AJY19 v Minister for Immigration

[2019] FCCA 3319

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJY19 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3319

Catchwords:
MIGRATION – Application for Safe Haven Enterprise Visa (SHEV) – evidence that applicant suffered serious harm before fleeing his country of origin – evidence that political reforms introduced since the applicant fled have resulted in a changed political and social environment in the country of origin – finding by Authority that the applicant would not suffer serious harm if returned to country of origin – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 5J, 36(2)(a), 36(2)(aa), 473CB.

Cases cited:

SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCAFC 10.

DAK16 v Minister for Immigration & Anor [2019] FCA 683.

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: AJY19

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 90 of 2019

Judgment of: Judge Egan

Hearing date: 15 November 2019

Date of Last Submission: 15 November 2019

Delivered at: Brisbane

Delivered on: 21 November 2019

REPRESENTATION

Solicitors for the Applicant: WJ Markwell & Associates Lawyers

Counsel for the Respondents: Mr A. Psaltis

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2. The amended application for review filed on 8 May 2019 be dismissed.

3. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 90 of 2019

AJY19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Ethiopia of Oromo ethnicity. He arrived in Australia as an irregular maritime arrival in June 2013.

2. The applicant applied for a Safe Haven Enterprise Visa (SHEV) on about 21 December 2016.

3. In May 2018 the applicant was invited to attend an interview with a delegate of the Minister.

4. On 5 December 2018 the delegate refused the applicant’s visa application for the SHEV.

5. On 10 December 2018 the delegate’s decision was referred to the Immigration Assessment Authority (the Authority) for review.

6. On 17 December 2018 the applicant’s representative provided further submissions to the Authority.

7. On 18 January 2018 the Authority affirmed the delegate’s decision to refuse the application for the visa.

8. On 1 February 2019 the applicant filed an application for review of the decision of the Authority.

9. On 8 May 2019 the applicant filed an amended application for review which particularised the grounds for review. The Grounds for Review of the amended application were as follows:

   “Grounds of application

   1.  [Not relied upon]

   2.   The Second Respondent has made a decision that is illogical and/or irrational.

   Particulars

   The Second Respondent has stated that there is no real risk that the Applicant would be rearrested or imprisoned and then suffer serious harm and/or torture, should he return to Ethiopia, as the Applicant was never engaged in armed struggle, or involved with any opposition group, prior to his arrest. The Applicant was not involved in any of the factors mentioned, but he was still arrested without charge and was subject to serious harm and/or torture, prior to his escape. It is irrational and illogical for the Second Respondent to state that it is now safe for the Applicant to return to Ethiopia.

   3. The Applicant refers to the Decision of the Second Respondent dated 18 January 2019 and marked with the letter “CTHEN 2” and annexed to the Affidavit of (the applicant), affirmed 31 January 2019 and filed 1 February 2019.

   4.  [Not pursued]”

10. An entry interview with the applicant was partially conducted on 2 July 2013. The interview was resumed on 25 July 2013. In answer to question [32] as to why he left Ethiopia, the applicant was recorded as responding as follows: [1]

    [1]        Court book (CB) page 252.

    “Briefly explain why you left Ethiopia

    - I left the country because the government doesn’t let me stay in the country. It was adversary to live in the country. I want to live a normal life. I couldn’t live there due to the problem imposed on me.

    Explain how the government affect your life

    - I have been put in jail for 2 years by the government from 2010. I have been physically abused by them.

    Briefly explain why the government put you in jail

    - I am a normal person. I don’t know why the government put me in jail. I lived in the area of the Aromo movement. They said I belonged to this group and arrested me.

    You said you were physically abused, briefly explain why

    - They took me some place for no reason and bashed me.

    When did this happen?

    - 2011

    What happened recently that made you leave?

    - I was in jail and I escaped. That’s why I came here.”

11. In answer to question [65a], under the heading “Previous Countries of Residence”, the applicant was recorded as responding as follows:

    ·    Dates of residence  2010 – 2011

    ·    Country resided in  Kenya

    ·    Did you enter that country legally or illegally?         Illegally

    ·    Describe how      I went there by car and entered by fake IDs

12. The applicant otherwise said that after travelling to Malaysia, he then went to Makassar in Indonesia where he boarded a vessel which ultimately landed in Darwin after seven days afloat.

13. At [3] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (the Act).

14. At [4] of its reasons, the Authority recorded that to the extent that a further submission provided to the Authority on 17 December 2018 engaged in argument, the Authority had had regard to it.

15. The applicant’s claims for protection were summarised by the Authority at [6] of its reasons as follows:

    ·“The applicant fears harm for reasons of his ethnicity as an Oromo;

    ·The applicant fears harm for reasons of his actual/imputed political opinions as a consequence of his support for the OLF and for reasons related to the appropriation of his family’s land on the outskirts of Addis Ababa;

    ·The applicant fears harm for reasons of his identification as a person who departed Ethiopia illegally;

    ·The applicant does not believe he can relocate to anywhere in Ethiopia to avoid the harm he fears.”

16. At [9] and [10] of its reasons, the Authority referred to the relevant Refugee Assessment and Well-Founded Fear of Persecution Criteria as respectively set out in ss. 5H(1) and 5J of the Act.

17. At [12] – [15] of its reasons, the Authority recorded the applicant’s relevant past history, including the applicant’s claims that government officials had killed his father in 2006, and that there had been past     attempts by government officials to confiscate the applicant’s family’s land.

18. At [16] – [17] of its reasons, the Authority referred to a UK Home Office Report of 2016 which recorded that societal discrimination in Ethiopia on account of ethnicity alone was unlikely to meet the threshold required to constitute persecution or serious harm. It also referred to a 2016 DFAT country report on Ethiopia which recorded that whilst the government actively targeted Oromos with links – either real or perceived - to the OLF, there was no credible evidence that that extended to people being targeted solely because of their Oromo ethnicity in the absence of any other political involvement.

19. At [19] and [20] of its reasons, the Authority recorded that the applicant had claimed that his family’s house and land had been taken by the government with the assistance of the police, his having also stated at his protection interview on 19 September 2018 that 25 family homes in his area had been appropriated, and that he had been arrested together with 10 other men. It recorded that the applicant had said that because he worked as a truck driver he was able to pass messages and distribute pamphlets to members of the OLF political group, but that the government had found out about that, and had had him imprisoned whereupon he was beaten and tortured.

20. At [21] of its reasons, the Authority accepted that the applicant’s family’s house and land had been appropriated, that he had been arrested, and that whilst in prison he had been interrogated about OLF activities and his suspected involvement in them. It recorded that country information confirmed that during 2011 a significant number of people had been arbitrarily arrested on suspicion of being involved in OLF protests and activities.

21. At [23] of its reasons, the Authority accepted the applicant’s evidence that he was not a member of the OLF,  and that he had discussed his concerns about the treatment of Oromo people with others in the community. It further accepted that as a truck driver he had moved about the local communities, but because the applicant’s statutory declarations made no mention of the applicant’s alleged activities concerning his handing out of OLF pamphlets or the passing out on of messages to OLF members – things only raised at the protection interview – it was not prepared to accept that the applicant was actively involved in any OLF activities. Notwithstanding that, the Authority accepted that the applicant had come under suspicion for supporting or being involved with the OLF, and that he had been arbitrarily arrested and detained by reason of such imputed political opinion.

22. At [24] of its reasons, the Authority accepted that the applicant had been arbitrarily detained and imprisoned without being formally charged with an offence or sentenced upon conviction.

23. At [25] of its reasons, the Authority accepted that the applicant had been physically abused and mistreated during his period of imprisonment in circumstances where, at [29] of its reasons, the Authority accepted that such treatment constituted serious harm.

24. At [27] of its reasons, the Authority found that the applicant was able to escape Kaliti prison at the end of 2011 with the assistance of a friend who had paid a bribe to a staff member of an outside hospital.

25. At [30] of its reasons, it was noted by the Authority that in February 2018, President Abiy Ahmed had promised to ensure respect for the human rights of the people of Ethiopia. It was noted that there had been numerous media reports concerning the new president’s political reforms, including the release of political prisoners, the lifting of a state of emergency which had been imposed in October 2016, the removal of the designation of the OLF as a terrorist organisation in July 2018, and the provision of an amnesty to individuals and groups who had been involved in armed struggle against the government. It was also noted that in response to such conciliatory moves, the OLF had declared a cease-fire, and that many OLF leaders had returned to Ethiopia from Eritrea in July and August 2018 without any apparent negative consequences regarding their safety.

26. At [31] of its reasons, the Authority found as follows:

    “31. Given leaders of the OLF and other opposition groups and individuals who had been involved in armed struggle against the government have been provided with amnesty and returned safety to Ethiopia, and the fact that I have found the applicant himself was never engaged in armed struggle or activity involved with any opposition group in Ethiopia prior to his arrest and imprisonment, I am satisfied, even if the applicant is identified as having escaped from prison, as no charges were laid and he was never sentenced by the courts there is no real risk he will be rearrested or Imprisoned on his return to Ethiopia, consequently, I am satisfied there is no real chance the applicant will suffer serious harm for reasons of his imputed or actual political opinion and/or his Oromo ethnicity if he returns to Ethiopia now or in the reasonably foreseeable future.”

27. At [32] of its reasons, it was recorded that DFAT reports were to the effect that Ethiopian authorities typically welcomed voluntary returnees to Ethiopia who were not outspoken opponents of the government. The Authority was satisfied that the applicant was not such an outspoken opponent, and that because he had never been a political activist in Ethiopia, there would be no real chance that he would be identified as such upon his return.

28. At [33] of its reasons, the Authority recorded that though there had been some reports of Ethiopian authorities having monitored voluntary returnees for a period of time following their return, DFAT was not aware of any credible reports of voluntary returnees facing problems stemming from their status as failed asylum seekers in circumstances where they were not active opponents of the government.

29. At [34] of its reasons, the Authority found that having reviewed all of the information put before it, and after having considered the applicant’s claims, it was not satisfied that there was a real chance of the applicant being seriously harmed by the Ethiopian authorities, or by any other group or person, by reason of the applicant’s actual or imputed political opinion, ethnicity, return as a failed asylum seeker or the cumulative effect of all of those factors.

30. The Authority found that the applicant did not meet the requirements of the definition of refugee under s. 5H(1) of the Act, and that the applicant did not meet the relevant s. 36(2)(a) criteria.

31. At [36] – [38] of its reasons, the Authority set out the relevant complimentary protection assessment criteria.

32. At [40] of its reasons, the Authority found that given the country information (earlier referred to in its reasons) concerning the political reforms and changes which had taken place under the new president and government, it was satisfied that there was no real risk that the applicant would be adversely identified as a political activist, or that there was any real risk that the applicant would suffer significant harm upon his return to Ethiopia. It was also satisfied that the applicant would not be arbitrarily deprived of his life, and that the death penalty would not be carried out on him. It further was satisfied that the applicant would not be subjected to torture, cruel or inhumane treatment or punishment, or degrading treatment or punishment if returned to Ethiopia at the time of the decision, or in the reasonably foreseeable future, notwithstanding its acknowledgment that the applicant had suffered arbitrary detention and mistreatment in 2011.

33. At [41] – [42] of its reasons, the Authority found that it was not satisfied that there was a real risk that the applicant would suffer significant harm on his return to Ethiopia for any reason.

34. In those circumstances, the Authority found that the applicant did not meet the relevant s. 36(2)(aa) complimentary protection criteria.

35. Much was made by Mr Markwell, who appeared on behalf of the applicant, concerning the applicant’s past torture at the hands of the Ethiopian authorities. The Authority made a factual finding that it was satisfied that similar harm would not befall the applicant should he be returned to Ethiopia. That finding was based upon country information relied upon by it relating to the reforms which had been introduced by the new president, and the new government of that country. This Court is not permitted to undertake a merits review of factual findings so made by the Authority.

36. As to the applicant’s claim that the Authority acted irrationally or illogically, when discussing whether jurisdictional error had been demonstrated where some factual findings had been made which were either irrational or illogical, Wigney J in SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210 said at [52] and [55]:

    “[52] As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or rationality 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 and Citizenship (2012) 202 FCR 1 (at [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.

    …

    [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].”

37. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] and [11] the Court said as follows:

    “[10] In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal.  To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.

    [11] The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”

1. If in any case it is asserted that circumstances in the country of origin have deteriorated since the making of a relevant decision to refuse to grant an applicant a protection visa, that is of itself not a reason for a court finding that the decision made by the Tribunal or Authority constituted a jurisdictional error. As was said by Kenny J in DAK16 v Minister for Immigration & Anor [2019] FCA 683 at [53] as follows:

   “[53] I accept that, as in effect the Minister submitted, the existence of changed circumstances since the Tribunal’s decision does not demonstrate jurisdictional error on the part of the Tribunal and does not provide a basis for setting aside the Tribunal’s decision. As the Full Court (Gray, Carr and Goldberg JJ) noted in Soudakov v Minister for Immigration and Multicultural Affairs [2002] FCAFC 23 at [21], “[j]udicial review of the Tribunal’s decision must be conducted on the basis of the factual material before the Tribunal, not on the basis of facts that have come to light, or have occurred, since the decision was made”: see also NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [15] (Gray, Tamberlin and Lander JJ); AAW16 v Minister for Immigration and Border Protection [2017] FCA 49 at [31] (Bromwich J); Applicant A148 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1416 at [11] (Mansfield J).  It is, however, useful to note that there are administrative procedures and statutory powers that enable changes in the situation in Pakistani Kashmir and the impact on the appellant to be assessed before any steps are taken to remove him involuntarily from Australia.”

2. It was pointed out by Kenny J in DAK16 that by the relevant Policy and Advice Manual (PAM 3) a removal officer must first refer any involuntary removal case to the International Obligations section of the Department for the purpose of its assessing risk factors to any failed asylum seeker. Such procedure is designed to ensure that Australia adheres to its non-refoulement obligations prior to any removal of a person to their country of origin. At [50] – [52] inclusive of His Honour’s reasons, it was said:

   [50] The PAM3 (relevant parts of which were annexed to Mr Tan’s affidavit) specifies that removal officers must refer involuntary removal cases to the International Obligations Section of the Department for a PRC where the person engages one of the risk factors outlined in the PAM3. Under the heading, “The risk factors”, the PAM3 relevantly states that:

   The risk factors, which may apply whether the person is being removed voluntarily or involuntarily, are:

   ·Risk factor 1: High risk country or protection claims not previously assessed …

   ·Risk factor 2: Criminal history in Australia

   ·Risk factor 3: Unfinalised criminal history in Australia or in the country of return

   ·Risk factor 4: Country of return has taken an adverse interest in the person

   ·Risk factor 5: Other circumstances in which protection or humanitarian issues have arisen

   [51] Without commenting on the availability of the other risk factors, at least risk factor 5 appears to be potentially applicable in the present case. The PAM3 specifies that an example of a situation engaging risk factor 5 “is where the person’s proposed country of return is experiencing a humanitarian crisis such as civil unrest, or war, that could lead to a risk of harm if the person is returned”. Removal officers must consult the relevant Onshore Protection office to clarify whether conditions in the country of return warrant referral for a PRC. If a person engages risk factor 5, an Onshore Protection officer “must consider whether there is anything in the person’s circumstances and country information that requires further consideration of the case through a protection assessment”.

   [52] Mr Tan also deposed that, where a PRC identifies a risk that Australia may breach its non refoulement obligations as a consequence of the person’s removal, the case must be referred for further consideration of Australia’s protection obligations or case resolution mechanisms, including possible referral to the Minister for consideration of relevant public interest powers. Where a person raises new claims following a refusal of a protection visa application, removal officers are instructed in the PAM3 not to make a referral for a PRC, but to refer such claims to the relevant Ministerial Intervention Unit for further consideration.”

3. The Authority closely and carefully considered the applicant’s claims, and all of the relevant documentation before it. It cannot 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, Kiefal 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.”

4. Further it cannot be said that no other rational or logical decision maker could not have made the same decision as did 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.”

5. Neither could the decision 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.”

6. The applicant has not demonstrated jurisdictional error on the part of the Authority.

7. The amended application for review is without merit and is dismissed.

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

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 21 November 2019