AWN16 v Minister for Immigration

[2019] FCCA 3033

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWN16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3033

Catchwords:
MIGRATION – Application for protection visa – adverse credibility findings – due consideration by Tribunal of all claims made to it – Tribunal not required to seek further documentation or information in support of applicant’s claims – claim of apprehended bias without substance – application dismissed.

Legislation:

Migration Regulations 1994 (Cth) Schedule 2 cl. 866.222.

Migration Act 1958 (Cth), ss 36(2), 411, 415, 420(a), 499.

Cases cited:

Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713.

SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487.

MIBP v SZVCH (2016) 244 FCR 366.

Minister for Home Affairs v CSH18 (2019) 367 ALR 488.

CED15 v Minister for Immigration and Border Protection [2018] FCA 451.

CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496.

Minister for Immigration v Jia (2001) 205 CLR 507.

Webb v R (1994) 181 CLR 41.

CNY17 v Minister for Immigration and Border Protection (2018) 264 FCR 87.

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992.
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593.
Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Applicant: AWN16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 782 of 2016

Judgment of: Judge Egan

Hearing date: 13 September 2019

Date of Last Submission: 13 September 2019

Delivered at: Brisbane

Delivered on: 24 October 2019

REPRESENTATION

Counsel for the Applicant: Mr A. Krohn

Solicitors for the Applicant: Ambi Associates

Counsel for the Respondents: Mr A. Roe

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

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

2. The amended application for review filed on 16 August 2019 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 782 of 2016

AWN16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Sri Lanka of Hindu Tamil ethnicity. He arrived in Australia by boat as an unauthorised maritime arrival in 2012. On 14 November 2012 the applicant made application for a Protection Visa (Class XA).

2. On 4 February 2014 the delegate refused to grant the application for the visa on the basis that the applicant did not satisfy clause 866.222 of Schedule 2 to the Migration Regulations 1994 (Cth)(the Regulations).

3. On 12 February 2014 the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.

4. Because the regulation which introduced clause 866.222 was disallowed in the Senate on 27 March 2014, that clause was noted by the Tribunal at [15] – [16] of its reasons as having no application for the purposes of the Tribunal’s review of the matter.

5. On 24 March 2016 the Tribunal affirmed the decision of the delegate.

6. On 18 April 2016, the applicant made application for review of the decision of the Tribunal. The applicant filed an amended application for review on 16 August 2019, the grounds of which were as follows:

   “Grounds of application

   1. The Tribunal fell into jurisdictional error in that it erred in interpreting or applying the law.

   Particulars

   (a) The Tribunal erred in interpreting or applying section 415(2)(c) of the Migration Act 1958 in not remitting the matter for reconsideration with the direction that clause 866.222 was not a bar to the application for the visa.

   2. The Tribunal fell into jurisdictional error in that it was unreasonable.

   Particulars

   (a) The Tribunal was unreasonable in finding "that the applicant is not a credible or truthful witness. I believe that he has concocted, exaggerated or distorted many of his claims." (Tribunal's decision record (84]; CB 302)

   (b) The Tribunal was unreasonable in rejecting the applicant's evidence about demands for money with threats as "vague claims" or "vague and inconsistent". (Tribunal's decision record (85]-(86]; CB 303)

   (c) The Tribunal was unreasonable in rejecting the applicant's evidence about being attacked in2009 by the Karuna Group as "concocted". (Tribunal 's decision record [90]-(91]; CB 303)

   (d) The Tribunal was unreasonable in rejecting as "untrue and ... concocted" the applicant's evidence about him suffering detention and harsh treatment after leaving illegally and being detained in 2009. (Tribunal's decision record [92]-[96]; CB 304)

   (e) The Tribunal was unreasonable in finding and relying on "the applicant's demonstrated willingness to fabricate claims". (Tribunal's decision record [97); CB 304)

   (f) The Tribunal was unreasonable in finding that when the applicant and some friends were

   detained by drunken police at the time of Tamil new Year, "there is nothing in the evidence which suggests that the applicant and his friends were detained for any of the reasons in the Convention.". (Tribunal's decision record [100] ; CB 305)

   (g) The Tribunal was unreasonable in finding and relying on "the applicant's willingness to fabricate claims". (Tribunal 's decision record [100]; CB 304)

   (h) The Tribunal was unreasonable in finding that when the applicant was robbed in 2011, "even if the men were soldiers out of uniform, there is nothing in the evidence which suggests that this was anything but a random robbery". (Tribunal's decision record [102]; CB 306)

   (i) The Tribunal was unreasonable in finding and relying on "the applicant concocted and embellished most of his claims". (Tribunal's decision record [108]; CB 306)

   (j) The Tribunal was unreasonable in finding and relying on "the applicant's willingness to concoct claims". (Tribunal's decision record [117]; CB 308)

   (k) The Tribunal was unreasonable in that it referred to no evidence or basis or reason for not accepting the applicant's claim to fear harm on return because of "suspicion that he belongs to or supports the LTTE". (Tribunal 's decision record [124]; CB 309)

   3. The Tribunal fell into jurisdictional error in that there was a reasonable apprehension that it was biased.

   Particulars

   (a) The Applicant refers to and repeats the particulars to Ground 2 of this Application.

   4. The Tribunal fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact.

   Particulars

   (a) The Tribunal failed to exercise its power to inquire into the potentially important corroborative documents from the Sri Lankan court, and from the ICRC and High Commissioner for Human Rights. (Tribunal's decision record [96]-[98]; CB 304-305)

   5. The Tribunal fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact.

   Particulars

   (a) The Tribunal failed to consider whether the reason the applicant and some friends were detained by drunken police at the time of Tamil new Year, was for reason of their race as Tamils, or suspected by the police of some kind of anti-government attitude. (Tribunal's decision record [100]; CB 305)

   (b) The Tribunal failed to consider whether, when the applicant was robbed in 2011, "if the men were soldiers out of uniform," this was for reason of their race as Tamils, or suspected by the police of some kind of anti-government attitude. (Tribunal's decision record [1021; CB 306)

   (c) The Tribunal failed to consider whether, even if the Applicant was not detained after illegal departure from Sri Lanka in 2009, he may otherwise be suspected of some involvement with or support for the LTTE on his return. (Tribunal's decision record [111], [124], [132]; CB 307, 309,310)”

7. At [5] – [9] inclusive of its reasons, the Tribunal set out the relevant protection criteria and complementary protection criteria as respectively provided for under s. 36(2)(a) and s. 36(2)(aa) of the Migration Act 1958 (Cth)(the Act). The Tribunal at [9] of its reasons noted that it was required to take into account policy guidelines issued in accordance with Ministerial Direction No. 56 made pursuant to the provisions of s. 499 of the Act, as well as country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) for the purpose of protection status determination.

8. The applicant’s claims were set out in submissions filed on his behalf as follows:

   “Application for protection

   4. The applicant made the following claims in his application and material before the Tribunal.

   a) The Applicant is a national of Sri Lanka and of no other country, and has no right to enter and to reside in any other country.(Court Book (“CB”)37)

   b) The Applicant is a Tamil, and a Hindu. (CB 37)

   c) The applicant was in his twenties at the time of the decision. (CB 37)

   d) Tamils cannot get the protection of the state. (CB 37)

   e) He fears the CID, an arm of the government of Sri Lanka, and cannot relocate within Sri Lanka.

   f) The applicant and his brother were in the construction industry, and “so everyone asks money.” People who said they were in the Karuna group (a pro-government group) were ringing to demand money. The Karuna group “have weapons, and they have officers in different areas including mine.” (Entry Interview, CB 89)

   g) The Applicant’s “brother is not in a political party but he talks to them to get work opportunity.” (CB 91)

   h) His older brother owned a construction vehicle which the Applicant had been driving since he got his licence, in 2008. He described incidents at the construction site, including one in May 2011 where he was robbed while a gun was pointed at this head. People whom he thought were Sinhalese demanded that he give them his vehicle, but he refused. He believed the people who threatened him were in the Army, as he had seen them in army clothes. He reported this incident to the police and mentioned that the people sounded like Sinhalese talking in Tamil, but “didn’t mention that they were army.”(CB 89-90)

   i) After this, because he was afraid of being shot, he did not go to the construction site, but remained for a while working in the shop of another business he had, although, as that business did not go well, he closed it after some time. (CB 89)

   j) The Applicant was a target for extortion because in the construction industry earnings are high. This also led to being imputed by others as “part of Karuna’s men”, which in turn could lead to trouble, as the government has disarmed Karuna, and the opposition is bringing cases against them and “putting them in jail.”(CB 90)

   k) There were about 10 threatening calls to the Applicant in 2011, from people calling themselves army or Karuna. The applicant changed his SIM card for his phone. Not he, but his older brother paid demands for money, in amounts of 2 or 3 lakhs.3 His older brother paid these 5 or 6 times, the most recent payment being about 8 months before the Entry interview. (CB 90) “The payments we had to make made a shop we had for a few months unprofitable and my brother closed it.” (Statement in support of application for the visa, CB 37)

   l) After these incidents, the Applicant “wouldn’t usually go outside to do work”. (CB 90)

   m) Around new year in 2010, the Applicant was with a group of friends who were stopped by police in plain clothes and asked to show their identity cards. The Applicant and a friend went on to the Police camp to show their identity cards, but some of his other friends hit the police. Shortly after the Applicant and the friend with him were hit and detained by police, and then taken to a special Task force camp where they were detained for about three hours. (CB 90)His brother came to get him, although initially the police denied having the Applicant. (CB 37)

   n) In or about 2011, the Applicant applied unsuccessfully for a visa to go to London. He had got his passport in or “around the start of 2010.”Then his brother got threats by telephone, and so sent the Applicant and a younger brother to Australia for their safety. The Army had hit the head of his younger brother “and its broken.”(CB 89, 92, 93)

   o) The Applicant has departed Sri Lanka illegally by boat (CB 92-93) and made a claim for asylum in Australia.

   p) The applicant feared “problems with the Gov’t. And the problems that I had at the start will happen again.” (CB 95)”

9. At [18] – [36] inclusive and at [39] – [79] inclusive of its reasons, the Tribunal carefully recorded and noted all of the claims made by the applicant. At [80] – [82] inclusive of its reasons, the Tribunal noted submissions made on the applicant’s behalf by his representatives. At [83] – [124] inclusive of its reasons, the Tribunal carefully considered the particulars of claims made by the applicant. In particular, the Tribunal categorised the applicant’s large number of claims under headings and made relevant findings as follows:

   a)Demands for money

   The Tribunal did not accept that members of the applicant’s family had been victims of extortion. It held that there was no evidence which suggested that the applicant or any member of his family had sought or been denied protection from extortion or any other harm in Sri Lanka. The claim was not accepted. (Court Book p. 302)(CB)

   b)2009 attack by Karuna Group

   The Tribunal did not believe that the applicant would have failed to mention an incident which resulted in him being injured and hospitalised, and therefore so fearful of further harm that he had allegedly decided to flee when asked about his claims during his entry interview, if those incidents had occurred. The Tribunal considered that the claim had been concocted as a reason for his having left Sri Lanka illegally in 2009. (CB p. 303)

   c)Illegal departure in 2009

   The Tribunal did not accept that the applicant’s claims were true because he had not raised them at either his entry interview or in his Protection Visa interview. The Tribunal also found that documents supplied by the applicant were not genuine. Alternatively, even if they were genuine, the Tribunal found that the documents did not confirm the applicant’s claim that he had been detained in 2009 for departing Sri Lanka illegally and it therefore gave the documents very little weight. (CB p. 305)

   d)Tamil New Year 2010 incident

   The Tribunal found that there was nothing in the evidence to suggest that the applicant or his friends had been detained by police for any Convention reason, or that he would face future difficulty due to such detention. It was found to be an isolated incident which would have no impact in the future. (CB p. 305)

   e)August 2010 incident

   The Tribunal noted that this alleged incident had not been raised during the entry interview, nor in written or oral submissions to the Department or to the first Tribunal. The Tribunal did not accept that the traffic accident would have any adverse impact on the applicant in the future. (CB p. 305)

   f)2011 robbery

   The Tribunal accepted that the applicant had been robbed but that was found to be random so as not to give rise to any real risk of serious harm in the future. (CB p. 306)

   g)Association with the Karuna Group

   The Tribunal found that there was no credible evidence which suggested that the applicant or any family member was harmed by the army because of any association with this group, or that the applicant would be harmed in the future by reason of any such association in the past. (CB p. 306)

   h)Fear of harm from Karuna Group

   The Tribunal found there was no credible evidence supporting the applicant’s claims that he had been threatened by any member of the Karuna Group. (CB p. 306)

   i)Fear of harm from the Army

   Though the Tribunal accepted that army officers had taken goods from the electronics shop owned by the applicant and his brother and had not paid for them, it did not accept that any such thefts were a serious and continuing problem which resulted in the closure of the shop. The Tribunal found that there was no evidence that any problems experienced by other family members caused problems for the applicant before he departed Sri Lanka, or that the applicant would experience harm because of that if he was returned. (CB p. 307)

   j)Tamil ethnicity and accusation of LTTE involvement

   The Tribunal did not accept that there was a real chance that the applicant would be accused of LTTE involvement or that there was a real chance that the applicant would be so suspected in the future. (CB p. 307)

   k)Hindu religion

   The Tribunal relied on DFAT assessments that most members of religious groups in Sri Lanka were able to practice their religion freely. It did not accept that the applicant would face a real chance of harm in the future because of his religion if returned. (CB p. 307)

   l)Problems faced by the applicant’s brother and other family members following his departure from Sri Lanka

   The Tribunal did not find that there was any evidence which suggested that the applicant would be at risk of serious harm if he was returned to Sri Lanka because of any problems faced by any other family members after the applicant had left Sri Lanka. It noted that there was no evidence which suggested that the applicant’s brother had experienced any problems since he had returned home in August 2015, his having remained there since that time. (CB p. 308)

   m)Problems related to the perception that the applicant comes from a wealthy family

   There was no evidence that suggested that the applicant or any other member of his family had been threatened or seriously harmed by anyone because of a perception that his family was wealthy. There was no suggestion that because of wealth in one’s family a person would face a real chance of serious harm if returned to Sri Lanka. (CB p. 309)

   n)Treatment of returnees / illegal departure

   The Tribunal relied upon DFAT country information in finding that because the applicant had left Sri Lanka illegally he would be briefly detained and questioned at an airport before being transferred to a Magistrates Court where he would be likely charged and fined for doing so. That was not considered to be something which gave rise to protection obligations under the Convention. There was no difference because the applicant was a Tamil Hindu according to country information. (CB p. 309)

10. As to Ground 1 of the amended application for review, the Tribunal affirmed the decision of the delegate, as it was entitled to do, pursuant to the provisions of s. 415(2)(a) of the Act. That was one of the options open to it. A Tribunal is not deprived of jurisdiction to make a decision by reason of the existence of error in the earlier delegate’s decision which it is asked to review. [1]

    [1]        SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 at [25]; MIBP v

11. There is no suggestion that the Tribunal did not undertake a “determinative independent merits review of refugee status matters” relating to the applicant. The explanatory memoranda to the Migration Reform Bill 1992 (Cth) – paragraphs 40 and 41 – do not relevantly assist. It was conceded on behalf of the first respondent that for the purposes of s. 415(2)(c) of the Act, an application for a protection visa was prescribed. That concession did not affect the Tribunal’s capacity to exercise its powers of review in respect of the delegate’s decision to refuse to grant the protection visa. Such decision was a “Part 7-reviewable decision” as defined in s. 411 of the Act. The Tribunal carried out the task of providing a determinative independent merits review of the decision before it. That decision was the decision to refuse to grant the visa. The Tribunal affirmed the decision according to law. There is no merit to Ground 1.

1. As to Ground 2 of the amended application for review, it is asserted that the decision of the Tribunal was unreasonable. In that regard, in Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 at [11], Kiefel CJ said:

   “[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.”

2. The bar for establishing legal unreasonableness is high. The particulars to Ground 2 each assert that adverse findings made by the Tribunal in relation to the applicant’s claims were unreasonable. Those particulars assert no more than a contrary view to that as found by the Tribunal. This Court is not permitted to undertake a merits review in that regard. The Tribunal was best placed to make those findings based in large part, as they were, upon adverse credibility findings. As was said in CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [21] – [24] inclusive per Thawley J:

   “[21] In his written submissions, the appellant was more specific.  The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:

   69. The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.

   70. However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.

   [22] The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.

   [23] It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70].  The conclusions which the Tribunal reached were open on the evidence before it.  Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true.  Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox. 

   [24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].”

   (Emphasis added)

3. As to the submission made on behalf of the applicant that the Tribunal made illogical findings based on the evidence before it, the Full Court  of the Federal Court in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60] – [61] said:

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

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

   …

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

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

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

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

4. The applicant has not demonstrated that the findings of the Tribunal were illogical. The Tribunal carefully considered and assessed a large number of claims made by the applicant, and it was entitled to form an adverse view as to the applicant’s credibility. It did so within the statutory context of it not being bound by technicalities, legal forms or rules of evidence as provided for in s. 420(a) of the Act. There is no merit to Ground 2.

5. As to Ground 3 of the amended application for review, this Ground, which asserts apprehended bias on the part of the Tribunal, is without merit. For such a claim to be made out, it must be distinctly made and clearly proved. That was not the case here. In Minister for Immigration v Jia (2001) 205 CLR 507 at [69] it was said:

   “[69] It was not argued, either in the Federal Court or in this Court, that the Minister's decision in either case constituted an abuse of power in the form of a deliberate refusal to follow the provisions of the statute. The arguments on bias were expressed in terms of prejudgment, and were bound up with an alleged misunderstanding of the law. It was not contended, or found, that the Minister had determined that, notwithstanding the provisions of s 501, he would exercise his statutory powers, regardless of his views of the character of Mr Jia or Mr White, simply on the basis that they had been convicted of serious offences. Some of the arguments, and some of the findings, carried a suggestion of that; but if any such submission were to be advanced, or any such conclusion reached, the allegation would have had to be distinctly made and clearly proved.”

6. No transcript of the hearing before the Tribunal was put before this Court. Such course is normally required for the purpose of identifying what it was that was either said or done by the Tribunal member, before the decision was made, which was said to give rise to a fair-minded and informed person reasonably apprehending that the Tribunal member might not have brought an impartial mind to bear on the decision making process. [2]

   [2]        Webb v R (1994) 181 CLR 41 at [70] – [71]; CNY17 v Minister for Immigration and Border

7. In the absence of a transcript, the applicant was left with the bare reasons of the Tribunal for the purpose of so submitting that the Tribunal was affected by apprehended bias. There is nothing on the face of the record which is supportive of any such submission.

8. As to Ground 4 of the amended application for review, this Ground asserts that the Tribunal ought to have exercised power to seek corroborative documents from a Sri Lankan Court, as well as the High Commissioner for Human Rights and another. On that point, it has been held that the Tribunal is not under any duty to inquire. [3] Further, the Tribunal was entitled to rely upon country information which indicated that it was not difficult for a person to obtain fraudulent documents in Sri Lanka. It did so in circumstances where it found that the applicant was not a witness of credit, and further, that in respect of the documents provided by the applicant, he had failed to provide originals of any documents so presented by him notwithstanding that he had earlier promised to obtain originals within “two weeks”. The Tribunal also made its assessment in circumstances where it had made adverse credibility findings against the applicant on a number of bases. The Tribunal did not fall into error by failing to inquire into the existence of corroborative documents, or seek out any further information in that regard. The Tribunal appropriately engaged with each of the claims advanced by or on behalf of the applicant in a reasoned and considered way. This Ground is misconceived.

   [3]        Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992

9. As to Ground 5 of the amended application for review, such Ground asserts that the Tribunal did not consider relevant material or questions of fact as particularised in the Ground. As to those particulars, each of them point to the paragraphs of the reasons where the Tribunal has dealt with each of the claims. It cannot be said that the Tribunal did not engage appropriately in relation to such claims. Again, the Ground seems to be a complaint concerning factual findings made by the Tribunal with which the applicant disagrees, and is in the nature of a request that this Court undertake an impermissible merits review.

10. It is also not clear how it is asserted, in each particularised assertion in the Ground, how the Tribunal erred in its consideration of the claims made to it. The Tribunal is not required to march to the applicant’s drum when dealing with claims made to it. It was entitled to deal with each of the claims as made in the manner considered most appropriate by it. The Tribunal’s decision making process, and its reasons, ought not to be microscopically examined for error. As was said in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] – [47] per French, Sackville and Healy JJ:

    “[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

    [47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

11. This Ground is without merit. It cannot be said that the Tribunal did not relevantly consider the subject matter of the claims made to it, nor can it be said that the Tribunal failed to make an obvious inquiry about a critical fact when analysing the claims made by the applicant. As was said in by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25] – [27]:

    “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

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

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

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

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

    …

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

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

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

   …

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

2. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

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

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

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 24 October 2019

         SZVCH (2016) 244 FCR 366 at [37]; Minister for Home Affairs v CSH18 (2019) 367 ALR 488
at [52].         Protection (2018) 264 FCR 87 at [153]. at [43].