Akr23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 134
•20 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AKR23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 134
File number: PEG 22 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 20 February 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to give sufficient weight to evidence or information before it – whether the Tribunal failed to consider the applicant’s circumstances – whether the Tribunal’s decision was illogical, irrational or unreasonable – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 476 & 499 Cases cited: Abebe v Commonwealth of Australia [1999] HCA 14
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
Craig v State of South Australia (1995) 184 CLR 163
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC l
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Lee v Minister for Immigration and Multicultural Affairs [2005] FCA 464
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 5 February 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms L Helsdon Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 22 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AKR23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
20 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Malaysia (Court Book (“CB”) 15). He arrived in Australia in May 2017 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (CB 40).
On 6 July 2017, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-36 & 40). In that application, the applicant claimed that his “friend” had suggested that he come to Australia and that he had “no job” and could not support himself or his family. He also claimed to have left Malaysia because of bad economic and political issues (CB 32-33).
On 4 September 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 40-48). The delegate had considered the applicant’s “migration history and the vague claims made in [his] visa application” and found that the applicant did not “face a real chance of persecution for one or more of the reasons mentioned in paragraph 5J(1)(a) of the Migration Act 1958 (Cth) (the “Act”) (CB 41). In relation to the complementary criteria, the delegate determined that the “economic climate in Malaysia affect[ed] everyone” and that the “harm the applicant may suffer on [his] return [did] not amount to significant harm” (CB 42).
On 15 September 2017, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 49-50).
On 11 May 2022, the Tribunal invited the applicant to provide additional information to it by completing an attached “Applicant information form (s.424(2) response” form (the “information form”) (CB 54-56). The Tribunal asked the applicant to provide a response (or seek an extension of time within which to respond) by 25 May 2022 (CB 55).
On 12 May 2022, the applicant requested an extension of time (until 1 June 2022) to respond to the Tribunal’s request (CB 57). The Tribunal granted the applicant’s request and notified him accordingly (also on 12 May 2022) (CB 58-59).
On 30 May 2022, the applicant returned the completed information form to the Tribunal (via email) (CB 60-68). In that information form, the applicant provided the following additional information (without alteration) (CB 63):
The reason I made my own claim for protection is I’m insecure I don’t have a job in my own country. I can’t support my family if I’m going back as I am the breadwinners. My mother is a single mother, I’m the one who support my mother since my father passed away. Since 2017 until February 2022, I’m the one who paying for my father medical bill. He went to the hospital for a dialysis treatment 3 times a week. I also need to pay for my House & Car loan.
Since Covid happened, the situation getting worst in my country. There’s a several total lockdown and most of the business were closed down. Most of the people become jobless. The economy now is going down and cost of living getting higher. In this moment, there’s a crisis about less supply of food.
I have a full time job, I’m working with the same company since 2019 and I’m comfortable with it. My current financial status are strong, I believe I can sustained to pay all my commitment and support my family. I have a good record in the company and I also have fully support from the management. Here I attached the reference letter from the company for your kind perusal.
I’m a tax payers since 2019, I made a contribution to the country. I’m following the rules & regulation by the government. For your information, on this incoming June will be my third year as a full time in the company. I’m eligible for an employer sponsored visa. My employer is eligible and able to nominate me as a wood machinist. This occupation is currently eligible for subclass 482 (short term stream). It’s gonna give a great benefit for my future.
Hereby I attached details for your kind perusal.
The applicant also provided media articles and documents from his employer to the Tribunal in support of his review application (CB 69-82).
On 25 November 2022, the Tribunal invited the applicant to attend a hearing before it on 6 February 2023 (CB 83-87).
On 25 January 2023, the applicant provided the Tribunal with further supporting documents and submissions in support of his review application (CB 92-112).
On 6 February 2023, the applicant attended a hearing before the Tribunal (CB 113-115). He was assisted at that hearing by a Malay interpreter (CB 113).
On 13 February 2023, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 118-134).
On 17 February 2023, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Act.
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision in this matter is 17 pages long and spans 93 paragraphs (CB 118-134). The final three pages include extracts of relevant legislative provisions (CB 132-134).
The Tribunal began by explaining that the applicant applied for the visa on 6 July 2017 and that the Minister’s delegate had refused to grant the applicant the visa on 4 September 2017. The Tribunal confirmed that the applicant appeared before the Tribunal on 6 February 2023 to give evidence and present arguments and noted that he was assisted by a Malay interpreter at that hearing (at [1]-[3]).
The Tribunal then outlined the legislative criteria for the grant of a protection visa, summarising the requirements of the refugee criterion outlined in s 36(2)(a) of the Act, the relevant definitional provisions in ss 5H(1)(a)-(b), 5J(1), 5J(2)-(6) and 5K-LA of the Act and the complementary protection criterion set out in s 36(2)(aa) of the Act. The Tribunal also explained that, in assessing the applicant’s protection claims, and in accordance with Ministerial Direction No. 84 (made under s 499 of the Act), the Tribunal had had regard to the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (“DFAT”) (at [4]-[9]).
The Tribunal went on to outline the applicant’s background and migration history (at [11]-[13]) and detailed the claims set out in his protection visa application – noting, in particular, that the applicant had claimed that:
(a)he left Malaysia because of political and economic issues and feared that if he returned, he would be unable to support himself or his family (at [14]);
(b)he had experienced harm in Malaysia because he had no job (despite applying for many), could not support himself or his family and a friend had suggested that he come to Australia (at [15]);
(c)the authorities in Malaysia could not protect him from the harm because Malaysia has bad economic and political issues (at [16]); and
(d)he could not relocate to any other part of Malaysia because the political and economic issues affect the whole country (at [17]).
The Tribunal then detailed the application before it, the correspondence between the Tribunal and the applicant, submissions provided by the applicant and supporting documents submitted in support of the applicant’s review application with the Tribunal (at [19]-[27]).
The Tribunal also set out (in detail) the oral evidence given by the applicant at the hearing before it (at [28]-[53]).
The Tribunal confirmed that there was no issue as to the applicant’s identity or nationality and accepted that the applicant was a national of Malaysia. The Tribunal also confirmed that there was no evidence before it that the applicant had any right to enter or reside in any other country (at [55]-[56]).
The Tribunal noted that the applicant had told the Tribunal (at the hearing before it) that he had never been a member of any political party and that his reference to “political issues” in Malaysia was “in reference to him ascribing blame to politicians and the political system for the state of the economy”. On the basis of those statements, the Tribunal determined that the applicant had not made any claims that he feared harm if he returned to Malaysia for reasons of his actual or imputed political opinion and no such claims arose from the facts before it (at [58]-[59]).
The Tribunal acknowledged that the applicant had claimed that he had suffered financial difficulties in the past in Malaysia but noted that, at the hearing before it, the applicant had indicated that the income he had earned in Malaysia was sufficient to sustain himself but he had suffered financial issues because his income was insufficient for him to be able to afford to buy a car. The Tribunal found that the applicant was able to obtain regular employment in the past in Malaysia and that the income he received from this employment was sufficient to enable him to sustain himself in Malaysia (at [60]-[61]).
The Tribunal explained that, at the hearing before it, the applicant had indicated that one of his reasons for leaving Malaysia was that his brother had owed money to loan sharks. The Tribunal noted, however, that the applicant had not raised that claim in his visa application or in his two submissions to the Tribunal. The applicant explained that he had not done so because of “privacy issues”. The Tribunal noted that when it asked the applicant what had changed to enable him to give that evidence at the hearing, the applicant did not offer any explanation and indicated that he did not want to answer the question. Based on the applicant’s lack of explanation for the delay in raising the claim and the applicant’s “vague and undetailed evidence” about the claim, the Tribunal did not accept that it ever occurred. The Tribunal also found that there was no real chance that the applicant would suffer any harm for reasons of any alleged loans that his brother may have taken out with loan sharks (at [62]-[67] & [71]).
The Tribunal accepted that the applicant’s late father and his brother had outstanding bank loans with legitimate banking institutions in Malaysia and that the applicant may feel some moral obligation to assist his family with any outstanding debts. However, the Tribunal did not accept that the applicant had any legal obligation with respect to those loans or that any default by his family members on such loans would enliven any protection-related claims for the applicant (at [68]).
The Tribunal noted that the applicant had claimed to fear harm on the basis of an outstanding personal loan with the Commonwealth Bank of Australia (“CBA”). The Tribunal accepted that the applicant had an outstanding loan with the CBA, that if he departed Australia it was highly unlikely that he would continue to repay that loan and that he would therefore default on it. However, the Tribunal did not accept that any such loan or any future default would give rise to any claims for protection under either s 36(2)(a) or s 36(2)(aa) of the Act (at [69]-[70]).
The Tribunal considered country information (including relevant DFAT reports) and the evidence submitted by the applicant. The Tribunal accepted that the applicant might not be able to earn as much money in Malaysia as he could earn working in Australia and that what he would earn may mean that he would not be able to live the lifestyle that he desired. However, it noted that the applicant had stated that he was able to obtain employment in the past in Malaysia and that the income was sufficient to sustain himself. On that basis, the Tribunal found that he would be able to do so in the future (at [72]-[78]).
The Tribunal found that the economic circumstances leading to a lower income for the applicant in Malaysia than he could earn in Australia did not amount to serious harm for the purposes of s 5J(4)(b) of the Act (having regard to the non-exhaustive definition of serious harm pursuant to s 5J(5) of the Act) (at [79]).
The Tribunal also referenced the applicant’s “vague statement” in his written submission (dated 30 May 2022) that there was “an emerging crisis in Malaysia” regarding food supply and a related “comment piece” (dated 20 May 2022). Based on the vague evidence before it, and based on the fact that the applicant made no claims in either his submission or at the hearing about how any speculative future food crisis may impact upon him, the Tribunal found that the vague statement made by the applicant about less supply of food did not give rise to any claims for protection under either s 36(2)(a) or s 36(2)(aa) of the Act (at [80]-[81]).
The Tribunal noted that the applicant had not made any claim (and none arose on the facts before it) to fear harm based on his Malay ethnicity or Muslim religion. Having considered the applicant’s claims (individually and cumulatively), the Tribunal was “not satisfied that the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion” (at [82]-[83]).
The Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act. Having concluded that the applicant did not meet the refugee criterion, the Tribunal considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal reiterated its earlier findings and stated that it was also not satisfied that there were substantial grounds for believing that there was a real risk the applicant would suffer significant harm if he were to return to Malaysia (at [84]-[90]).
The Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [93]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 17 February 2023 contains one ground of review as follows (without alteration):
The Tribunal failed to give sufficient weight to the impact of COVID-19 on the Applicant’s ability to find employment in Malaysia and support himself financially. The Tribunal did not consider the Applicant’s specific personal financial circumstances.
On 26 May 2023, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, any additional evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 17 February 2023, a Court Book numbering 136 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 17 January 2024 and an affidavit of service of Aatika Ismailjee affirmed on 22 January 2024 (and filed on 25 January 2024).
The applicant appeared before this Court without legal representation but with the assistance of a Malay interpreter. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his matter.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
The Court also explained that it cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa that he now seeks even if the Court disagrees with the Tribunal’s ultimate findings. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, the applicant stated that he could not go back to his country. He stressed that he has “financials” here in Australia (explaining that he has a loan and that he is supporting his family) and that the COVID-19 situation and the financial circumstances in his home country “are very bad”.
The applicant also told the Court that he wanted to provide “new evidence” but would “do so at a later date”. When the Court asked the applicant what that additional evidence related to, the applicant explained that he is currently working in the oil and gas industry and that he had spoken with both the human resources department and a migration agent (through the company) and that they told the applicant that they would like to sponsor him to work for them “permanently”. The applicant said that “they need to wait for a further 11 months”, noting that they needed to wait until he had been working for the company for two years before they would be able to sponsor him for a “skilled visa”. The Court explained to the applicant that that sort of evidence (being evidence relating to a possible new or future visa application and evidence which was not before the Tribunal) could not assist him in relation the visa application that was currently the subject of the review before the Court as it did not address the issue of jurisdictional error in the Tribunal’s decision.
The applicant’s oral submissions, to the extent that they relate to the COVID-19 pandemic and the economic circumstances in Malaysia, will be addressed below.
CONSIDERATION
The applicant’s ground of review states (without alteration):
The Tribunal failed to give sufficient weight to the impact of COVID-19 on the Applicant’s ability to find employment in Malaysia and support himself financially. The Tribunal did not consider the Applicant’s specific personal financial circumstances.
Insofar as the applicant claims that the Tribunal failed to give sufficient weight to particular evidence or information before it, the Court disagrees.
It is well established that the Tribunal is entitled to accept, reject or give such weight to the evidence submitted as it deems appropriate in the circumstances: Lee v Minister for Immigration and Multicultural Affairs [2005] FCA 464 (“Lee”) at [27]. Further, the degree of weight to be given to the evidence is a factual question for the decision maker alone: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33] and Abebe v Commonwealth of Australia [1999] HCA 14 at [197] per Gummow and Hayne JJ.
To the extent that the applicant suggests that the Tribunal failed to consider his specific personal financial circumstances or the impact of the COVID-19 pandemic on the applicant’s ability to obtain employment in Malaysia, the Court again disagrees.
As correctly submitted by the Minister (in written submissions filed in this Court on 17 January 2024), the Tribunal gave detailed consideration to the applicant’s “specific personal financial circumstances” and the impact of COVID-19 on his ability to find employment in Malaysia and support himself financially (see, in particular, [21]-[27], [31], [38], [45]-[47], [51]-[52], [60]-[61], [68]-[79] & [88] in the Tribunal’s written reasons).
In particular, the Court notes the Tribunal’s comments as follows:
75.The Tribunal has considered the applicant’s claims in his submission on 30 May 2022 that things in Malaysia have got worse since the Covid-19 pandemic, that businesses have closed down which has made more people jobless, the economy has got worse, and the cost of living is higher. The Tribunal as also considered the article submitted by the applicant dated 9 January 2021 suggesting that many job losses during the Covid-19 pandemic are likely to be lost permanently. The Tribunal accepts that during the Covid-19 pandemic and especially during 2020 the Malaysian economy suffered job losses, which was a phenomenon that was experienced across many other nations including Australia. However, the applicant’s claims about the ongoing impact of the Covid-19 pandemic and the prediction in the article that the Covid-19 related job losses may be permanent is directly contradicted by the more recent information from DFAT referred to above that the Malaysian economy rebounded strongly in 2021 and from the official unemployment rate in Malaysia (as referred to above), which shows that unemployment in November 2022 is less than 4%. Accordingly, the Tribunal has placed no weight on this article when considering the current economic circumstances and the current employment market in Malaysia.
As can be seen from the passage above, the Tribunal expressly considered the COVID-19 pandemic, including the submissions and supporting information provided by the applicant in that regard (in the form of an article dated 9 January 2021). However, the Tribunal ultimately decided to place no weight on the document provided by the applicant and relied on the more recent (and contradictory) information contained in the relevant DFAT country information report (dated 29 June 2021). As outlined above, the Tribunal is entitled to accept, reject or give weight to any evidence provided as it determines is appropriate: Lee at [27].
The Tribunal continued:
76.The Tribunal accepts that the applicant may not be able to earn as much in Malaysia as he could earn working in Australia. The Tribunal also accepts that the money the applicant would earn from employment in Malaysia may not be sufficient to enable him to live a lifestyle he desires, including not being sufficient to buy a car. However, as he stated at the hearing, the applicant was able to obtain employment in the past in Malaysia and this income was sufficient to sustain himself.
77.The Tribunal has considered the applicant’s comment at the hearing that Malaysians like himself may not be able to compete with foreign workers who are brought into Malaysia by agents, However, the Tribunal has placed little weight on this statement given the country information referred to above highlighting the overall low rate of unemployment in Malaysia and the statement by the applicant at the hearing that he understood that there was no current economic crisis in Malaysia that limited economic opportunities for Malaysians.
78.Based on the country information referred to above indicating that unemployment in Malaysia is at low levels and based on the finding made above that the applicant was able to obtain employment in the past in Malaysia that provided him with sufficient income to sustain himself, the Tribunal finds that if the applicant returned to Malaysia now or in the reasonably foreseeable future he would be able to obtain some form of employment in Malaysia even if it is not his preferred employment and even if the earnings from this employment may not enable him to save any money. Based on this finding, the Tribunal also finds that the income from this employment would enable the applicant to provide for himself and therefore the applicant's economic circumstances resulting from a lower income generated from his employment in Malaysia would not threaten his capacity to subsist or otherwise amount to serious harm of any kind.
As is demonstrated above, the Tribunal also expressly considered the applicant’s specific personal financial circumstances. Further, the Tribunal accepted that the applicant would earn less in Malaysia than he might in Australia, but considered the applicant could still obtain work (in Malaysia) based on previous work experience in Malaysia. The Tribunal also considered that the applicant could return to Malaysia and obtain some form of employment and that the income that he would earn would mean that he could provide for himself. On that basis, the Tribunal found that the lower income would not threaten the applicant’s capacity to subsist or otherwise amount to any form of serious harm.
No error arises in this regard.
For completeness, in the event that the applicant is claiming that the Tribunal’s decision was illogical, irrational or unreasonable, the Court again disagrees.
In SZMDS, Justices Crennan and Bell relevantly stated as follows (footnotes omitted):
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.
…
132.Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal’s conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. It is clear, from the extracts from the Federal Court decision set out above, that the Federal Court emphatically disagreed with the Tribunal’s finding that the first respondent's return to Pakistan and failure to seek asylum in the United Kingdom was conduct which was inconsistent with the claimed fear of persecution arising as a result of homosexuality. It also seems clear that the Federal Court, acting on the same material or evidence on which the decision was based, would have been satisfied that the first respondent feared persecution as alleged.
133.However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it….
…
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.
As correctly submitted by the Minister (at [24] in written submissions filed in this Court on 17 January 2024), the Tribunal’s findings in this matter were based on rational reasons that were arrived at on consideration of matters that were logically probative: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC l. Further, it cannot be said that no other rational or logical decision maker could have drawn the same conclusion or arrived at the same decision: SZMDS.
The Court is satisfied that the findings above were reasonably open to the Tribunal based on the information and evidence before it and no jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review filed by the applicant on 17 February 2023 has failed to identify any jurisdictional error on the part of the Tribunal. This Court is otherwise unable to identify any error.
The application is, accordingly, dismissed.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 February 2024
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