Discounting evidence due to ‘conflicting evidence’ or ‘doubt’

In Re Minister of Immigration, Local Government and Ethnic Affairs v Gamdur Singh Dhillon and Marcelle Suzanne Maree Lievense Dhillon [1990] FCA 144 the Court said:

it is not correct to discount a factor favourable to an applicant by reference to conflicting evidence or doubts. A person affected by a statutory decision is entitled to have the case determined by reference to found facts, not suspicions or conflicts of evidence.

Abandonment of claims

The issue is discussed in MZZES v Minister for Immigration and Border Protection [2015] FCA 397.

Also, the mere fact that a claim on the materials before the Tribunal is not subject of oral submissions does not mean it is abandoned: SZVWF v Minister For Immigration & Border Protection [2016] FCCA 2532, [24]-[25]; SZTSM v Minister for Immigration and Border Protection [2015] FCCA 583, [25]; SZSRQ v Minister for Immigration [2014] FCCA 2205, [58]-[62].

What the AAT must do to actually ‘consider’ a claim

Perry J summarised them in SZSZW v Minister for Immigration and Border Protection [2015] FCA 562 at [15]-[19]:

Secondly, the requirement under s 414 of the Act to “review” the decision requires that the Tribunal consider the applicant’s claims. As Allsop J (as his Honour then was) held in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at 259 [42]:

To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. See also Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding.

Thirdly, as I recently explained in SZTDY v Minister for Immigration and Border Protection [2015] FCA 303 at [38] in determining whether a claim has been made attracting the obligation to consider it:

A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a “substantial, clearly articulated argument” that, if accepted, might establish a well-founded fear of persecution for a Convention reason (Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26; (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [90] (the Court); see also the helpful recent discussion of relevant principle in SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 142 ALD 150 at [81]-[82] (Griffiths J). Equally, there will be a constructive failure to exercise jurisdiction if the Tribunal fails to consider a claim which “squarely” arises on the material before the Tribunal in the sense that “it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal”: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58] (the Court). In either case, the constructive failure to exercise jurisdiction may properly be seen as a failure to carry out the review required by s 414 of the Act: NABE at [55]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] (Allsop J with whom Spender J agreed at [1]).

(Abbreviations omitted.)

In the fourth place, the requirement to consider a claim or integers of a claim made by an applicant requires the application of an active intellectual process. As the Full Court held in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547 (MZYTS) at 559 [38], “[t]hat task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant…”.

A sharp contrast between permissible ‘cherry-picking’ of evidence (the Court’s words, not mine) to arrive at a Minister-favourable conclusion and a failure to properly consider evidence is ABAR15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 721.  See [85]-[87], especially [86]-[87]:

Generally speaking, it may be open to the Minister (or, on review, the Tribunal) to cherry pick from among various sources of country information so as to form, by its own evaluation of the selected material, its own conclusions of fact. It may also be accepted that, as a general rule, an administrative decision that involves the weighing and evaluation of countervailing considerations is not a decision amenable to interference by a Court on judicial review merely because the Court might evaluate the considerations differently or accord different considerations more or less weight than that accorded by the Tribunal.

However, the material before the Tribunal did not contain conflicting statements as to the effectiveness of domestic violence laws in Vietnam so that the Tribunals’ decision could properly be viewed as one involving the preference of one body of evidence over another. The statements and opinions expressed in the reports concerning the effectiveness of the law were consistent, not countervailing. They were not contradicted by any other material to which the Tribunal referred.

The distinction between failure to take into account a “relevant consideration” or claim and a “mere failure to deal with evidence”

It is not the case that a failure to take into account evidence cannot amount to jurisdictional error.  The Minister had often previously submitted that only a failure to consider a claim could amount to jurisdictional error, and that a ‘mere failure to deal with evidence’ could not.

In Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, the Full Federal Court said at [64]:

The minister’s contention that any error was of a factual nature, not going to jurisdiction, was developed in large part by reference to a line of cases said to support a distinction between a “relevant consideration” or claim and a “mere failure to deal with evidence”. We are not persuaded the line is as bright, or the distinction as encompassing, as the minister submits.

Later, at [70] their Honours said:

With respect, we consider this is the conclusion reached by Robertson J in SZRKT, most directly expressed at [98], where his Honour states that the identification of jurisdictional error cannot “put out of account the actual course of decision-making by the tribunal” and cannot proceed “by reference to categories or formulas”, observing that “there are many ways, actual or constructive, of failing to consider the claim”. His Honour develops this at [111] by disavowing any jurisdictional/non-jurisdictional distinction between claims and evidence and instead finding, correctly in our respectful opinion, that the “fundamental question must be the importance of the material to the exercise of the tribunal’s function and thus the seriousness of any error”. We agree with his Honour’s analysis.

Similar comments were made in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 [54].

See also What the AAT must do to actually ‘consider’ a claim.

‘Errant fact finding’

In Htun there was a distinction drawn between failure to consider an integer of a claim and ‘errant fact finding’.

What ‘errant fact finding’ is was described in SZRHL (2013) 136 ALD 641; [2013] FCA 1093:

[23] In the case mentioned in the passage cited from SZQRW, MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441 ; [2010] FCAFC 123, the Full Court observed that (at [83]):

[83] A distinction is to be drawn between the failure to deal with a claim (a constructive failure to exercise jurisdiction) and what has been described as errant fact-finding: HTUN v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 ; [2001] FCA 1802 at [42] per Allsop J; cited with approval by the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 ; 219 ALR 27 ; [2004] FCAFC 263 where the Full Court discussed extensively errors of fact and jurisdictional error in the Tribunal. In Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 ; [2010] FCAFC 51 at [28] North and Lander JJ observed that an error of fact based on a misunderstanding of evidence in considering an applicant’s claims is not jurisdictional error so long as the error does not mean that the Tribunal has not considered those claims.

[24] That there is a difference between a failure to deal with the claim as made for a protection visa and dealing with a claim as made but making a wrong finding of fact in the course of so doing may be accepted. The boundaries of that difference may be elusive where the fact concerned is an integral part of the claim as made. Further, as Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 ; 73 ALD 321 ; 77 ALJR 1088 ; [2003] HCA 26 (Dranichnikov) illustrates, exactly what constitutes the nature and scope of the claim as made for a protection visa may itself be a subject upon which reasonable minds might reasonably differ. That is an ever present risk in cases of this kind where so often the protection visa application will be authored on behalf of, if not by, a person whose first language is one other than English.

[25] Yet further, a conclusion that the claim as made has been dealt with and that the error is to be regarded as “errant fact finding” does not, in itself, mean that there can be no jurisdictional error. The end result of that errant fact-finding may yet be that the tribunal has conducted its “core function” of review in a way that is unreasonable in the sense described by Gageler J in Li (at [105]):

[105] “It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason.” Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.

[26] Correctly apprehending the claim as made for a protection visa but determining that claim in a way that is so unreasonable that no reasonable person could so have dealt with it is just as much a failure to exercise a review jurisdiction according to law as not dealing with the claim as made. Even where an administrator has provided reasons which disclose an “evident and intelligible justification” (compare Liat [76] per Hayne, Kiefel and Bell JJ) for a decision those reasons may be intelligible only in the sense of making evident an illogical or irrational process of reasoning to an ultimate conclusion of fact.

Injunctions or court orders made without authority compared to administrative decisions affected by jurisdictional error

In DPP v Ty [2009] VSCA 226; 24 VR 705, the Victorian Court of Appeal unanimously restated the position that a Court order must be obeyed even if that order is invalid.  The Court said at [27]:

an injunction must be obeyed ‘to the letter’ unless and until it is dissolved or set aside on appeal.[21]  Breach of an injunction will be a contempt of court notwithstanding that the injunctive order is later quashed on appeal.  The status of court orders – at least those of superior courts – is quite different in this respect from that of administrative decisions.[22]  Even a court order which lacks constitutional (and therefore legislative) authority only ceases to have valid operation from the date of quashing.[23]

The proposition that an administrative decision affected by jurisdictional error is ‘no decision at all’ is famously articulated by Gaudron and Gummow JJ in Minister for Immigration v Bhardwaj (2002) 209 CLR 597:

There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside.  A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all[33].  Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged.  A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition.

The proposition that Court orders stand unless and until set aside has implications for contempt.  For example, it would seem that neither the Commonwealth or Minister for Immigration can argue that they are entitled to move a person from one place of detention to another (for example, from Perth Immigration Detention Centre to Christmas Island) on the basis that a decision to make such a move is a privative clause decision under the Migration Act.  If an injunction exists to prohibit the move, that injunction must be obeyed even though the Minister thinks that the Court has no power to make such an injunction.  The injunction must first be set aside.  It follows that disobeyance of the injunction may be a contempt of Court.

Charter arguments can be raised even if non-charter arguments would not succeed

Sections 38 and 39 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) are:

38 Conduct of public authorities
(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.
Example
Where the public authority is acting to give effect to a statutory provision that is incompatible with a human right.

39 Legal proceedings
(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.
(2) This section does not affect any right that a person has, otherwise than because of this Charter, to seek any relief or remedy in respect of an act or decision of a public authority, including a right—
(a) to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and
(b) to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.

It is now well-established that all that is required to raise a charter ground in an otherwise non-charter proceeding is the mere availability, in the abstract sense, of relief or remedy in the otherwise non-charter proceeding. Thus for example, if a decision is subject to judicial review whether by rule 56 of the Supreme Court (General Civil Procedure) Rules 2015 or the Administrative Law Act 1978–as most decisions are–then even if a common law ground that would give rise to jurisdictional error cannot be made out, the decision may be unlawful by reason of a Charter ground and nothing else.

See The Queen v Debono [2013] VSC 407, [75]-[82].  At [82], Kyriou J said:

the mere exercise of an available right to seek relief or remedy in respect of an act or decision of a public authority on a ground that is independent of the Charter is sufficient to satisfy the condition in s 39 of the Charter; that is, s 39 does not depend upon a successful exercise of that right based on the non-Charter ground.

Improper questioning, frequent interruption, sarcasm, rudeness, impatience, tone and other discourteous behaviours of RRT members can amount to apprehended bias

There is a brief summary of the authorities on when discourteous behaviours of RRT members can amount to a denial of natural justice by reason of apprehended bias, in AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193.

On the facts in AZAEY, there was no apprehended bias.  This was so, even though the Court found that on some occasions the Tribunal member did interrupt the Applicant on ‘a number of occasions’, was ‘incredulous’ towards the Applicant and raised her voice towards the Applicant.  The Court also referred to a number of occasions in which the Applicant was crying, presumably as a result of the Tribunal member’s behaviour.

The Court concluded however, that when having regard to the transcript and recording of the RRT hearing as a whole, an informed person ‘would satisfactorily reach a  conclusion that the Applicant had been afforded a hearing in which the Tribunal member was “open to persuasion”‘: [29].  That is the ‘governing principle’ in relation to apprehended bias: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337 at 344 to 345, cited in AZAEY at [17].

Discretion to refuse relief on grounds of ‘futility’

The well-understood principles are discussed in Lee v Minister for Immigration and Citizenship [2007] FCAFC 62, [48]-[53]:

48 In my opinion, before a Court will exercise its discretion to refuse relief on the ground of futility, it must be quite clear that a rehearing or reconsideration is or will be futile.

49 I turn now to consider whether futility was made out in this case. A question arises as to the point in time at which the question of futility is to be assessed. As far as administrative decisions are concerned, there is little authority on the point. There is reference to a “backward-looking test” which requires futility to be assessed at the time the decision-maker made its decision. There is reference to a “forward-looking test” which requires futility to be assessed at a time in the future when the reconsideration or rehearing takes place. In many cases, it will not matter which test is applied because the same result will follow.

50 We were referred to a decision of this Court which has considered which test is appropriate, albeit in the context of a decision made by a Court in breach of the rules of procedural fairness. In Giretti v Commissioner of Taxation (1996) 70 FCR 151 Lindgren J (with whom Jenkinson J agreed) decided the case on the basis that there had been no failure to accord procedural fairness. As an alternative ground upon which the appeal should be dismissed, Lindgren J said that assuming a failure to accord procedural fairness, nevertheless, the appellant had not been deprived of even a possibility of a favourable result. Lindgren J favoured a backward-looking test. He said (at 165):

“No doubt in most cases, the application of the two tests will yield the same result. Perhaps the better view is that there is scope for the operation of both tests as alternatives in the sense that it is a ground for denying relief either that there was or that there is no possibility of a different result (cf the section heading in Woolf and Jowell, De Smith’s Judicial Review of Administrative Action (5th ed, 1995), p 498, ‘Where the defect of natural justice has made no difference to the result; where to require fairness or natural justice would be futile; where no prejudice has been caused to the applicant’ and discussion following). At least, it seems correct in principle that a backward-looking test should have scope to exclude relief. It is difficult to accept readily that a person who has been denied the benefit of procedural fairness should be entitled to be placed in a better position than if he or she had not been.”

51 Merkel J favoured a forward-looking test and, in my respectful opinion, his reasons for doing so are highly persuasive, as are the points made by Bingham LJ in R v Chief Constable of Thames Valley Police; Ex parte Cotton [1990] IRLR 344 at 352 (see also T Bingham “Should Public Law Remedies be Discretionary?” (1991) Public Law 64 at 72-73). In my opinion, it is appropriate to apply a forward-looking test at least in the particular statutory context under consideration in this case. Through no fault of their own, the appellants have been deprived of procedural fairness (as prescribed by the Act) and the requirement that the first appellant be nominated by an approved standard business sponsor is a requirement which must be satisfied at the time of decision.

52 I acknowledge that if a backward-looking test is applied it is appropriate to make a finding of futility and to refuse relief. At the time the Tribunal member made his decision on the appellants’ application for review, namely, 7 January 2004, there was no approved standard business sponsor. Konel’s sponsorship application had been refused by the same Tribunal member about two months before that date. Konel had not challenged that decision and, as at 7 January 2004, there was no suggestion that another applicant for approval as a standard business sponsor had or would come forward.

53 However, as I have said, I think it is appropriate to apply a forward-looking test and doing so results in the conclusion that, whilst a rehearing may prove futile, the Court cannot be certain that that will be the case. I put to one side for the moment the appellants’ challenge to the Tribunal’s decision in relation to Konel’s sponsorship application which, in any event, for reasons I will give, must be rejected. The Court cannot be certain that a rehearing will be futile because (and I understood the first respondent to concede this) nomination by an approved standard business sponsor is a requirement to be satisfied at the date of decision and it is a possibility that this criterion will be met on a rehearing of the appellants’ application for review. It may well be that it will not be met but, in my opinion, unless it is clear that it will not be met, relief should not be refused on the ground of futility. In other words, I do not think that relief should be refused unless it is clear that a rehearing will be futile and I do not think that it is clear in this case.

(emphasis added)