ILLOGICALITY BY ANY OTHER NAME: THE HIGH COURT’S DECISION IN FTZK AND HOW TO USE IT
ILLOGICALITY BY ANY OTHER NAME:
THE HIGH COURT’S DECISION IN FTZK AND HOW TO USE IT
James Forsaith*
FTZK v Minister for Immigration and Border Protectioni (FTZK) is a decision of the High Court, delivered just over a year ago. I think it is one of those cases where it is hard to believe that
the Court really meant what it said. I will explain my perplexity by arguing that FTZK is a missed opportunity to settle jurisprudence on
reasons and rationality in administrative decision-making and then ask whether the High Court has gone too far in its rejection of ‘rigid taxonomies’
in the grounds of judicial review.ii
Who is FTZK?
FTZK is a Chinese national who entered Australia in 1997 on a temporary business visa.iii
Later that year, Chinese authorities arrested two men on charges of kidnapping and murder of a 15-year-old boy. The two men apparently gave statements
implicating FTZK. A warrant was issued for FTZK’s arrest. The warrant and statements were provided to Australian authorities in support of his extradition.
His co-accused were executed.iv
Meanwhile, FTZK applied for a protection visav — that is, he claimed to be a refugee. His claim fell to be assessed by reference to s 36 of the Migration Act 1958 (Cth), which provides
for protection visas for non-citizens ‘in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention’.
vi
It is in this context that he was assigned the acronym ‘FTZK’.
FTZK’s claim was refused by a delegate of the Minister, whose decision the Administrative Appeals Tribunal (the AAT) affirmed. FTZK then disappeared into
the community for four years until he was apprehended and taken into immigration detention.vii
FTZK then succeeded on judicial review of the AAT’s decision.viii
On remitter, the Refugee Review Tribunal (the RRT) made another jurisdictional error and the matter was again remitted.ix This time, the RRT decided that FTZK was entitled to a protection visa subject to the question of whether art 1F of the United Nations Convention Relating to the Status of Refugeesx (the Convention) applied. Lacking the jurisdiction to determine this,xi the RRT remitted the matter to the Minister for further consideration.xii
Article 1F of the Convention provides:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that … he has committed
a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee …
There being no issue that murder is a ‘serious non-political crime’,xiii the only issue was whether there were ‘serious reasons for considering’ that FTZK was responsible.xiv The Minister’s delegate found that art 1F applied.xv FTZK again sought review in the AAT.xvi
The AAT’s decision
The AAT affirmed the decision under review, giving four reasons in as many paragraphs:
First I have taken into account the allegations contained in the documents provided by the government of China …
First I have taken into account the allegations contained in the documents provided by the government of China …
Secondly, on the basis of the evidence of the Applicant I am satisfied that he left China shortly after the crimes were committed and that he provided
false information to the Australian authorities in order to obtain a visa to do so …Thirdly, I am satisfied that the Applicant was evasive when giving evidence as to his religious affiliations in Australia and China and I am satisfied
that he was not detained and tortured in China as he alleges …Fourthly, I have taken into account also that the Applicant attempted to escape from detention in 2004, shortly after his application for a long term
business visa was refused …xvii
Whereas the first of these reasons is based on direct evidence, the remainder are based on indirect or circumstantial evidence. Their relevance would appear
to be via what is commonly referred to as ‘consciousness of guilt reasoning’.xviii
The AAT then remarked:
The conclusion I have reached is based on the totality of the evidence … it is the combination of factors which gives rise to reasons of sufficient
seriousness to satisfy art 1F …xix
Argument on review
FTZK applied for judicial review. His application was heard by a Full Federal Court.xx He argued, in essence:xxi
- that the AAT’s reasons contain no ‘consciousness of guilt’ findings;
- therefore, no such findings were made;
- therefore, reasons 2, 3, and 4 were based on material that was not probative;
- therefore, they were ‘irrelevant considerations’;
- the AAT took them into account;
- this affected the outcome; and
- therefore, the AAT fell into jurisdictional error.
The emphasised words each carry considerable jurisprudence,xxii which might have been determinative of FTZK’s argument. Before we examine this jurisprudence, it is worth digressing to consider the broader ‘framework
of rationality’ of which they are both part.
A framework of rationality
In Minister for Immigration and Citizenship v Lixxiii (Li),
French CJ spoke of a ‘framework of rationality’ that implicitly attends statutory grants of power.xxiv It is required by the ‘rules of reason’ and includes, but is not limited to, an implicit command to exercise statutory discretions reasonably.xxv
An essential component of this framework of rationality must be a requirement to reason logically. There is, of course, nothing novel in this. For example,
in Minister of Immigration and Ethnic Affairs v Pochixxvi (Pochi), Deane J said:
There would be little point in the requirements of natural justice aimed at ensuring a fair hearing by such a tribunal if, in the outcome, the decision-maker
remained free to make an arbitrary decision. … I respectfully agree with the conclusion of Diplock LJ that it is an ordinary requirement of
natural justice that a person bound to act judicially ‘base his decision’ upon material which tends logically to show the existence or nonexistence
of facts relevant to the issue to be determined.xxvii
Whereas Deane J saw logicality as an incident of natural justice, in Hill v Greenxxviii Spigelman CJ saw it as a presumption of statutory interpretation:
In my opinion, where a statute or regulation makes provision for an administrative decision in terms which do not confer an unfettered discretion on the
decision-maker, the courts should approach the construction of the statute or regulation with a presumption that the parliament or the author of the
regulation intended the decision-maker to reach a decision by a process of logical reasoning and the contrary interpretation would require clear and
unambiguous words.xxix
What does his Honour mean by ‘a process of logical reasoning’? I think these words connote basic concepts of evidence and proof which, stripped of their
formal rules, are no less relevant to administrative decision-makers than they are to courts. As such, we may have regard to the basic tenets of logicality
as pronounced in the latter context.
Evidence
With regard to evidence, the obvious starting point is the Uniform Evidence Law.xxx Admissibility depends on relevance, which in turn depends on rationality:
55 Relevant evidence
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment
of the probability of the existence of a fact in issue in the proceeding. …56 Relevant evidence to be admissible
(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible.
Further, where the Uniform Evidence Law considers relevance as a matter of degree, it employs the concept of ‘probative value’:
probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability
of the existence of a fact in issue …xxxi
The word ‘rational’ is not defined in the legislation and is not squarely tackled in any case. However, the drafters of the Uniform Evidence Law had emphatically
endorsed a body of ‘rationalist’ evidence law literature,xxxii which essentially says that A is probative of B if it can be deduced from A that B is more likely than it otherwise would have been.xxxiii
Proof
Proof is all about how we reason from evidence.xxxiv We do so directly where a ‘primary’ finding of fact is a ‘fact in issue’ in the proceedings. Otherwise, where we must make further ‘intermediate’ findings,
we reason circumstantially. In this context, it is common to speak of ‘chains’ of inferences.
It takes only one illogical inference to break a chain of inferences, with the result that it no longer contributes to proving a fact in issue. If no other
chains support the fact in issue, the proof collapses. Otherwise, it is merely weakened.
In FTZK, as we have already seen, there were four parallel chains supporting the AAT’s finding of ‘serious reasons’. In such cases, it is often
impossible to tell which, if any, of the chains are critical. But the AAT’s remark that no one factor would suffice to constitute ‘serious reasons’
made it possible to debase its decision by attacking three of its four reasons. This is what FTZK set about doing.
Against this background, let us consider the two areas of jurisprudence that would appear to be most relevant to FTZK’s arguments on judicial review.
Reasons
The cornerstone of FTZK’s case was that the AAT’s reasons contained no reference to ‘consciousness of guilt’. This directs attention to the AAT’s obligation
to give reasons.
Section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act)provides, relevantly:
(1) … the Tribunal … shall make a decision in writing …
(1) … the Tribunal … shall make a decision in writing …
(2) … the Tribunal shall give reasons either orally or in writing for its decision …
(2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a
reference to the evidence or other material on which those findings were based.
From these obligations fall three questions:
- What standard is required?
- What are the consequences if the AAT falls short of that standard?
- How does one know whether this has happened — that is, how does one tell apart:
- irrational reasoning that is exposed by adequate reasons; and
- rational reasoning that is obscured by inadequate reasons?
The standard required
In 2006, French J (as his Honour then was) said of s 43:
The obligations set out in s 43 are not necessarily discharged by merely setting out findings on material questions of fact, referring to the evidence
on which those findings are based and then stating a conclusion. … the Tribunal will have discharged its duty under s 43 if its reasons disclose
its findings of fact, the evidence on which they were based and the logical process by which it moved from those findings to the result in the case.
xxxv
More recently, in Wingfoot Australia Partners Pty Ltd v Kocakxxxvi
(Wingfoot), the High Court said:
The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact
formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a
court to see whether the opinion does or does not involve any error of law.xxxvii
Consequences
On the question of what follows from inadequate reasons, the High Court said:
A Medical Panel which in fact gives reasons that are inadequate to meet the standard required … fails to comply with the legal duty imposed on it
by s 68(2) and thereby makes an error of law. Inadequacy of reasons will therefore inevitably be an error of law on the face of the record of the Medical
Panel and certiorari will therefore be available …xxxviii
There is no federal equivalent to s 10 of the Administrative Law Act 1978 (Vic), which operated in Wingfoot to expand the ‘record’ of
the decision to include any statement of reasons.xxxix That this may affect the availability of certiorari on judicial review is no matter where, as in s 44 of the AAT Act, there is the alternative of an
appeal on a question of law. FTZK, however, concerned a decision made under the Migration Act, which contains not only a privative clause
xl
but also an express abrogation of s 44.xli
Migration applicants must therefore show jurisdictional error.xlii This gives rise to the question of whether a failure to give reasons goes to jurisdiction.
This is a question of statutory interpretation, and the answer is probably ‘no’.xliii This puts applicants in the same position as in Re Minister for Immigration and Multicultural Affairs; Ex parte Palmexliv (Palme), where the High Court said:
Failure to provide reasons may also be reviewed in this Court and compliance by the Minister with the statutory duty may be ordered. The reasons then provided
may furnish grounds for prohibition under
s 75(v) in respect of the visa cancellation decision. But what is not provided for is for a prosecutor, as in this case, to bypass that earlier step
utilising mandamus, and to impeach the visa cancellation decision itself for want of discharge of the duty to provide reasons.xlv
Palme is not a case that applicants tend to invoke. They probably do not suppose that the AAT will respond to judicial scrutiny by producing a
set of reasons that discloses jurisdictional error.xlvi
Instead, they argue that the AAT’s reasons are a true reflection of its actual process of reasoning. Indeed, in FTZK:
Mr Nash summarised the applicant’s position by saying that the Tribunal had clearly and fully set out its reasons and those reasons disclosed that it had
taken into account ‘matters not probative and therefore irrelevant and ha[d] misconstrued its function’.xlvii
This squarely takes us back to the question posed earlier: how to tell apart irrational reasoning that is exposed by adequate reasons; and rational reasoning
that is obscured by inadequate reasons.
Where lies the error?
Applicants contending that the error lies in the reasoning often invoke statutory commands to record ‘findings on material questions of fact’. These are
found throughout the Migration Act and the broader Commonwealth statute book.xlviii
This well-worn path follows Minister for Immigration and Multicultural Affairs v Yusufxlix (Yusuf), in which the High Court was called upon to interpret a similar obligation in s 430 of the Migration Act, viz:
Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:
Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based …
Chief Justice Gleeson said:
When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and
will be understood by a reader, including a judge reviewing the Tribunal’s decision, in the light of the statutory requirements contained in s 430.
The Tribunal is required, in setting out its reasons for decision, to set out ‘the findings on any material questions of fact’. If it does not set
out a finding on some question of fact, that will indicate that it made no finding on the matter; and that, in turn, may indicate that the Tribunal
did not consider the matter to be material.l
The plurality said:
The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may
reveal some basis for judicial review …li
Justice Gaudron said:
if in its written statement setting out its decision, the Tribunal fails to refer to or fails to make findings with respect to a relevant matter, it is
to be assumed, consistently with the clear directive in s 430 of the Act, that the Tribunal has not regarded that question as material. And depending
on the matter in issue and the context in which it arises, that may or may not disclose reviewable error.lii
All of their Honours emphasised the obligation to state ‘findings on material questions of fact’. For Gaudron J, this demands an inference that
anything not mentioned was in fact not material. For Gleeson CJ and the plurality, it supports — perhaps even compels — such an inference.
But it is a matter for the court, in all the circumstances, whether to draw it.
At this point, we might recall that to not draw a Yusuf inference is to take the approach of the High Court in Wingfoot and Palme by:
(a) finding that the obligation to give reasons has not been fulfilled;liii and
(b) asking what follows from this.
Theseare polar opposite approaches. The choice between them can affect the answer to the question of whether the decision is affected by reviewable error.
Yet neither in Yusuf nor subsequently has the High Court given any guidance as to when each approach is to be applied. What, then, are practitioners
and other courts to do when faced with a decision that appears to be amenable to either approach?
Before turning to FTZK, let us consider, as a comparator, the Full Federal Court case of Minister for Immigration and Citizenship v SZLSPliv (SZLSP). In that case, the applicant claimed that he would be persecuted as a Falun Gong practitioner if he returned to China. The RRT tested
this claim by asking the applicant a series of questions about Falun Gong. It later concluded that ‘[h]e answered none of them correctly’.lv However, it did not set out in its reasons what the questions were, what the applicant’s answers were or what it understood the correct answers to
be. Also, it did not identify the textbook that it used to test the applicant.
Justice Kenny clearly identified the choice between two competing inferences:
Had there been any ‘evidence or … other material’ on which the Tribunal’s finding regarding the first respondent’s knowledge was based, the Tribunal,
aware of its obligations under s 430(1)(d), would presumably have referred to it. The inference arises that the Tribunal’s decision was not based on
findings or inferences of fact grounded upon probative material and logical grounds. The question is whether the Court should draw this inference,
or the contrary inference that the Tribunal’s finding was logically based on probative material to which it has not referred in the reasons.lvi
Her Honour noted that, unlike Ex Parte Palme, which involved ‘a complete failure to give reasons’, ‘[t]he Tribunal here has provided
a written statement of reasons which to all appearances complies with s 430’.lvii Her Honour concluded:
the choice here is between an inference that material to which the Tribunal did not refer and which does not appear in the record was
not part of the material on which the Tribunal based its finding … and an inference that unidentified material, not mentioned in the Tribunal’s
written statement and not in the record, provided a basis for the Tribunal’s finding. Having regard to s 430, the first inference is self-evidently
stronger than the second …lviii
The emphasised references to the ‘record’ are interesting, for they take her Honour away from a strict Yusuf inference and some way towards the
uncontroversial proposition that it is an error of law to make a finding of fact for which there is no evidence.lix
Turning to FTZK, s 43(2B) of the AAT Act, which bound the AAT, contained an equivalent obligation to s 430 of the Migration Act. But FTZK was in a different category in that there was no doubt about the evidence base. There was clearly material before the AAT that was capable of supporting
consciousness of guilt reasoning. Indeed, there had been argument before the AAT as to whether such reasoning was to be preferred.lx
The majority, comprising Gray and Dodds-StreetonJJ, focused on what the evidence was objectively capable of showing:
On an objective basis, all of the findings of fact stated in [70]–[72] of the Tribunal’s reasons for decision are capable of showing that the applicant
fled China shortly after the criminal offences had been committed, and took steps to ensure that he would not be sent back to China. The Tribunal
clearly regarded these facts as demonstrating the applicant’s consciousness of his guilt of the criminal offences and desire to escape from the
consequences of his criminal conduct. It was unnecessary for the Tribunal to express this link in order to make it exist.On an objective basis, all of the findings of fact stated in [70]–[72] of the Tribunal’s reasons for decision are capable of showing that the applicant
fled China shortly after the criminal offences had been committed, and took steps to ensure that he would not be sent back to China. The Tribunal
clearly regarded these facts as demonstrating the applicant’s consciousness of his guilt of the criminal offences and desire to escape from the
consequences of his criminal conduct. It was unnecessary for the Tribunal to express this link in order to make it exist.…
The Tribunal’s failure expressly to state the basis of the relevance
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