Aex19 v Minister for Immigration and Anor (No.2)

[2020] FCCA 2615

FEDERAL CIRCUIT COURT OF AUSTRALIA

AEX19 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2020] FCCA 2615

Catchwords:
MIGRATION – Application for Safe Haven Enterprise Visa – adverse credibility findings against applicant – claims found to be implausible – no jurisdictional error on the part of the Authority – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 5J, 473CB, 473DD(a).

Cases cited:

AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261

FCR 503.

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Applicant: AEX19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 18 of 2019

Judgment of: Judge Egan

Hearing date: 11 September 2020

Date of Last Submission: 11 September 2020

Delivered at: Brisbane

Delivered on: 18 September 2020

REPRESENTATION

Solicitors for the Applicant: In person

Solicitors for the First Respondent: Ms Milutinovic of Sparke Helmore

Second Respondent: Submitting appearance save as to costs

ORDERS

1. The Originating Application for Review filed on 17 January 2019 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

ADG 18 of 2019

AEX19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Sri Lanka who arrived on Cocos Island as an unauthorised maritime arrival on 18 October 2012. On 11 January 2013, the applicant attended an entry interview. On 6 July 2016 the applicant applied for a Safe Haven Enterprise Visa (‘SHEV’).

2. On 19 January 2017, a delegate to the Minister refused to grant the visa application. The matter was referred to the Immigration Assessment Authority (‘the Authority’) for review of the decision of the delegate.  

3. On 9 February 2017, the applicant provided written submissions and supporting documents to the Authority. On 7 March 2017, the Authority affirmed the decision of the delegate. That decision was quashed by consent and remitted to the Authority for reconsideration. On 27 November 2018, the applicant provided further written submissions and supporting documents to the Authority. On 5 December 2018, the applicant provided English translations of documents previously lodged, and on 7 December 2018 the applicant provided a statutory declaration. On 2 January 2019, the Authority again affirmed the decision of the delegate.

4. On 17 January 2019, the applicant filed an Originating Application for Review, the ground of which was as follows:

   “Grounds of Application

   Ground 1

   The IAA’s findings below are illogical because it’s findings are against the evidence presented.

   Particulars

   1. The son was not killed (paragraph 34 of the IAA’s decision) - when the photos of the applicant’s son’s body in the coffin was clear evidence of the son’s death.

   2. The Applicant has not complained to the Sri Lankan police (paragraph 34 of the IAA’s decision) - when the Applicant’s affidavit dated 7 May 2018 in front of the Honorary Consul of Sri Lanka in Adelaide requests specifically to hold an impartial inquiry into the death of the applicant’s son.

5. At [4] of its reasons, the Authority recorded that it had had regard to material provided to it by the Secretary of the Department pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (‘the Act’).

6. At [13] of its reasons, the Authority set out the relevant refugee assessment criteria pursuant to the provisions of s. 5H(1) of the Act. At [14] of its reasons, the Authority set out what constituted a well-founded fear of persecution pursuant to the provisions of s. 5J of the Act.

7. The applicant’s claims for protection were summarised by the Authority at [12] of its reasons as follows:

   ·“He is a Sinhalese Catholic who grew up in the North West Province in Sri Lanka.

   ·His father has BAD and did not have a permanent job. Because of his mental health problems the applicant’s father is regularly involved in disputes with neighbours. This resulted in conflict with neighbours in 2008 and the applicant was held by the police for a day after defending his father; no charges were laid and the applicant has not advanced any claims to fear harm as a result of this incident.

   ·He is a fervent Catholic and when at school he attended mass daily. He did not encounter personal problems as a Catholic in Sri Lanka, but his village was attacked around 1999-2001 by armed Buddhists who wanted the Christians to leave the area. There was further conflict in 2010-2011 and the applicant stated that he got involved in the problem by trying to find a solution.

   ·He was involved with the Communist Party and the United National Party (UNP) from 2001-2003.

   ·His father sexually assaulted the applicant’s sister when she was young. The applicant believes this resulted in a pregnancy that was aborted. He was angry with his father and fought with him, and on one occasion threw a knife at him. The applicant tried to commit suicide. On the advice of his uncle the then teenaged applicant took her to a convent for her safety. His father resented this and threatened him.

   ·His eldest brother is a drug user and the two had a difficult relationship; on one occasion his brother threw a chair at him. His brother asks him for money and he fears that if he returns to Sri Lanka his brother will be violent to him or kill him.

   ·His grandmother lived with him and his family, and remained living with his wife after the applicant left Sri Lanka in 2012. She died in 2013 and the applicant believes his wife was responsible for her death as she no longer wanted to care for her. On 8 November 2016, the applicant wrote to the [Town A] Police Station to express his concerns about his grandmother’s death.

   ·Since he lodged his SHEV application, his marriage has broken down. He initially did not believe his brother’s comments that his wife was seeing other men, but he now believes that she has had illicit affairs and he has commenced divorce proceedings. Her brothers have threatened him as a result and told him they have underworld contacts and will arrange to abduct him at the airport and kill him. The applicant lodged a complaint about these threats with [Town A] Police on 14 November 2016.

   ·He left Sri Lanka illegally in October 2012. At the time he had debts and was threatened that land would be taken from him for non-payment of his debts.

   ·He has been threatened by [CJ] (a thug with gang, police and political connections) who is in a relationship with his wife. [CJ] has murdered his son.

   ·He cannot relocate to another part of Sri Lanka as it is a small country. He cannot access the protection of the authorities as Sri Lanka is a corrupt society.”

   [Names of towns and individuals omitted]

Ground of Review

1. The sole ground of review relied upon by the applicant seeks to import to the Authority illogicality in how it arrived at its findings at [34] of its reasons:

   a)That it did not accept that a person named ‘[CJ]’ or any gang member or anyone else had threatened the applicant or that the applicant’s wife/former wife had used such people to threaten him;

   b)That it did not accept that the applicant’s son had been electrocuted, killed or murdered by the said CJ or anyone else;

   c)That it did not accept that the applicant had complained to the Sri Lankan police about the above claimed events, nor that the Sri Lankan authorities had conducted any investigation about such matters or made any findings about them;

   d)That it did not accept that the applicant was of any adverse interest to CJ or any gang or anyone else in Sri Lanka on account of the above claims.

2. First, at [9] of its reasons, the Authority carefully considered the applicant’s claims that CJ had killed the applicant’s son. The applicant’s allegations were largely based upon conjecture on his part. The Authority was only required to consider clearly articulated argument and claims which clearly emerged from the evidence. As was said by Collier, McKerracher and Banks-Smith JJ in AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261 FCR 503 at [18]:

   “[18] It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:

   ·The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

   ·The Tribunal is only required to consider such claims where they are either:

   (a)  the subject of substantial clearly articulated argument, relying on established facts; or

   (b)  clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) per Barker J (at [67]).

   ·These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

   … A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).

   (Emphasis added.)

   ·As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

   (a)  such a finding is not to be made lightly (NABE at [68]);

   (b)  the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

   (c)   to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

   37 While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

   38 Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

   (d)  while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR77 per Flick J (at [21]); and

   (e)   understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.”

3. At [10] of its reasons, the Authority noted that though the applicant had provided information, including documentary information, which post-dated the delegate’s decision, it was significant information for the purpose of assessing the applicant’s claims that he was owed protection. The Authority considered that there were exceptional circumstances justifying its consideration, and it was recorded that the Authority had had regard to it. At [11] of its reasons, the Authority recorded that it had obtained the latest DFAT report relating to Sri Lanka dated 23 May 2018, finding that there were exceptional circumstances justifying its consideration pursuant to the provisions of s. 473DD(a) of the Act.

4. Second, at [35] of its reasons, the Authority recorded that it had taken into account the submitted documentation, the applicant’s affidavit, the applicant’s lawyer’s letter to the police, the police letter and report, the photographs of the applicant’s child, and the photograph of the purported death notice. The Authority recorded that it had given such documentation only limited weight, finding that such documents did not overcome significant and fundamental concerns about the applicant’s credibility. It referred to photographs as being unclear and otherwise that there was a lack of attribution to articles contained on websites pointed to by the applicant as being supportive of his claims.

5. The alleged involvement of CJ in the death of the applicant’s son, and the Authority’s adverse findings on credibility against the applicant, were carefully recorded at [33] of the reasons of the Authority as follows:

   “[33] The applicant has claimed that [CJ] was having an affair with his wife and that he left a live wire exposed at the back of the family house with the knowledge that the applicant’s son would go in there to play therefore coming into contact with the exposed live wire. He has claimed that his son died of electrocution as a result on 26 February 2018. He also claims that [CJ] is a thug who has connections with gangsters, the police and politically connected people. He claims that [CJ] called him in April 2017 and said that if ever returned to Sri Lanka, he would kill him. He claims that through a lawyer in Sri Lanka he requested a further police investigation and that the police have stated that their investigations have revealed that his son was murdered. I have considered all of the documentary evidence submitted to support these claims, but I find these claims to be farfetched, implausible and not credible. I do so for the following reasons:

   oThe applicant has claimed that on 27 February 2018, a friend called him and told him that his son had died from electrocution at home and the rumours were that [CJ] killed him. Other than this very flimsy evidence, there is no apparent reason why the applicant (domiciled in Australia for a long period and never having met [CJ] would have reasonably suspected [CJ] of such an act and made such a complaint. I note the applicant’s affidavit of 7 May 2018 and the lawyer’s letter of 16 July 2018 contains no evidence to support such a suspicion. Given this lack of evidence which was presented to them, I also do not consider it plausible or credible that the Sri Lankan police in Colombo would have launched a further investigation given the matter had been investigated by the [Town A] police.

   oI consider the applicant’s claim that if [CJ] is charged with murder that he will be one of the key witnesses to the case, to be implausible far-fetched and not credible as the applicant has been in Australia for the last six years and could not provide evidence of any probative value of the circumstances of his son’s death.

   oThe copy of the police report, dated 24 September 2018, states that it has been revealed that the murder has been committed by an underworld gang operating in Sri Lanka and the cause of this dispute was due to a long drawn dispute with the applicant. However, the applicant had been living in Australia for over five years and was seeking protection to remain in Australia and had begun divorce proceedings against his wife. I find it implausible, far-fetched and not credible that [CJ] and any gang he was associated with, would have had been in any dispute with the applicant or have been motivated to harm him and I note no particular reason (other than that the applicant had been bothering his wife) has been advanced as to this. I do not find it plausible or credible that [CJ] would have rang him in Australia to threaten him simply because he was bothering his wife.

   oI further find it implausible, far-fetched and not credible that [CJ] would have murdered the applicant’s son due to a dispute with the applicant who had been living in Australia for many years and there is no other apparent motivation for such an extreme action by him.

   oI note the submitted police report of 24 September 2018 states that the investigations reveal that this is a murder that has been committed by an underworld gang. I do not find it plausible or credible that a police report would reach such a conclusion without providing some indication of the evidence that supports such a conclusion and I do not find it plausible or credible that such a report would refer to a “powerful underworld gang” without giving any further details of who this gang were.”

   [names of towns and individuals omitted]

6. At [7] of its reasons, the Authority recorded that the delegate, at the SHEV interview, emphasised to the applicant that it was important to put all of his claims before the Department. It then dealt with credibility issues and made adverse findings against the applicant as follows:

   “[7]…At his SHEV interview, the delegate informed the applicant of the importance of putting his claims forward to the Department and warned him that he may not have a further opportunity to do so as the IAA can only accept new information in exceptional circumstances. The delegate questioned the applicant in detail about the situation with his wife, the claimed affairs and the threats from her brother and I am satisfied that the applicant had the opportunity to advance these claims to the Minister. That he did not do so, casts significant doubt on the credibility of these claims and I consider them to be lacking in probative value. The applicant did not provide any details about this man who his wife was apparently living with at the time and who he claims was making threats against him. I am not satisfied that any exceptional circumstances exist that justify considering this new information.”

7. At [36] of its reasons, the Authority found that there was not a real chance that the applicant would suffer serious harm as a result of his claims involving alleged threats by CJ, his wife/former wife, any gang member, or any other person in Sri Lanka.

8. When considering the applicant’s claims in Ground 1 of the Application for Review, it could not be said that the Authority, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] - [27], where it was said:

   “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

   [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

   [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

1. Further it cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. 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.

   …

   [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

2. Neither could the decision of the Authority be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

3. The Authority did not fall into jurisdictional error in its consideration of the applicant’s articulated claims. There was no basis for the claim that the Authority acted illogically. It is a high bar which must be met for there to be a finding of illogicality on the part of a decision maker. In CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60] the Full Court of the Federal Court (McKerracher, Griffiths and Rangiah JJ) set out the relevant principles relating to irrationality and illogicality at [60] – [61] as follows:

   “[60] In Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, Wigney J collected the following relevant principles (at [52] and [54]-[56]):

   52 As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

   …

   54 … The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].

   55 Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

   56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

   [61] For present purposes, there is a difficulty for the appellant in demonstrating “extreme” illogicality. Even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality, according to SZMDS (at [124]). Although the appellant contends that the implausibility and inconsistencies were only “minor”, his Honour disagreed (at [26]-[27]).”

4. At [48] of its reasons, the Authority found that the applicant did not meet the requirements of the definition of refugee as provided for in s. 5H(1) of the Act.

5. At [49] – [52] of its reasons, the Authority dealt with whether the applicant met the criteria for complementary protection under s. 36(2)(aa) of the Act.

6. The Authority made its findings based upon a consideration of all of the applicant’s claims. Additionally to its rejection of the applicant’s claims under Ground 1 of the Application for Review, the Authority also considered the applicant’s claims relating to claimed discrimination and violence at the hands of Buddhists, the applicant’s alleged political involvement with communism, alleged threats arising out of land disputes, neighbour disputes and threats from his brothers and brother in-law, as well as the applicant’s claims about his facing harm by reason of his being a failed asylum seeker. The Authority dealt extensively with each of such claims, finding that there was no protection obligation owed to the applicant as a result of those claims.

7. The applicant has failed to establish jurisdictional error on the part of the Authority.

8. The Application for Review is without merit and is dismissed.

9. The Court will hear the parties as to costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 18 September 2020