Auy17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 39
•13 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AUY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 39
File number(s): MLG 376 of 2017 Judgment of: JUDGE EGAN Date of judgment: 13 September 2021 Catchwords: MIGRATION – Application for protection visa – claims that the Authority had failed to properly consider whether exceptional circumstances existed for consideration of new information – whether the information could not have been provided to the Department before the decision of the delegate was handed down – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5H(1), 5J, 473CB, 473DD. Cases cited: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217.
AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007.
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Division: Division 2 General Federal Law Place: Brisbane Number of paragraphs: 32 Date of last submission/s: 30 August 2021 Date of hearing: 30 August 2021 Place: Brisbane Counsel for the Applicant: Dr A. McBeth Solicitor for the Applicant: Wimal & Associates Counsel for the Respondents: Mr J. Barrington Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance save as to costs ORDERS
MLG 376 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: AUY17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
13 SEPTEMBER 2021
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.The Further Amended Application for Review filed on 30 July 2021 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, 853.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 applicant is a Tamil citizen of Sri Lanka who arrived at Christmas Island as an unauthorised maritime arrival on 10 September 2012.
On 22 December 2015, the applicant applied for a Protection Visa.
After attending an interview with a delegate of the Minister, the delegate refused to grant the visa on 6 September 2016.
The matter was referred to the Immigration Assessment Authority (‘the Authority’) for review of the decision of the delegate. On 15 February 2017, the Authority affirmed the decision of the delegate.
On 24 February 2017, the applicant filed an Originating Application for Review of the decision of the Authority.
At the hearing before the Court, the applicant relied upon a Further Amended Application for Review filed on behalf of the applicant by his lawyers on 30 July 2021.
Consideration of Applicant’s Claims
At [3] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary of the Department pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (‘the Act’).
At [11] of its reasons, the Authority summarised the applicant’s claims as follows:
•“Towards the end of the war, around February 2009, he was conscripted into the LTTE where he was forced to dig bunkers, carry dead bodies and help injured LTTE fighters.
•In March 2009 he escaped from the LTTE and was captured by the Sri Lankan Army (SLA). While detained by the SLA he was beaten badly and forced to confess membership of the LTTE. Under duress he admitted to having been in the LTTE for three months, however he was forced to sign a document confirming the period was three years and was told that this put him on record as an LTTE fighter.
•On 30 March 2009, the applicant and his family members were placed in [name of place omitted] refugee camp and he discovered his brother had been badly injured in a shell blast. At the refugee camp he was questioned, interrogated and tortured, resulting in severe headaches, memory loss, confusion and nightmares. He provided a psychologist report stating he suffers from symptoms of PTSD and acute anxiety.
•In November 2009 the applicant and his family were released from the refugee camp and went to live with his aunt in [name of place omitted]. The applicant's aunt had arranged their release by paying a bribe.
•In June 2010 the applicant and his family were resettled in [name of place omitted]. Local council elections were occurring around this time and the applicant assisted the TNA by volunteering to distribute posters and help arrange meetings. Soon afterwards he was questioned by armed men in civilian clothes who threatened him and accused him and his family of being LTTE supporters because the school where his mother was a teacher and principal was attended by children of high profile LTTE officials. The applicant believes that photographs of the applicant's mother and sometimes of him with these high profile LTTE officials were found by the CID when they searched their houses at the end of the war.
•Over the next two years the applicant was questioned regularly by people he thought were from the CID. In September 2010 and July 2011 he was detained, punched and had the soles of his feet beaten as his interrogators believed he had knowledge of where the LTTE had hidden weapons at the end of the war. On one occasion he was interrogated about his cousin who was a known member of the LTTE and who fled to Switzerland.
•Over the two years of regular questioning he kept a low profile and spent much time at his family's paddy field trying to avoid the CID.
•One evening early in August 2012 a group of men came to his home and warned him that he would be killed if he did not stop working for the TNA. They told him they knew he was an LTTE member and that he wanted to bring the LTTE back and warned him that he would be killed.
•Since departing Sri Lanka his mother has been regularly questioned by the authorities about his whereabouts. Whenever a new army commander or high ranking officer comes to work in the applicant's home area, they always come around asking questions about him. As they have a record of him as an LTTE member, they still see him as a risk to the Sri Lankan government.”
(names of places omitted)
At [12] and [13] of its reasons, the Authority duly recorded what constituted a person being a refugee pursuant to the provisions of s. 5H(1) of the Act, and what constituted a well-founded fear of persecution pursuant to the provisions of s. 5J of the Act.
Grounds of Review
The Grounds of Review as set out in the Further Amended Application for Review filed on 30 July 2021 were relevantly as follows:
“Grounds of application
The applicant relies on the following grounds in lieu of those set out in the application filed on 24 February 2017.
1.The decision of the IAA was affected by jurisdictional error in that it misconstrued the meaning of 'exceptional circumstances' in s. 473DD(a) of the Migration Act, causing the IAA not to consider information submitted by the applicant.
Particulars
(a) The IAA failed to consider the applicant's claim to have made a witness statement to United Nations investigators or the BBC news report included in the applicant's submission against the criteria in s 473DD.
(b) The approach taken by the IAA at [8] misconstrued the 'exceptional circumstances' test.
2.The decision of the IAA was affected by jurisdictional error in that it failed to have regard to the explanations provided by the applicant as to why the new information submitted by him could not have been submitted earlier and/or why it constituted credible information that may have affected the consideration of the delegate's claims.
Particulars
(a) The IAA at [5] and [9] found that there was no explanation provided as to why certain items of new information had not been provided to the delegate. The IAA concluded that s 473DD
(b)of the Migration Act was not satisfied in relation to those items of new information and refused to consider them for that reason.(b)Contrary to the IAA’s findings, the submissions to the IAA explained that the information was provided to corroborate the applicant’s story in response to criticisms and adverse findings that had been made by the delegate.”
Ground 1 of the Further Amended Application was a claim that the Authority had misunderstood the meaning of “exceptional circumstances” in s. 473DD(a) of the Act. It was asserted that the Authority had failed to consider the applicant’s claims against the relevant criteria in s. 473DD. Section 473DD of the Act provided as follows:
“473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.”
By a letter dated 4 October 2016, the applicant’s lawyers enclosed documents, and made submissions, in support of the applicant’s claims. It was submitted that there were three (3) items of new information that the Authority ought to have considered under s. 473DD of the Act but weren’t. Those were:
(a)the claim that the applicant had given a witness statement to the United Nations High Commissioners Office.
(b)a BBC news report of 17 September 2016 in which the Sri Lankan Justice Minister, one Wijeyadasa Rajapakshe, had said that “ …anyone who brought up the subject of mass graves in the North was an enemy of the nation and the war heroes.”
(c)a letter dated 4 October 2016 from the president of the Tamil Refugee Council, one Aran Mylvaganam, confirming that the Council had assisted the applicant in providing his witness statements to the UNHRC, and as to the resultant risks to the applicant for his having done so. [1]
[1] Court Book (CB) p 166 – 167.
In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [24] – [27] and [29] – [34] it was said per Gageler, Keane and Nettle JJ as follows:
“[24]The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event (31), that meets the two conditions set out in s 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.
[25]There is no inherent dichotomy between new information which meets the two conditions set out in s 473DC(1)(a) and (b) and review material which the Secretary is required to give the Authority under s 473CB. That is because review material is not limited to information that was before the Minister or delegate at the time of making the decision to refuse to grant the protection visa.
[26]In relation to information contained in review material given to the Authority by the Secretary that was before the Minister or delegate at the time of making the decision to refuse to grant the protection visa, s 473DA(2) makes clear that there is no general requirement for the Authority to give that material to the referred applicant. There is, however, nothing in Pt 7AA to preclude the Authority from giving the whole or some part of that material to the applicant or another person in the context of exercising the power conferred by s 473DC(3) to invite the giving of new information, and s 473DA(2) is not addressed to what might be required of the Authority in particular circumstances in order to exercise that power reasonably.
[27]Information contained in review material given to the Authority by the Secretary that was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa will become new information if and when the Authority considers that the information may be relevant. The Authority will not need to invoke s 473DC in order to receive that new information. However, given that the Authority’s obligation under s 473DB(1) to conduct its review by considering the review material is subject to Pt 7AA, the Authority will need to comply with s 473DD, and where applicable s 473DE, if the Authority is to take that new information into consideration.
…
[29]The precondition set out in s 473DD(a) must always be met before the Authority can consider any new information. Whatever the source of new information, the Authority needs always to be satisfied that there are “exceptional circumstances” to justify considering it.
[30]Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered” (32).
[31]Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).
[32]The circumstance of which the Authority needs to be satisfied in order to meet s 473DD(b)(i) is that the new information that is given, or proposed to be given, by the referred applicant was not, and could not have been, provided to the Minister before the Minister or delegate made the decision to refuse to grant the protection visa. No explication of that circumstance is required in the present case.
[33]The circumstance of which the Authority needs to be satisfied in order to meet s 473DD(b)(ii) does require some explication. In that provision, the term “personal information” takes its defined meaning within the Act of “information or an opinion about an identified individual, or an individual who is reasonably identifiable” (33). Unaided by considerations of legislative history, the reference in s 473DD(b)(ii) to personal information which was not previously “known” might have been read as confined to personal information not previously known to the referred applicant. Legislative history, however, is against that reading. The provision is the result of an amendment to the Bill for the 2014 Amendment Act made in the Senate. The purpose of the amendment was explained at the time as being to “extend the types of ‘new information’ that a referred applicant may present to [the Authority] to include, for example, evidence of significant torture and trauma which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant’s asylum claims by the Minister” (34). The Full Court of the Federal Court has correctly recognised that the identified purpose is best achieved by reading the reference to personal information which was not previously known as encompassing personal information which, although previously known to the referred applicant, was not previously known to the Minister (35).
[34]Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims.”
In AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007 at [2] – [4] it was said per Kiefel CJ, Gageler, Keane and Gordon JJ as follows:
“[2] Part 7AA has now been surveyed on numerous occasions. Section 473CC imposes a duty on the Authority to review a "fast track reviewable decision" referred to it by the Minister for Immigration and Border Protection by which a delegate of the Minister has refused under s 65 to grant a protection visa to the "referred applicant". The Authority is required by s 473DB to perform that duty by "considering" the "review material" provided to it by the Secretary of the Department of Immigration and Border Protection at the time of referral "without accepting or requesting new information" save to the extent that the Authority "gets" new information from the referred applicant or some other person under s 473DC and goes on to "consider" that new information under s 473DD.
[3] "Information" − a communication of "knowledge of facts or circumstances ... of an evidentiary nature" − amounts to "new information" if the information meets two conditions. The first is that the information was not before the Minister at the time of making the referred decision. The second is that the Authority considers that the information might be "relevant" to the review, meaning that the Authority thinks that the information might be capable of rationally affecting its assessment of the probability of the existence of some fact about which it might be required to make a finding in its decision on the review.
[4]The Authority "gets" new information within the meaning of s 473DC when and if the Authority physically obtains new information. The Authority goes on to "consider" new information within the meaning of s 473DD when and if the Authority takes new information it has got into account in making its decision on the review, assigning the new information such probative weight as it thinks the new information deserves in its assessment of the probability of the existence of some fact about which it actually makes a finding.”
(footnotes omitted)
The Authority considered that the letter of 4 October 2016 from the Tamil Refugee Council was new information. The Court finds that the Authority had considered whether the information was credible personal information under s. 473DD(b)(ii) of the Act. The Authority found that there was no evidence to suggest that the Sri Lankan authorities had had, or will have, any access to the information confidentially supplied by the applicant to the UNHCR. By so finding at [8] of its reasons, the Authority was not accepting that the applicant’s claim of fear, based upon what was set out in the Tamil Refugee Council letter, was credible.
As to each of the three (3) items of new information, the Court accepts the submissions made on behalf of the first respondent filed on 8 September 2021, as follows:
“[12]In this case, the three items of evidence referred to at [10] above are a communication of knowledge or circumstances of an evidentiary nature. That is, they are a communication of the fact of the Sri Lankan Justice Minister’s comments and the fact of the Applicant’s statements to UN investigators. Those facts were not before the delegate, and by considering the information to be “new information”, the Authority implicitly concluded that the information was “relevant”. Of course, the Authority’s finding that the information was “relevant”, however, does not foreclose its later conclusion that, in effect, the information should not be given any weight: see [17]-[18] below.
[13]The content of each item of new information is important. The claim itself, recorded as it is in the Applicant’s representative’s written submissions to the Authority, adds nothing over and above the letter from the TRC. Indeed, it is apparent that the claim recorded in written submissions is an almost verbatim account to that given in the third, fourth and fifth paragraphs of the TRC letter.
[14]The news report is not extracted or separately provided to the Authority. A link is provided in both the written submission and the TRC letter, but that link is no longer working. Accordingly, the Applicant is unable to point to anything in that news article that ought to have been considered by the Authority, beyond the quote extracted in both the claim and the TRC letter.
[15]The upshot is that the TRC letter subsumes the other two pieces of “new information” relied upon in this ground. Put differently, the TRC letter itself contains both the claim advanced in written submissions, and the news article. Contrary to the Applicant’s submissions at [17]-[18], no error is shown by the Authority confining its consideration to the TRC letter. That the same claims were repeated in a different document is not to the point: s 473DD is concerned with information (i.e. material of an evidentiary nature) and not the piece of papers on which it appears.
[16]As the Applicant accepts, the Authority considered s 473DD(b)(i): the Authority expressly accepted that the “new information could not have been provided to the department before the decision was taken to refuse the applicant’s PV application” (CB 177 [8]).
[17]The Authority then noted that the Applicant provided his statement to UN investigators anonymously, and that there was no suggestion that Sri Lankan authorities had access to, or will have access to, the information provided by the Applicant or that they are aware that the Applicant had provided information. This reasoning is relevant to s 473DD(b)(ii). That is, the Authority did not accept that the information, had it been known, would have affected the consideration of the Applicant’s claims. Accordingly, there was no error in the Tribunal’s consideration of s 473DD.
[18]In any event, having regard to that finding, any error (which is denied) is immaterial. The Authority was plainly of the view that, given the anonymous nature of the information provided, the Sri Lankan authorities were not aware and would not become aware that the Applicant had provided information to UN investigators. Accordingly, even if the Authority had considered the new information, there was no realistic possibility that it could have affected the outcome of the review. The Authority’s reasoning is tolerably clear: in circumstances where the Applicant’s statements to UN investigators were anonymous, there was no resultant risk of harm.”
(footnotes omitted)
Having noted that the letter from the Tamil Refugee Council post-dated the delegate’s decision, and having found that the giving of a statement to the UNHCR by the applicant was not going to cause him to be put at risk of harm, the Authority was entitled to then find that there were no exceptional circumstances justifying its consideration of such new information for the purposes of its refugee assessment.
The Court finds that the Authority did not err in the way in which it approached its task of assessing new information under s. 473DD of the Act. There is no merit to Ground 1 of the Further Amended Application.
As to Ground 2 of the Further Amended Application, it was claimed that the Authority had erred in its findings at [5] and [9] of its reasons, which relevantly were as follows:
[5]The submission includes references to the following items of country information that pre-date the delegate's decision:
•International Truth and Justice Project Sri Lanka report titled 'Silenced: Survivors of torture and sexual violence in 2015'
•International Crisis Group, "Sri Lanka's North I: the denial of minority rights" 1 March 2012
•"220 Tamils arrested in SLA combing in Trincomalee", Tamil net, 25 April 2012
•"Fears for Tamil detainees in Sri Lanka", British Broadcasting Corporation, 4 May 2012
•"Human Rights Watch World Report Sri Lanka 2013", 21 January 2013
None of these reports were before the delegate and I consider them to be new information. No explanation was provided as to why this new information was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known, and had it been known may have affected the consideration of the applicant's claims. I am not satisfied in relation to the matters set out in s.473DD(b) of the Act and have not considered this new information.
…
[9]The submission includes a letter of support dated 1 October 2016 from Shanthi Sriskandaraja, a Member of Parliament for Wanni Electoral District. The author claims to be a family friend and states the letter is being written 'on request of [applicant's name] to assist his protection visa application.' This letter was not before the delegate and I consider it to be new information. While the letter is dated after the delegate's decision, the information it contains pre-dates the decision. No explanation was provided as to why this was not sought earlier. As noted above, the applicant was represented before the Department by his current registered migration agent. I am not satisfied there are exceptional circumstances to justify considering this new information.”
As to each of paragraphs [5] and [9] of the reasons of the Authority, it was submitted that the Authority had failed to have regard to explanations contained in the applicant’s lawyers submission of 4 October 2016 [2] as to why the information had not been presented to the delegate.
[2] CB 159 – 163 being letter from Vrachnas & Co Lawyers to the IAA.
As to the five (5) items of country information referred to at [5] of the reasons of the Authority, it was submitted on behalf of the applicant that the information had not been earlier provided because its consideration was only required in the light of findings by the delegate.
As to the letter from the member of Parliament referred to at [9] of the reasons of the Authority,[3] it was again submitted that such letter was provided in response to the adverse credibility findings of the delegate, and that that had been set out in the 4 October 2016 submission. It was submitted that such letter had been ignored by the Authority for the purpose of its consideration of s. 473DD(b)(ii) of the Act. There is no merit to such claims.
[3] CB 165 – letter from Mrs Shanthi Sriskandaraja (MP) dated 1 October 2016.
As to the country information identified at paragraph [5] of the reasons of the Authority, the Court accepts the submissions made on behalf of the first respondent that such country information could not have assisted the Authority in respect of adverse credibility findings made against the applicant by the delegate. The reason for its late submission on such basis was clearly rejected by the Authority, and the Authority was justified in finding that no explanation was provided as to why it could not have been provided earlier to the delegate, well before the delegate handed down the decision.
As to the letter identified at paragraph [9] of the reasons of the Authority, the Authority was correct to find “No explanation was provided as to why this was not sought earlier.” The Authority correctly identified that the information contained in the letter could have been provided to the Department before the delegate handed down their decision, as the factual content related to events well in the past. The applicant did not explain why that had not been done. The Authority did not err in its finding that no explanation had relevantly been provided.
Even if it was to be found that the Authority had erred, such error was immaterial. The Authority at [19] of its reasons accepted claims made by the applicant that he had been conscripted into the LTTE and that the applicant was a low level TNA supporter. Such information was mirrored in the letter from the MP. Accordingly, the non-consideration of the MP’s letter was of no moment, having been duly dealt with by the Authority under s. 473DD(a) and (b) of the Act in circumstances where such non-consideration could not realistically have resulted in a different decision being made.
In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:
“[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
The Authority had due regard to all of the evidence before it. It closely considered the evidence and made logical and rational findings after having done so. It could not be said that the Authority had failed to make any obvious inquiry about a critical fact, or that it had otherwise failed to carry out its statutory duty in the Part 7AA fast track refugee assessment process.
Further it cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] 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.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[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.”
Neither could the decision of the Authority be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to establish jurisdictional error on the part of the Authority.
The Further Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 13 September 2021
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