ATL19 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 840
•4 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ATL19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 840
File number(s): BRG 159 of 2021 Judgment of: JUDGE EGAN Date of judgment: 4 June 2025 Catchwords: MIGRATION LAW – whether the Authority ought to have conducted an interview with the first applicant to clarify aspects of his claims – whether the decision of the Authority not to conduct an interview was legally unreasonable – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), s. 36(2)(a), s. 36(2)(aa), s. 473DC(a) Cases cited: DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91
DMO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 61
EIL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 736
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Plaintiff M174/2016 v Minister for Immigration and Border Protection & Anor (2018) 264 CLR 2017
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of last submission/s: 15 May 2025 Date of hearing: 9 May 2025 Place: Brisbane Counsel for the Applicants: Mr M. Steele of King’s Counsel and Mr W. Hall of Counsel Solicitor for the Applicants: Holding Redlich Counsel for the Respondents: Mr M. Maynard of Counsel Solicitor for the Respondents: Sparke Helmore ORDERS
BRG 159 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ATL19
First Applicant
BIE21
Second ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
4 JUNE 2025
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
2.The Further Amended Application for Review filed on 15 May 2025 be dismissed.
3.The First Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $8,371.
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 EGAN
Introduction
The first applicant is the father of the second applicant who was born on 28 June 2007. [1]
[1] See Ex. 1 – Court Book (CB) p. 103.
The first applicant claimed that he and his son were Vietnamese Catholics of Kinh ethnicity from Hoa Phong Village in Dac Nong Province, Vietnam. The applicants arrived in Australia as unauthorised arrivals in June 2013 and made a combined application for Safe-Haven Enterprise Visas (SHEVs) on 28 March 2017.
A delegate of the Minister refused to grant the visas on 10 December 2018. That decision was affirmed by the Immigration Assessment Authority (the Authority) on 10 January 2019.
On 1 February 2021, a Judge of this Court quashed the decision of the Authority and ordered that the matter be remitted to the Authority for its re-consideration and determination according to law. The Court found that the Minister had failed to provide the Authority with certain documentation which could have realistically affected the outcome on review had such documentation been provided.
The matter was reconsidered by a differently constituted member of the Authority and written reasons were handed down on 26 March 2021.
At [11] of its reasons, the Authority recorded the applicants’ claims for protection as follows:
The applicant’s claims can be summarised as follows:
•He is a citizen of Vietnam born in Duc Tho District, Ha Tinh Province in Vietnam. He is of Kinh ethnicity and a Catholic.
•On 1 July 2012, he attended a prayer group at Con Cuong parish in Nghe An Province. Police, soldiers and gang members arrived and started to physical assault and arrest the attendees. He was injured and admitted to hospital where he stayed for ten days following a splenectomy. On discharge, he stayed with his relatives in Nghe An Province before returning to his family home in Dak Nong Province.
•
In August 2012, the police attended his family home and questioned him about his involvement in the event at Con Cuong parish. They also physically assaulted him and he had to seek treatment for injuries at the hospital.
•After he left the hospital, he was stopped by the police for not wearing a helmet when riding his motorbike. The police recognised him and physically assaulted him before allowing him to leave.
•After these events he no longer felt safe at his family home in Dak Nong Province. He and his son went and stayed with his friend in Ho Chi Minh City. They then travelled to Vung Tao in Ba Ria-Vung Tau Province. He remained concerned for his safety and made arrangements to leave Vietnam.
•After his departure, the Vietnamese authorities attended his home and questioned, threatened and harassed his wife and children and sought their whereabouts.
•He fears that if he is returned to Vietnam, he will be targeted and harmed including being physically assaulted, detained in prison and/or killed on return by the Vietnamese authorities, the Communist Party of Vietnam (CPV) and gang members because of his Catholic religion; his involvement in the event in July 2012; and his political views.
•He also fears he will be perceived as having betrayed Vietnam, labelled as unpatriotic and being against the Vietnamese government because he left the country unlawfully and sought asylum in Australia.
•He claims that their risk of harm is further heightened by the release of their personal information by the Department on its website in 2014 and the interview conducted by the Vietnamese government officials when they were being held in immigration detention in Australia.
•
Since December 2018 he has participated in protests in Australia against the
Vietnamese government. There were many people taking photos at the protests. He thinks the protest attendees have taken photos of him and posted them on the internet. He thinks the Vietnamese authorities’ supporters were also at the protest to take photos of protesters and report back to the State. The Vietnamese government is aware of his supports for human rights and human rights activists in Australia. He fears he will be arrested for a long time upon return to Vietnam. He also fears he will be subject to surveillance, harassment, intimidation, house arrest, detention and heavy prison terms that is similar to other activists in Vietnam.
On 2 March 2021, the applicant’s representative provided the Authority with new information which was a statement from the applicant that he had participated in various anti Vietnamese Government protests in Australia, together with a witness statement in support of such claim and four supporting photographs. [2]
[2] CB p. 197 – 199.
At [6] of the reasons of the Authority, it was recorded that on 9 March 2021 the Authority had obtained a DFAT Country Information Report on Vietnam dated 13 December 2019, together with a 2019 United States Department of State Report on International Religious Freedom – Vietnam dated 10 June 2020.
On 9 March 2021, the Authority wrote to the applicant and his representative and invited him to comment on information contained in the DFAT and United States Department of State Report, asking the applicant to comment on whether the content of such reports might be the reason, or part of the reason, why the Authority might affirm the decision of the delegate to refuse to grant the visas.
On 24 March 2021, the applicant’s representative responded to the invitation by sending a submission dated 23 March 2021, a statutory declaration of the applicant of such date, the witness statement and photographs which had previously been provided on 2 March 2021, as well as other documentation that had already been before the Authority. Reference was also made to the 2019 United States Department of State Human Rights Report on Vietnam. The Authority was satisfied that there were exceptional circumstances justifying its consideration of the reports and the associated documentation so provided.
The Authority found that the first applicant had not been politically active in Vietnam or in Australia. It was also not satisfied that protest attendees had posted pictures of the applicant on the internet, or that the Vietnamese government was aware of his support for human rights and human rights activists (including Viet Tan) in Australia. It was not satisfied that he planned to be politically active if returned to Vietnam.
At [57] – [64] of its reasons, the Authority set out how it was not satisfied that the applicants were owed protection obligations under the provisions of s. 36(2)(a) of the Migration Act 1958 (Cth) (the Act), or that they were owed complimentary protection under the provisions of s. 36(2)(aa) of the Act.
By its reasons dated 26 March 2021, the Authority affirmed the decision of the delegate.
On 20 April 2021, the applicants filed an Originating Application for Review of the decision of the Authority.
At the time of the hearing before the Court, the applicants were granted leave to rely upon what was in fact an erroneously titled and particularised Application for Review filed on 14 April 2025. Leave was granted on the undertaking of the applicants, by and through their lawyers, that a properly titled and particularised application would in due course be filed. A Further Amended Application for Review was, pursuant to the undertaking, duly filed after the hearing on 15 May 2025.
Grounds of Review
The one Ground of Review relied upon by the applicants at the hearing was as follows:
1.That the 2021 decision of the Immigration Assessment Authority (IAA) to uphold the Minister’s 2018 decision to reject the application for a protection visa was flawed and legally unreasonable because it made negative credit assessments in respect of evidence received from the Applicant and considered by the IAA without first exercising its discretion under section 473DC of the Migration Act 1958 (Cth) to interview the applicant.
It was submitted on behalf of the applicant that the Authority made adverse credit findings against the first applicant by:
(a)Expressing scepticism whether the first applicant was involved in many of the protests that the applicant claimed;
(b)Expressing scepticism as to whether the first applicant was involved with the Vietnamese political party, Viet Tan, in Australia; and
(c)Concluding that, at the highest that any political activity undertaken by the first applicant was done with “the sole purpose of strengthening his claim to be a refugee”. [3]
[3] [8] of applicant’s written submissions filed on 14 April 2025.
It was conceded by Counsel on behalf of the first respondent that the Authority had made adverse credibility findings against the first applicant at [34] – [40] of its reasons. Those reasons were as follows:
34. I have not accepted that the applicant was politically active in Vietnam, including on 1 July 2012 or that he ever came to the attention of the Vietnamese authorities because of his political views. I note that in his SHEV interview in November 2018 he confirmed that he was not politically active. I consider that the timing of the claimed political activity from December 2018 immediately after his SHEV application was refused raises concerns about the credibility of the applicant’s claims. The applicant claims that he commenced his participation in protects in Australia in December 2018 and therefore did not have an opportunity to raise this new information to the Department or the IAA. The applicant did not advise the IAA of this new claim while his application was being reviewed the first time even though the IAA wrote to him on 13 December 2018 advising that he could provide new information. I consider the delay in raising this claim is a relevant consideration in terms of credibility.
35. When the applicant initially raised his new claims on 2 March 2021, he stated that since the refusal of his SHEV in December 2018, he has participated in protests in Australia against the Vietnamese government. He provided no particulars of those protests. He claimed that there were many people taking photos at the protests. He thinks the protest attendees have taken photos of him and posted on the internet. He thinks the Vietnamese authorities’ supporters were also at the protest to take photos of protesters and report back to the State. He did not provide any evidence to corroborate his claim that protest attendees have taken photos of him and posted on the internet or why he thought that Vietnamese authorities’ supporters were also at the protest to take photos of protesters and report back to the State.
36. The witness statement from Viet Thanh Phan of 25 February 2021 states that he witnessed the applicant’s participation in many protests in Queensland. The witness has provided four photographs which I assume are of the applicant and his friend. In one photograph there appears to be the applicant, two other men and a third man in some kind of military uniform. The photograph is taken indoors and there is no evidence of any protest. The photograph is
provided without context and as such, I give no weight to the photograph. The other three photographs appear to have been taken outdoors in Brisbane, possibly on the same day, as the men in the photographs are wearing the same clothes and the background is much the same in all the pictures. There appears to be a protest of some kind in the background but there is no information as to what the protest was about or where or when. The applicant and his friend are photographed some distance away from the protest and do not appear to
be actively engaged in the protest. The photographs appear to merely indicate that the applicant was in the vicinity of a protest, likely in Brisbane, at some time.
37. In his statement of 24 March 2021, the applicant claims that he attended protests in Canberra on 30 April 2019 and 25 November 2019, an online protest on 30 April 2020 and a candlelit vigil in Brisbane on 25 October 2020. The statement and photographs provided by his witness are not consistent with this claim. His witness states that he witnesses the applicant’s participation in many protests in Queensland. The applicant only claims to have participated in one protest in Queensland. The photographs which were provided of a protest in Brisbane were taken during the day and do not support that it was a candlelit vigil or that it was an evening event. The applicant’s witness and the photographs do not corroborate the applicant’s claim that he ever attended any protests in Canberra or online. He provided a news article from the ABC about a protest in Canberra, dated 25 November 2019. The report indicates that a protest did take place in Canberra but it does not indicate that the applicant was involved.
38. The applicant claims that he is involved with Viet Tan in Australia and that he will be deemed by the Vietnamese authorities to be an associate of Viet Tan and a terrorist. The applicant has not provided any compelling detail about Viet Tan and its activity in Australia. I accept that, as a member of the Vietnamese community in Australia he may have met people associated with Viet Tan or other political groups, I do not accept that the evidence provided corroborates his claim that he would be associated with those groups or that the Vietnamese authorities would be aware of his friendships in Australia.
39.The applicant made the new claim that he would continue to protest and raise his voice in Vietnam. He claims he wants people to know about the government’s wrong doings and he wants to protect the rights to worship for Catholics in Vietnam. The applicant has not indicated how he would do this, and he relies heavily on his claimed activity in July 2012 which I do not accept occurred. The applicant has not provided a consistent or compelling articulation of his political beliefs or proposed political activity, at various times stating he wants to protest for democracy, human rights and/or Catholics. I accept that a person’s political views are not necessarily static and may evolve over time. I also accept that there is no formula for being an activist and that a person’s political activity may develop and be expressed differently at different times and that the fact of being in Australia could be a
factor in a person openly expressing their political views for the first time. However, given my concerns outlined above about the credibility of the applicant’s claims, I do not accept that the applicant’s claims are genuine and I consider that he has contrived these claims for the sole purpose of strengthening his claim to be a refugee.
40. Overall, I do not accept that the applicant has been politically active in Vietnam; or that he has been politically active in Australia; or that protest attendees have posted pictures of him on the internet; or that the Vietnamese government is aware of his support for human rights and human rights activists (including Viet Tan) in Australia; or that he plans to be politically active on his return to Vietnam. At its highest the evidence before me corroborates that the applicant was in the vicinity of a protest in Brisbane at some time. It does not support that the applicant was actively engaged in protest or that the applicant has broadcast his political views or that he intends to do so or that he has engaged in this activity other than for the sole purpose of strengthening his claim to be a refugee.
Senior Counsel for the applicants referred the Court to the joint judgment of Gageler, Keane and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection & Anor (2018) 264 CLR 2017 at [20] – [22] which relevantly provided as follows:
20. Division 3 of Pt 7AA governs the conduct of the review by the Authority in a manner which also bears on the nature of a fast track reviewable decision that is capable of being the subject of that review. In the same way as subdiv AB of Div 3 of Pt 2 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals in relation to the initial decision of the Minister or delegate, Div 3 of Pt 7AA "is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by [the Authority]".
21. There is no dispute between the parties that the various powers conferred on the Authority by Div 3 of Pt 7AA are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li, with the consequence that an unreasonable failure to exercise such a power can render invalid a purported performance by the Authority of the duty imposed on it by s 473CC to conduct a review and either to affirm or to remit the decision under review.
22. Within Div 3, s 473DB sets out the primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant. To that primary rule, subdiv C of Div 3 admits of exceptions. The principal provisions of subdiv C providing for those exceptions are contained in ss 473DC, 473DD and 473DE. Close attention needs to be paid to each of those provisions and to their interrelationship.
The submissions made on behalf of the applicants were succinctly set out at [21] – [26] of the applicants’ written submissions as follows:
21. M174/2016 was a case where the IAA did not consider new information, and the High Court considered that this 'involved a considered exercise of discretion for reasons which the Authority recorded. That exercise of discretion was open to it and was eminently justified by the reasons it gave'.24 This is not the case here.
22. In this case, the IAA exercised its discretion to consider the New Information and then proceeded to express scepticism as to the Claims grounded in the New Information as set out at [8] and [14] of this Outline. The basis for the scepticism expressed by the IAA was that the New Information was brief and lacked detail:
'no particulars of those protests ... did not provide any evidence to corroborate his claim that protest attendees have taken photos of him and posted on the internet or why he thought that Vietnamese authorities' supporters were also at the protest to take photos of protestors and report back to the State';
'There appears to be a protest of some kind in the background but there is no information as to what the protest was about or where or when. The applicant and is friend are photographed some distance away from the protest and do not appear to be actively engaged in the protest';
'The applicant has not provided any compelling detail about Viet Tan and its activity in Australia ... I do not accept that the evidence provided corroborates his claim that he would be associated with those groups or that the Vietnamese authorities would be aware of his friendships in Australia';
'The applicant made the new claim that he would continue to protest and raise his voice in Vietnam. He claims he wants people to know about the government's wrong doings and he wants to protect the rights to worship for Catholics in Vietnam. The applicant has not indicated how he would do this'.
23. That is, the IAA, having already invited further information from the applicant, made assessments of his credibility on the basis that further detail was required. That lack of detail was a matter which could have been, and ought to have been, put to the applicant. The failure to invite him to interview to assess that detail meant that the IAA's decision was unreasonable because it was not properly open to it simply to dismiss the further information without seeking that evaluation.
24. This case is distinct from M174/2016 in that the IM in exercising its discretion to consider the New Information, accepted that 'there are exceptional circumstances to justify considering the new information'. Also contrary to M174/2016, the IM did not provide any reasoning for why it did not interview the first applicant.
25. It is submitted that, in the language expressed in EIL 18, this raised 'factual questions that the applicant could have answered one way or another', being that, were the applicant invited to the interview, he could have provided further information about the protests, his participation in the protests, the Viet Tan, his involvement with the Viet Tan, and his ongoing commitment to protest activity in Vietnam.
26. The IM acted legally unreasonably in failing to interview the applicant. To adopt the words of Lord Diplock extracted above, if the IAA acted with due appreciation of its responsibilities it would have sought to interview the applicant to attempt to resolve its doubts over the New Information in circumstances where it had already determined that the exceptional circumstances of the case justified the receipt and consideration of that New Information.
Reliance was placed by the applicants upon the judgment of Kenny J in EIL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 736 at [106] and [117] which relevantly was as follows:
106. Having regard to the above matters, the Authority’s reasons for not inviting the appellant to an interview in exercise of its power under s 473DC(3) of the Act cannot be characterised as “reasonable and rational” as was the case in DPI17. Examination of other aspects of the Authority’s reasons confirms the impression that the Authority’s determination in this particular case not to invite the appellant to an interview was unreasonable in the legal sense. This decision had no sufficient rational foundation, and it was plainly unjust. No decision-maker, acting reasonably, could have exercised the power under s 473DC(3) in this way, having regard to the statutory context and the attendant factual circumstances.
…
117. As indicated earlier in these reasons, whenever a question arises as to whether the Authority has failed to comply with the implied condition of reasonableness in the exercise of a power affecting its review, the answer largely depends on the particular facts of the case, having regard to the statutory context in which the exercise or non-exercise of power falls to be considered. Consistently with this, I would emphasise that this particular case turns almost entirely on its own facts, and in consequence analogical reasoning by reference to other cases is unhelpful.
On the question of materiality, it was submitted on behalf of the applicants that the Court ought to adopt what was held by Kiefel CJ, Gageler, Keane and Gleeson JJ in MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at [38] – [39] where it was said:
38. The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred — as distinct from what would have occurred — had there been compliance with a legal obligation that was in fact breached , whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.
39. Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.
Reference was also made to the decision of Thawley J in DMO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 61 at [63] where His Honour said:
63. It follows from what the majority of the High Court in MZAPC said at [33] and from what the Full Court said in Tsvetnenko, that:
(1)the importance or “materiality” of the alleged defect in the reasoning or the decision or the process by which the decision was reached is relevant in determining whether legal unreasonableness has been established — legal unreasonableness will not be established where the defect is not material; and
(2)questions of “materiality” therefore do not need to be addressed again if it is concluded that the failure to exercise, or consider the of, a power was legally unreasonable.
Counsel for the first respondent submitted that the correct approach in circumstances such as the present was as set out in the joint judgment of the Court in DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [110] per Beach, O’Callaghan and Anastassiou JJ where it was said:
110. In summary, to demonstrate legal unreasonableness is a demanding standard and requires its demonstration against the statutory framework for making the decision to exercise or not exercise the relevant power. In the present context the scheme of Pt 7AA is such that save for limited circumstances, the Authority conducts its review on the papers (s 473DB(1)), and without accepting or requesting new information or interviewing the referred applicant. The Authority has power to invite the referred applicant to give new information (s 473DC(3)), but it does not have any duty to get, accept or request new information (s 473DC(2)). And the Authority will only consider new information if there are exceptional circumstances to justify doing so (s 473DD(a)) and providing of course that one of the limbs in s 473DD(b) is made out. A more detailed discussion of the structure and provisions of Pt 7AA is set out in Plaintiff M174/2016 v Minister for Immigration & Border Protection(2018) 353 ALR 600 at [1] and [15] to [35] per Gageler, Keane and Nettle JJ It is unnecessary to further distil or summarise what is there set out.
The judgment in DCP16 accords with the following earlier authorities:
(a)Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] per Hayne, Kiefel and Bell JJ 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.
…
76As to the inferences that may be drawn by an appellate court, it was said in House v R 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.
(b)DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30] per Kenny, Kerr and Perry JJ where it was said:
30. The relevant principles can be summarised as follows.
(1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection[2016] FCAFC 146 (CQG15) at [37]–[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; 154 ALD 221; [2016] FCAFC 174 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; 302 ALR 572; 136 ALD 41; [2013] FCA 317 (SZRKT) at [77] (Robertson J).
(2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; 266 ALR 367; 115 ALD 248; [2010] HCA 16 (SZMDS) that:
135.… 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.
(Emphasis added)
(3)By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration & Border Protection (2015) 233 FCR 451; [2015] FCA 1089 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant(2018) 353 ALR 641 at 650to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs(2002) 194 ALR 676; [2002] FCAFC 437 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113; 112 ALD 501; [2009] FCA 1470 at [37].
(4)Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN[2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
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 …
(citations omitted)
(5)A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]–[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “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” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].
(c)Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] and [42] per Wigney J where it was said:
41. The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this court in Minister for Immigration and Border Protection v Singh[2014] FCAFC 1 (Singh). The relevant principles may be summarised as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]–[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust“: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]–[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law“: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220–221; Singh at [44]–[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g)There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]–[52].
(h)The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]–[102].
(i)It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough“: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j)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: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
42. The question is whether, upon application of these principles, the decision of the Tribunal to refuse the adjournment here was legally unreasonable. Could the Tribunal’s decision be considered to be arbitrary, capricious, without common sense or plainly unjust? Do the Tribunal’s reasons disclose an evident and intelligible justification for refusing the adjournment application?
(d)Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10] – [11] per Kiefel CJ where it was said:
10. In the joint judgment in Minister for Immigration & Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal’s decision in the present case.
11. Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.
It was submitted on behalf of the first respondent that the applicant had been provided with a substantial opportunity under the then s. 473DC(1)(a) of the Act to provide information and submissions in relation to his new claims in circumstances where he was on notice that the credibility of his claims would likely to be in issue. After the initial request for an interview, and after the provision of further information and submissions, the applicant did not continue to press for an interview. There was nothing which suggested that the holding of an interview would have provided any further or better information of assistance to the member of the Authority than that which had already been provided in writing.
The Court finds that the Authority did not err in failing to conduct an interview with the first applicant. It had a wealth of information before it on which it based its credibility findings. The credibility findings the Authority made were open to it based upon the evidence before it.
It could not be said that its decision to not conduct an interview was one which lacked an evident and intelligible justification, or was otherwise one which was arbitrary, capricious, without common sense, plainly unjust or which constituted extreme illogicality.
The applicants have failed to establish jurisdictional error on the part of the Authority.
The Ground of Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 4 June 2025
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