SZBYR and Anor v Minister for Immigration and Citizenship and Anor
[2007] HCA 26(2007) 235 ALR 609
(Decision by: Kirby J)
SZBYR and Anor
v Minister for Immigration and Citizenship and Anor
Judges:
Gleeson CJ
Gummow J
Kirby JHayne J
Callinan J
Heydon J
Crennan J
Judgment date: 13 June 2007
Canberra
Decision by:
Kirby J
[31] This is an appeal from the Federal Court of Australia. [22] I agree in the order proposed in the reasons of Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ (the joint reasons). [23] The appeal must be dismissed.
[32] However, I would support the order solely on the ground explained in the concluding part of the joint reasons. [24] In my opinion, the appeal should be rejected, and relief denied, on the basis of the discretionary arguments advanced by the minister in his notice of contention in this court. [25] I would reserve my opinion on the many issues raised concerning the construction of s 424A of the Migration Act 1958 (Cth) (the Act).
[33] This is an area of the law where there is a multitude of decisional authority and a proliferation of dicta. Indeed, upon one view, the problem that arose in the present proceedings derived from comments made by the Refugee Review Tribunal (the tribunal), in its reasons for decision, that were unnecessary to resolve the matter.
[34] From first to last, these proceedings were highly fact-specific. There was at all times a consistent, available and legally unimpeachable reason for affirming the decision under review, adverse to the appellants. Any controversy arising out of s 424A was therefore immaterial to the outcome. [26] In this respect, the appeal was distinguishable from the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs. [27] This court should say so. We should not burden this field of law with more obiter dicta unnecessary to the disposition.
The facts
[35] The general nature of the applications brought by SZBYR and SZBYS [28] (the appellants) for protection visas as "refugees" under the Act [29] is set out in the joint reasons. [30] Inevitably, the facts were more complex, and detailed, than the summary provided there. But the essence of what happened is sufficiently stated.
[36] To be entitled to protection visas, the appellants, who are husband and wife and both nationals of India, were obliged to bring themselves within the requirements accepted by Australia pursuant to the Convention, as given effect by Australian law. [31] This necessitated the appellants proving that: [32]
... [O]wing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion [they were] outside the country of [their] nationality and ... unable or, owing to such fear ... unwilling to avail [themselves] of the protection of that country ...
[37] The appellants sought to bring themselves within the requirement of "persecution" by proving harassment and unlawful criminal prosecutions for serious crimes, which the family of the male appellant's former wife, Salima, had allegedly instigated. [33] They sought to demonstrate a "well-founded fear" by showing "reasons" of "religion" or "membership of a particular social group". They did this by relying on the religious and social differences between the male appellant and his former wife's family. The female appellant's claim was derivative from that of her husband, the male appellant.
[38] The appellants and the family of the male appellant's former wife were all Muslims. However, both of the appellants were followers of the Aga Khan, known as Ismaili Muslims. [34] Country evidence adduced before the tribunal affirmed that India is a secular state whose Constitution provides for freedom of religion. [35] Whilst tension between Muslims and Hindus has posed "a challenge to the secular foundations of the State", and problems can arise, at state and local levels, as to the level of respect for religious freedom, the country information contained "no suggestion" that "followers of the Aga Khan are subjected to persecution by the authorities or the community at large".
[39] In dealing with the appellants' request for protection visas, the decision-makers below (as is usual) described the provisions of the Convention and various decisions concerning its basic requirements. They also recounted various aspects of the appellants' claims concerning the circumstances of their lives in India before their arrival in Australia in October 2002. There were doubts and contests over particular aspects of this history. Yet, as I shall show, at every level of decision-making, there was a consistent, simple reason which was fatal to the entitlement of the appellants to protection under the Convention. This was the conclusion that they did not have a well-founded fear of persecution for a Convention reason. [36] That is, the "reasons" for any "fear of persecution" on the part of the appellants did not include "religion" or "membership of a particular social group", as alleged, but merely concerned a private quarrel animated by hostility that existed between the male appellant and his former wife's family.
The decisional record
[40] The minister's delegate: That this was the decisive reason for the decisions at every level of decision-making is clear from a review of the record. It begins with the delegate of the minister [37] making the primary decision refusing protection visas to the appellants. The delegate concluded that the "fear of persecution on return to India is not for a Convention ground(s)". The delegate said:
The [male appellant's] difficulties, which arose as a result of his relationship with a woman from a different Muslim sect, [are] a private matter which falls outside the scope of the Convention. His decision to continue the relationship, in the face of repeated warnings and threats from the woman's family, is the essential and significant reason for the alleged mistreatment he suffered, rather than any Convention reason(s).
The [male appellant's] fear of persecution if he returns is not for a Convention ground(s) but because of a personal and longstanding conflict between the [male appellant] and his ex-wife's family over their relationship.
[41] Refugee Review Tribunal: The reason advanced by the delegate unsurprisingly became the focus of the review by the tribunal, which the appellants promptly initiated.
[42] The tribunal set out, at some length, the male appellant's evidence about harassment, arrest and hostility in India as a result, he claimed, of the antagonism of his former wife's family, both in her lifetime and after her alleged suicide. The tribunal member acknowledged her obligation to consider whether the appellants had a "well-founded fear of persecution for a Convention reason". She noted their statement that they feared harm "including imprisonment and possibly death arising from the death of the [male appellant's] first wife". The tribunal member made various critical observations concerning the male appellant's credibility. Amongst other things, she said:
... [T]here are a number of aspects about the evidence before me which I find troubling.
... the [male appellant] did not impress me as a reliable witness. I found the modifications and refinement between his written claims and his oral evidence, within his oral evidence and the inconsistency with that of his wife's oral evidence as to when he was actually arrested in 2001 to be unsatisfactory.
...
... [There was] a willingness by the [male appellant] to tailor his evidence in a manner which suited his purposes rather than a willingness to be frank.
... the evidence before me as to the precise character of the 2001 charge laid against the [appellants] is vague.
[43] However, these statements were then followed by the tribunal's conclusion that leads to its disposition:
The [appellants] contend that the harm they fear is related to their religion. However, apart from a single reference made by Salima's brother to religion as being a factor in why the family disapproved of the relationship there is nothing in the evidence before me as to the [appellants'] actual experiences with Salima's family which provides any support to this contention.
...
Taking into account all the evidence before me, I am satisfied that the [appellants] are involved, or have been involved, in a personal dispute and there is no Convention nexus ...
I do not accept the [appellants'] contention that religion or social status were in any way or at all factors in the harm they fear ...
... I find that the motive for the harm which the [appellants] fear is because they have been ascribed with responsibility for a suicide. I further find that the harm which the [appellants] fear in the future arises out of this personal matter and is not Convention related.
Accordingly I find that the harm the [male appellant] fears is from private individuals settling a private dispute and as such it does not constitute persecution of a kind which can attract protection under the Refugees Convention.
[44] Federal Magistrates Court: When an application for judicial review was made to the Federal Magistrates Court, Raphael FM, after recounting or extracting passages from the tribunal's reasons, rejected the application for review on the basis that, essentially, it amounted to an endeavour to relitigate the factual conclusions of the tribunal. [38] However, he went on to explain why he had refused the appellants an adjournment of the hearing following the late provision of the minister's submissions. He said: [39]
[9] ... [T]he granting of an adjournment would be of little utility because it seemed to me so clear from the decision of the Tribunal that the reason for refusal of the visa was the failure of the [appellants'] claim to have a Convention nexus, that whatever might be said in support of other technical breaches of the Tribunal's duty not to fall into jurisdictional error, it would not outweigh that one important point which ... is the real matter that a court must consider.
[45] Federal Court of Australia: The appellants' appeal to the Federal Court specifically raised a ground complaining that the tribunal had exceeded its jurisdiction in failing to conform to s 424A and in denying the appellants procedural fairness. The appellants were not legally represented in that court.
[46] Part of the Federal Court's reasons was addressed to the failure of the Federal Magistrate to grant the appellants the adjournment which they had sought. [40] This is not a matter pursued in this court. In dealing with the appellants' complaint that the tribunal had misunderstood or misapplied the Convention criteria, Madgwick J quoted the passage from the tribunal's reasons, part of which is set out above, characterising the appellants' conflicts in India as "a personal dispute [with] no Convention nexus". [41] In default of an explanation of how this involved error or how the Federal Magistrate had failed to discern any such error in that passage, Madgwick J concluded: "the case simply appears to be devoid of legal merit". [42]
[47] From the foregoing it follows that the appellants' appeal to this court is singularly ill-suited to present an examination of the application to the facts of s 424A. To the extent that s 424A was considered, both by the Federal Magistrate and by the Federal Court, attention appears to have been confined to the suggested relevance of s 424A to the discretionary refusal to grant an adjournment, an issue not now in contention.
[48] I appreciate that, where parties are unrepresented in the courts below, and special leave is granted to appeal to this court, formalistic impediments to the argument of legal questions essential to the lawful determination of the matter should not stand in the way of their consideration. On the other hand, where this court does not have well-focused reasons of the intermediate courts on such questions, addressed to the facts of the instant case, there is special reason for caution before launching into an elaboration of new issues of general significance and frequent application where that course is not legally essential.
Discretionary dismissal of the application
[49] Basis of the jurisdiction: The Act does not provide for a full merits appeal from the tribunal. Nor is such an appeal afforded by any other law. The appellants' application to the Federal Magistrates Court invoked the jurisdiction of that court pursuant to s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act). [43] As appears from that section, it is designed to provide a statutory basis, relevantly, for "defining the jurisdiction of any federal court other than the High Court" with respect to "any of the matters mentioned" in s 75 of the Constitution. [44]
[50] By s 75(v), the Constitution confers on this court original jurisdiction in all matters "in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth". [45] In the present matter, the appellants sought relief of the defined type directed to the tribunal. It was the second respondent below, as in this court. Because the tribunal ordinarily submits to the orders of the courts, the minister was named as the contesting respondent.
[51] The identity of the relief provided in the Constitution for the original jurisdiction of this court, and in s 39B of the Judiciary Act in respect of the jurisdiction of the Federal Magistrates Court and the Federal Court, indicates that the character and scope of the relief provided by that Act is, in material respects, the same as the relief provided for in the Constitution. [46] Thus, in determining the jurisdiction and powers of the Federal Magistrates Court (and on appeal, where error is shown, of the Federal Court) it is appropriate to start with an understanding of these remedies in Australian constitutional law.
[52] Constitutional writs are discretionary: In Re Refugee Tribunal; Ex parte Aala, [47] this court settled a number of important points concerning the remedies referred to in s 75(v) of the Constitution (and, hence, in s 39B of the Judiciary Act). Relevantly, for present purposes, the court concluded that whatever may have been the features of the named remedies in the pre-existing English and colonial "prerogative writs", the remedies were, in the Australian context, uniformly discretionary in nature. [48] Out of recognition of the public and federal character of the remedies, this court has ceased describing them (as it earlier did) as "prerogative writs". It has substituted the appellation of "constitutional writs". [49]
[53] When this point of distinction, derived from the specific Australian source of these remedies and their purpose, is appreciated, it is no longer necessary to treat the remedies provided in s 75(v) (or their statutory derivatives in s 39B of the Judiciary Act) as subject to the same disparate procedural features as had grown up during their long history in England, having no relevance to their essential constitutional and public law functions in Australia. That, I believe, is the reason that lay behind the decision in Aala to recognise that all of the remedies so provided are discretionary. They are available to the courts as the justice of the particular case requires.
[54] Of course, what is enlivened in each case is a judicial discretion. Many of the considerations taken into account earlier in the case of the prerogative writs remain pertinent. However, the universal discretionary character of the constitutional and statutory remedies is now settled. Where a party establishes prima facie grounds for the issue of such remedies, the resisting party may point to any considerations that will nevertheless warrant the ultimate refusal of relief in the particular circumstances of the case.
[55] In Aala, drawing on the earlier case law, various explanations were afforded by members of this court as to the circumstances that could warrant refusal of relief, although a party has otherwise established a foundation for it, as a matter of law. Thus, in their joint reasons in Aala, Gaudron and Gummow JJ said: [50]
[58] It is one thing to refuse relief on the ground of utility because, as Lord Wilberforce put it, "[t]he court does not act in vain". [51] For example, the application for an administrative determination may be one which, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse. [52] Or the prosecutor's complaint may be the refusal by the decision-maker of an opportunity to make submissions on a point of law which must clearly have been answered unfavourably to the prosecutor. [53] Again, the decision under review may have no legal effect and no continuing legal consequences may flow from it. In such a situation, the reasoning in Ainsworth v Criminal Justice Commission, [54] where the remedy refused was certiorari, indicates that prohibition will not lie. [55]
[56] In his reasons in Aala, McHugh J wrote to similar effect: [56]
[104] Not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach. This principle was acknowledged by this Court in Stead v State Government Insurance Commission [57] when it said that "not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial". Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because "[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome". [58]
[57] In my own reasons in Aala I indicated that the "public character of the legal duties" which the remedies were designed to uphold meant that "ordinarily, [relief] will issue where the preconditions are made out". [59] I went on to acknowledge: [60]
[148] ... But circumstances will occasionally arise where it is appropriate to withhold the writ because a party has been slow to assert its rights, has been shown to have waived those rights, or seeks relief in trivial circumstances or for collateral motives, and where the issue of the writs would involve disproportionate inconvenience and injustice.
[58] The decision in Aala was thus a clear indication by this court of the discretionary character of the remedies sought by the appellants in their applications for judicial review. In the result, all members of the court upheld the existence of the discretion and two (McHugh [61] and Callinan JJ, [62] in whole or part) refused the remedies claimed.
[59] The result of Aala is that, whilst establishment of the preconditions for this form of relief will ordinarily entitle a party to the relief, there will always remain a residual discretion to be exercised judicially. Some of the considerations relevant to that decision have been identified. However, in the nature of discretionary remedies, much will depend on the facts and circumstances of the particular case.
[60] Resistance to the contention: The minister acknowledged that neither the Federal Magistrates Court nor the Federal Court had, in terms, rejected the appellants' proceedings on discretionary grounds. Moreover, in neither court had the minister urged that course. So far as the appellants had relied on s 424A, the minister had submitted that there had been no contravention of the section and thus no occasion to consider whether remedies for default should be refused on discretionary grounds.
[61] The appellants objected to the minister's late application to rely on a notice of contention raising the discretionary point. There is no merit in that opposition. The issue is not one that could have been met by any evidence below provided by the appellants. [63] The argument is addressed solely to the matters available in the record. Any defects in the presentation of the point below arise from the ill-focused character of the appellants' arguments, because they were not then legally represented. The propounded contention is entirely consistent with the minister's submissions there. It was clearly foreshadowed during the special leave hearing. The minister should therefore have leave to file his notice of contention and raise this discretionary argument.
[62] Arguments against relief: Assume, for the purpose of argument, that in this appeal the appellants could establish a breach by the tribunal of the requirements of s 424A. Any such breach would depend upon establishing the preconditions envisaged by s 424A. To this extent only it is necessary to consider what s 424A, read with s 441A of the Act, provides. Section 424A assumes the existence of "information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". The failure to comply with s 424A is said to be constituted by the failure of the tribunal to give the appellants copies in writing of the documents allegedly inconsistent with the male appellant's oral evidence, that being the method prescribed for giving such documents to a person. [64] Might any such failure have affected the correct disposal of the appellants' application to the tribunal? If it might, the matter would not be suitable for dismissal in the exercise of a judicial discretion.
[63] The minister submitted that in this matter such a failure, based on s 424A, even if established, could not have affected the tribunal's decision. This was because that decision rested on a reason insusceptible to alteration by any response which the appellants might have made to the posited information, had it been given to them as s 424A envisaged. The tribunal's decision depended upon its conclusion that the character of the dispute which the appellants had described with the male appellant's former wife's family in India was a private dispute about private animosities.
[64] Thus, even if those animosities had given rise to "fear", including the fear of being wrongly and corruptly prosecuted and imprisoned for criminal offences, this did not amount to persecution. Still less to "being persecuted for reasons of ... religion ... [or] membership of a particular social group". The words "for reasons of" require the characterisation of what had occurred, as does the necessity of establishing persecution. In short, the characterisation, by the delegate and relevantly by the tribunal, concluded that the "reasons" were private inter-familial hostility. They lacked the character necessary to bring them within the Convention grounds.
[65] Once the tribunal so decided, the Act required [65] the protection visas sought by the appellants to be refused. The appellants could not satisfy the criteria for the grant of protection visas. [66] The formation of that conclusion concerning the character of the "reasons" would be unimpeached by any contravention that the appellants might be able to demonstrate concerning the requirements of s 424A. It stood alone, and sufficient in itself, to sustain the decision of the tribunal, effectively confirming the decision of the delegate based, ultimately, on the same reason.
[66] As the reasons of the tribunal show, the member did call to the male appellant's attention the suggested disparity between his oral evidence and earlier written "information":
I asked the [male appellant] whether he could explain the discrepancies between his written claims and that of his oral evidence as to the dates of his arrests. The [male appellant] responded that his memory was not good. He added that a person did not want to remember bad things. He also asked the tribunal whether there was much difference. He added that he did not believe that it was important when things occurred rather that they had occurred. After his wife gave oral evidence it was put to the [male appellant] that his written statement and his wife had indicated that the last arrest occurred in December 2001. The [male appellant] again explained the discrepancy by stating that his memory was very bad.
[67] In the light of this oral identification of the "information" derived from the appellants themselves, any infraction of s 424A is effectively reduced to a complaint of a failure of the tribunal to provide the "information" concerned to the appellants in written form with an invitation to comment on it. [67] No such requirement or formality would exist as part of the general law of natural justice and procedural fairness. However, allowing for the parliament's provision for such a requirement, [68] the fact remains that any comment by the appellants on these particular matters could not possibly have altered the tribunal's characterisation of the "reasons" for the appellants' propounded fear of persecution.
[68] Any breach of s 424A might be relevant to the general credibility of the male appellant. However, the tribunal's "reason" for affirming the decision of the delegate was more basic. It was a "conclusion" about the "reasons" for the propounded fear of persecution on the part of the appellants. And that conclusion was that the source of any "fear" was private and for domestic reasons. It was not for reasons that would enliven the protection obligations imposed on Australia as a state party to the Convention.
[69] Suggested inconsistency with SAAP: Is this conclusion inconsistent with the reasoning of the majority of this court in SAAP? I was part of that majority and I do not consider that there is an inconsistency.
[70] All members of the majority in SAAP acknowledged the residual availability of a discretionary decision to decline relief. [69] However, in the circumstances of SAAP, all members of the majority concluded that relief should not be denied in the exercise of that residual discretion.
[71] The circumstances of SAAP and of the present case are very different. In SAAP, the applicants before the tribunal were a mother and young daughter. The mother was illiterate. The mother and daughter were detained in immigration detention at Woomera. The mother had an older daughter, living in Sydney, who gave information to the tribunal, in the mother's absence, in some ways adverse to her claim. [70] The case was a clear example of the circumstances in which the provision of information in writing was required. [71] It might have affected the outcome because that information was critically addressed to what "would be the reason, or a part of the reason, for affirming the decision that is under review". [72]
[72] That is not the present case. Here, in so far as the procedures adopted by the tribunal are concerned, the substance of the "information" before the tribunal was drawn to the appellants' notice orally. [73] More fundamentally, however, the "information" was not addressed to "the reason, or a part of the reason" for the tribunal's decision. [74] When properly analysed, that "reason" was the conclusion of the tribunal about the character of the conflict involving the male appellant and his former wife's family and the "reasons", within the language of the Convention, for any "fear of persecution" which the appellants had deterring them from availing themselves of the protection of the country of their nationality, India.
[73] Whereas in SAAP, it was my opinion that "discretionary considerations overwhelmingly [favoured] the provision of relief", [75] in the present appeal, they overwhelmingly favour the refusal of relief. They do so because here any non-compliance with s 424A was immaterial to the "reason" of the tribunal for its decision adverse to the appellants which I have identified.
[74] Invalidity and discretion: The appellants submitted that this conclusion was inconsistent with some of the majority reasoning in SAAP, which the minister (despite a few hints from the Bench) declined to challenge and accepted as correctly stating the law on s 424A. [76]
[75] It is true that in the reasons of McHugh J [77] and of Hayne J [78] in SAAP, emphasis was placed on the invalidity of a decision made following a breach of the requirements of s 424A and the relevance of such invalidity to the availability of certiorari to quash "what is found to be an invalid decision". [79] However, neither McHugh J nor Hayne J questioned the principle established by this court in Aala, that relief of the kind described in s 75(v) of the Constitution (and reflected in s 39B of the Judiciary Act) is fundamentally discretionary in nature. Nor, in my reasons, did I. Moreover, McHugh J expressly acknowledged that in some circumstances (suggestion of delay, waiver, acquiescence or unclean hands) [80] relief might be withheld on discretionary grounds.
[76] It will often (perhaps usually) be the case that the remedies for which s 75(v) of the Constitution (and s 39B of the Judiciary Act) provide are enlivened by instances of established jurisdictional error. Yet to acknowledge the existence of a discretion to withhold relief is to accept that, in some instances, although invalidity is established, the circumstances do not call for the provision of judicial remedies.
[77] In a sense, this conclusion simply acknowledges the great variety of cases and circumstances that come before the courts; the different kinds of infraction that are said to warrant relief; the different positions of the parties; and the need to conserve relief to cases where it is appropriate and required to do practical justice. Sometimes the reasons for denying relief may have their origins in defaults and omissions on the part of the claimant ("because a party has been slow to assert its rights, has been shown to have waived those rights", [81] or otherwise). Sometimes, relief may be denied because the error relied upon is immaterial to the reasoning of the decision-maker. Instances of immateriality of this kind were identified by Gaudron and Gummow JJ in Aala. [82] The present appeal affords another, and different, instance.
[78] Reason or part of the reason: The appellants asked rhetorically, in effect, how it could be said that the alleged disparity between the oral evidence given by the male appellant and the earlier written documentation was not "the reason, or a part of the reason, for affirming the decision that is under review" when the tribunal had expressly referred to that subject in the reasons for its decision.
[79] Not everything that is said in the course of the reasons of a tribunal or a court, when analysed, constitutes "the reason, or a part of the reason" for the resulting dispositive order. To find that "reason" requires more than pointing to the discursive reasoning of the decision-maker. It requires analysis, a fact made clear by the use in s 424A of the conditional tense (would be) -- a formulation that necessitates a hypothetical construct. [83]
[80] In countries of the common law tradition, such as Australia, the reasoning of courts and tribunals is typically (as in this case) detailed and elaborate and includes material that is not strictly necessary to the ultimate decision. This mode of reasoning contrasts with that typical of courts and tribunals in most civil law countries, although the two systems have lately moved somewhat towards each other. Finding what would be "the reason" or "a part of the reason" for a "decision" of a tribunal requires identification of the links in the chain that sustain (if they do) the eventual disposition.
[81] Many reasons of courts and tribunals contain discussion of matters that are not part of this process of reasoning. [84] Thus, they may include a more detailed account of the facts, as recounted by the witnesses, than is strictly necessary. They may contain a description of the submissions of the parties, although ultimately some or most of these may be treated as superfluous, irrelevant or insignificant to the decision. They may refer to legislation and case law that is not, in the end, determinative. They may set out impressions of witnesses, although such impressions do not eventually control, or even influence, the decision.
[82] It is pointless to complain about these features of discursive reasoning. They are well entrenched. In part, they derive from tradition; pressures imposed on decision-makers to complete their reasons quickly; the premium normally attached to candour and disclosure of the consideration of evidence and argument in reasoning; and the fact that the process of explaining decisions sometimes clarifies, in the mind of the decision-maker, those elements that are (or would be) "the reason, or a part of the reason" for the decision, thereby distinguishing them from those that are not (or would not be) such.
[83] The appellants submitted that the alleged discrepancies between earlier written documents and their oral evidence before the tribunal had influenced the tribunal's assessment of their credit. In this sense, they argued, the discrepancy would at least be "a part of the reason" for the tribunal's ultimate decision.
[84] In many cases, including claims to refugee status, this would undoubtedly be so. Thus, if the tribunal were to disbelieve that a refugee applicant was an apostate convert to Christianity [85] or a homosexual [86] or the victim of domestic violence [87] and this was the basis of the propounded fear of persecution, obviously a reference to evidence relevant to the applicant's credit would be "the reason, or a part of the reason" for the tribunal's decision. In that event, as in SAAP, the requirements of s 424A would necessitate provision of the information in question and in the form specified in the section. [88]
[85] The correct analysis: However, that is not this case. Here, after elaborating all of the descriptive material, recounting the ways in which the appellants put their case, describing the country information, recording impressions of witnesses and so forth, the tribunal, in effect, cut to the chase. Essentially, it said: Be that all as it may, and accepting the claim as stated in full, it still lacks the essential nexus to a Convention ground. It is a private dispute. As such, it does not attract the country obligations imposed by the Convention.
[86] Properly analysed, that was "the reason" and the only "reason" in this case for the tribunal's decision. It was sufficient. And it necessarily required rejection of the appellants' claims. It could not possibly have been affected by anything that might have been said by either of the appellants in response to written copies of documentation addressed only to preliminary, collateral and discursive matters as set forth in the tribunal's reasons. Whilst I agree that the phrase "the reason, or a part of the reason" should not be narrowly read so as to diminish the obligations of s 424A (SAAP stands against such a narrow reading), the search is not simply for a passage in the tribunal's discussion. It is for the identification of something more substantive. Just as the elucidation of the ratio decidendi of a decision for legal purposes requires analysis, [89] "the reason, or a part of the reason" referred to in s 424A(1)(a) also requires discernment and correct analysis. In both cases, it is a mistake to treat everything this is, or might be, contained in the discursive reasoning as significant for the more precise legal purpose in hand.
Conclusion and order
[87] Once the foregoing conclusion became clear, it was immaterial for the Federal Magistrates Court or the Federal Court to examine the extent of the default of the tribunal, if any, under s 424A or to elaborate further the meaning of that provision. Any such default could not have affected the decision of the tribunal for the reason that it accepted. An application for judicial review of that decision was therefore liable to dismissal on discretionary grounds. [90] Discretionary refusal of judicial review must be exercised with care, particularly where the hypothesis of jurisdictional error is a possibility. However, in some such cases (of which this was one) invocation of the discretion is proper, prudent, economical and just.
[88] In effect, the discretion allows the reviewing court to say: The case is clear. A sound basis for the challenged decision has been established. Even if a postulated error has occurred in complying with s 424A and could be proved, any such error is immaterial because it could not undermine the essential legal basis that sustains the decision. In that event, to divert the court's time and resources into examining a supposed technical breach is not a proper use of its energies. Nor is it required by the justice of the case.
[89] When such conclusions are reached, the reviewing court is entitled to, and should, reject the application in the exercise of its discretion. It should leave analysis of suggested technical infractions to a case where the result of such analysis might influence the outcome. This was not such a case.
[90] Upon this discretionary ground, and not for any view of the compliance or non-compliance with s 424A of the Act, I would dismiss the appeal with costs.