against Tamils, the government being unable to provide protection, because the LTTE holds that Tamils must be coerced into supporting it, the terms of the Convention are satisfied.

This passage was also cited with approval by Finn and Dowsett JJ in Rajaratnam at [42], their Honours going on to say, at [46]:

… In the usual case of extortion the extorting party will be acting for a self-interested reason (ie to gain an advantage for himself or herself, or for another). In this sense, his or her interest in the person extorted can always be said to be personal. What needs to be recognised, though, is that the reason why the extorting party has that interest may or may not have foundation in a convention reason. The extorted party may have been chosen specifically as the target of extortion for a convention reason, or may have become the subject of extortion because of the known susceptibility of a vulnerable social group to which he or she belongs, that social group being identified by a convention criterion. Or, conversely, the person may have been selected simply because of his or her perceived personal capacity to provide the particular advantage sought and for no other reason or purpose.

62.In our opinion, this illogicality amounting to legal unreasonableness affects the conclusion of the Tribunal in relation to both the Convention-based claim and the claim for complementary protection.

63.Although the Tribunal expressly held that the corrupt officers’ threats towards the appellant were a bluff designed to elicit money from his mother, that conclusion is infected by the same reasoning process which we have found to be illogical at [56] above. So also, in our opinion, is the Tribunal’s conclusion at [51] that in the absence of any claim that the appellant’s mother proposed to stop making payments, the situation would continue unchanged despite the appellant no longer being a child.

64.For these reasons, in this respect jurisdictional error on the part of the Tribunal is made out and ground 2 succeeds.