BDN19 v Minister for Home Affairs
[2019] FCCA 2717
•25 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BDN19 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2717 |
| Catchwords: MIGRATION – Application for protection visa – journalist from Rwanda attending Commonwealth Games – conflicting and implausible claims – absence of proof of likelihood of harm being suffered if returned to Rwanda – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 499 |
| Cases cited: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 |
| Applicant: | BDN19 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 268 of 2019 |
| Judgment of: | Judge Egan |
| Hearing date: | 23 September 2019 |
| Date of Last Submission: | 23 September 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 25 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Black |
| Solicitors for the Applicant: | RAILS |
| Solicitors for the First Respondent: | Sparke Helmore |
| Second Respondent: | Submitting appearance |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The amended application for review filed on 19 August 2019 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the proceedings fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 268 of 2019
| BDN19 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Rwanda. He was a journalist by occupation who arrived in Australia on a Temporary Activity (Subclass 408) Visa on 4 April 2018 as part of the Rwandan press contingent approved to attend and report on the Gold Coast Commonwealth Games. He applied for a protection visa on that date upon his arrival at the Brisbane International Air Port. His arrival interview commenced at 9:42pm on 4 April 2018 at the Brisbane International Airport. [1]
[1] Court book page 2 – 5 inclusive.
At 2:10pm on 5 April 2018, a border entry interview was conducted with the applicant at the Brisbane Immigration Transit Accommodation Centre. [2]
[2] Court book page 6 – 17 inclusive.
On 19 April 2018, the applicant lodged an application for a protection visa. [3]
[3] Court book page 19 – 46 inclusive.
A delegate to the Minister refused to grant to the applicant a protection visa on 5 November 2018.
On 7 November 2018, the applicant sought review of the delegate’s decision.
On 15 January 2019, the applicant appeared at a hearing before the Administrative Appeals Tribunal (the Tribunal) with his agent and an interpreter. Having been offered the opportunity to make further submissions to the Tribunal about matters raised by the Tribunal with the applicant during the course of the hearing, the applicant provided a substantial further submission. [4]
[4] Court book page 289 – 376 inclusive.
On 25 February 2019, the Tribunal affirmed the decision of the delegate.
On 18 March 2019, the applicant filed an application for review of the Tribunal’s decision. On 19 August 2019, the applicant filed an amended application for review. The grounds of such amended application are as follows:
Grounds of application
1. The decision of the Administrative Appeals Tribunal is affected by jurisdictional error because its rejection of the Applicant’s claims was premised on illogical or irrational reasoning or was otherwise made as a result of a failure to take into account material critical to the formation of the requisite state of satisfaction.
PARTICULARS
1.1. An important part of the Applicant’s claim for protection was his claim that he was a reporter who reported on political issues and, in particular, who authored an article about a Rwandan opposition figure.
1.2. In support of his claim for protection, the Applicant submitted and relied on a letter Mr Ephrem Nsengumuremyi, described as the Director of Ingenzi Newspaper (“the Director’s Letter”)(Court Book, p184).
1.3. The Tribunal said that the Director’s Letter was “not particularly strong evidence corroborating” the Applicant’s claims (para 39) and eventually determined to give “no probative weight to” the Director’s Letter (para 72).
1.4. The Tribunal relied, in part, on its opinion that (in the Director’s Letter) “the publisher did not admit to being the author of those articles” (par 39), but it was no part of the Applicant’s case that the publisher was the “author” of any particular articles and the Director’s Letter stated that the Director “made a decision that political, legal and bribery reports should be under my name or the Newspaper Executive body’s name” (Court Book, p 184).
1.5. The Tribunal relied, in part, on its opinion that the Director’s Letter stated “that the applicant was arrested because of information he covered that was published between 31 August 2017 and 8 September 2017 but did not state what that ‘information’ was” (para 39), whereas the Director’s Letter expressly identified the “information” as being an article “published in Ingenzi Newspaper” and having the title “PSM Itabaza Muruhando rwa Politike Nyarwanda” (and a copy of that article was before the Tribunal: Court Book, p 101).
1.6. The Tribunal relied, in part, on its opinion that the Director’s Letter “does not support his [ie, the Applicant’s] claim that he has written particular political articles that have been attributed to the publisher” (para 49), whereas the Director’s Letter expressly stated that the article titled “PSM Itabaza Muruhando rwa Politike Nyarwanda” was “information he [ie, the Applicant] covered” (Court Book, p 184).
1.7. The Tribunal relied, in part, on its opinion that the author of the Director’s Letter was not “witness to, nor can they attest to, the alleged persecution that the applicant faces or would face if he returns” (para 72), whereas the Director’s Letter expressly attested to the fact that the Applicant “was also arrested because of the information he covered” and that this “was the trigger” for the Applicant fleeing the country (Court Book, p 184).
2. The decision of the Administrative Appeals Tribunal is affected by jurisdictional error because the Tribunal’s conduct during the hearing on 20 December 2017 gives rise to a reasonable apprehension of bias.
PARTICULARS
2.1. A fair-minded, properly informed lay observer might apprehend from the nature of the questions and comments put to the Applicant by the Tribunal member during the hearing that the member might not approach the review with an open mind, having regard to:
2.1.1. [Not relied upon]
2.1.2. [Not relied upon]
2.1.3. [Not relied upon]
2.1.4. [Not relied upon]
2.1.5. [Not relied upon]
2.2. [Not relied upon]
2.3. A fair-minded, properly informed lay observer might apprehend from the totality of the Tribunal member’s conduct during the hearing that the member might not approach the review with an open mind.
3. The decision of the Administrative Appeals Tribunal is affected by jurisdictional error in that the Tribunal failed to properly consider an integer of the Applicant’s claims or failed to properly apply the “well-founded fear of persecution” test under section 5J of the Migration Act 1958.
PARTICULARS
3.1. An important part of the applicant’s claim for protection was his claim that he was issued a convocation dated 18 October 2017 to attend the Remera police station in Kigali, Rwanda on 25 October 2017 and that he was then detained by the Rwandan police between 25 October 2017 and 10 November 2017.
3.2. The Tribunal failed to make any finding about whether the convocation was genuine, saying that the “document may or may not be genuine” (Court Book, p 390).
3.3. By failing to make a finding about whether the convocation was genuine, the Tribunal failed to properly consider an important integer of the Applicant’s claim for protection.
3.4. By failing to make a finding about whether the convocation was genuine, the Tribunal failed to properly assess whether there was a “real chance” of persecution and thereby failed to properly apply the “well-founded fear of persecution” test under section 5J of the Migration Act 1958.
The claims of the applicant for refugee protection were as set out in [15]-[22] of the reasons of the Tribunal as follows:
[15] The applicant claims that he is a journalist covering sensitive political and other stories and the government is looking for him as a result. He claims to have been harassed, threatened and detained unlawfully as a result of his stories. He claims to be living in constant fear and is also fearful for the safety of his family who have had to relocate to Burrundi.
[16] The applicant claims to have written an article about controversial Opposition leader, Ms Diane Rwigara in September 2017 and as a result received a convocation (a summons to appear in court) on 25 October 2017. He was kept in a police cell for 16 days and then taken to court. He claims that he has not been formally charged with anything but understands that a further court date had been set for May 2018. He does not know what happened as a result of failing to appear in court.
[17] The applicant claims that he fears that the Rwandan authorities will kidnap and harm his wife and children and they went to Burundi for safety in around December 2017. He claims it is not possible for him to travel to Burrundi and did not go to Uganda because it would look suspicious.
[18] In December 2017 the Rwanda Media Commission arrested his boss and suspended him for 3 months.
[19] The applicant claims he stopped writing for the Ingenzi Newspaper in December2017 and a radio station in February 2018. His wife and children returned from Burrundi in March and stayed with him for a month. It was during this time that they got married.
[20] The applicant claims he was concerned the authorities would not let him leave the country and so he organised for a cousin who works at the airport to help him through immigration.
[21] The applicant claims that he has been charged falsely and been accused of working with the opposition. He claims that if he is returned he will be detained, tortured and forced to confess to further false charges. The applicant claims that there is no freedom in Rwanda to be a journalist, and that he is being targeted and threatened because he is a journalist.
[22] The applicant claims he has a well-founded fear of persecution for holding or being imputed to hold anti-government political opinions and for being a member of the following particular social groups:
a. a journalist;
b. a journalist that reports on politically sensitive issues;
c. his relatively low profile as a journalist in Rwanda; and
d. being a visa over stayer and failed asylum seeker.
At [3] – [7] of its reasons, the Tribunal set out the relevant refugee criteria to which it had to have regard for the purpose of making its decision.
At [8] of its reasons, the Tribunal noted that in accordance with Ministerial Direction No. 56, made pursuant to section 499 of the Migration Act 1958 (Cth) (the Act), the Tribunal had taken account of policy guidelines under PAM 3 in respect of both refugee and complimentary protection criteria.
At [23] of its reasons, the Tribunal recorded the documentary evidence to which it had had regard as follows:
[23] In considering the applicant’s claims, the Tribunal has taken into account material provided by the applicant to the delegate, the Department and the Tribunal along with publicly sourced material including the following:
a. emails in relation to the applicant’s application for a scholarship dated September2016;
b. letter of support from Ephrem, the applicant’s publisher, dated 17 October 2018;
c. copy of the convocation received by the applicant dated 18 October 2017;
d. various letters of support; and
e. emails and information sent to the applicant in relation to the Commonwealth Games accreditation and visa application and grant processes.
At [24] of its reasons, the Tribunal found that the applicant’s evidence at the hearing was evasive, incomplete, lacking in detail and frequently implausible. It was recorded that the Tribunal appreciated that people are nervous at a hearing and that the use of interpreters is sometimes imperfect. The Tribunal noted, however, that the applicant was given a fair hearing and was given every opportunity to put his evidence, clarify and restate any remarks, and otherwise respond to the Tribunal’s particularised concerns. At [25] it was noted that the applicant was also given an opportunity to provide further documents and submissions after the hearing, which he did through a capable representative.
At [26] – [29] of its reasons, the Tribunal was careful to document the considerations which must be taken into account by it when dealing with issues of fact finding and credibility issues, before making such findings as it did at [29].
At [31] of its reasons, the Tribunal accepted that human rights abuses continued in Rwanda, and that such abuses could be motivated against people such as journalists if they wrote articles either critical of the government or supportive of the opposition.
At [34] of its reasons, the Tribunal found that the applicant was very knowledgeable concerning the Rwandan Commonwealth Games team, such knowledge being consonant with his employment as a sports journalist. However, at [35] it was recorded that when the Tribunal questioned the applicant as to why he was detained in Rwanda, and also about the contents of the news article allegedly written by him praising an opposition politician, the Tribunal found the applicant’s account to lack relevant detail, and to be unpersuasive. The Tribunal noted that though the applicant claimed that he had been questioned for 4 days of his 16 day alleged detention, he was nevertheless unable to provide a particularly detailed or unrehearsed answer about what had occurred during that 16 day period, the questions which he had been asked, and the charges that were alleged to have been made against him. It also noted that the applicant merely claimed that his questioners had alleged that what he allegedly wrote “went against national security”. The applicant was unable to state the particulars of any charge laid against him, nor did the applicant appear before a Court in that regard. In those circumstances, the Tribunal did not find it likely that the applicant had been charged, or that there were any charges outstanding against him.
The Tribunal noted that though the applicant claimed to have been abducted in October 2017 for a few hours and assaulted by government officials due to a story he had written, such story lacked relevant detail, was implausible, and was unsupported by additional evidence. It is to be noted that there was no evidence of any reporting of any alleged incarceration or assault of the applicant by government officials, notwithstanding that the applicant was, on his own account, a journalist publishing anti-government articles in the “Ingenzi Newspaper”. One such article was the article allegedly referred to in the letter of support from Ephrem Nsengumuremyi dated 17 October 2018. [5] One would have expected an anti-government newspaper to highlight abuse perpetrated upon a journalist, such as the applicant, in Rwanda, and by government officials or supporters, if such abuse had in fact occurred. [6]
[5] Court book page 184.
[6] Court book page 385 at [36] – [38] inclusive.
As to Ground 1 of the amended application for review, particulars 1.1 – 1.4 challenge the Tribunal’s findings at [39] of its reasons, where it found that the Ephrem letter of 17 October 2018 was not particularly strong evidence corroborating the applicant’s claims. In particular, criticism was made of the sentence:
“For example, the Tribunal notes that the publisher did not admit to being the author of those articles nor did he disclose that he had been arrested and his publication closed down.”
Such sentence, when read in context, seems to have omitted the applicant’s name between the words “did not admit to” and “the author of those articles”. The letter, in its entirety, makes no reference to the applicant being the author of the quoted article “The Light in Rwandan Political Arena”. The letter merely stated that the applicant was arrested because of “information he covered, and was published”, whatever that was meant to convey. Similarly, the letter does not state that anything authored by the applicant was ever published under a different name, only that it was decided to publish information under a different name from the original author to “ensure journalists’ safety”. That doesn’t constitute a statement that the applicant ever authored any such article. One would have expected that the letter of support from Ephrem would have specifically referred to the applicant as being the author of an article if he had been.
The applicant’s complaint was made in the context of the applicant having first told the Tribunal, as recorded at [38], that his publisher/Ephrem “was reluctant to get involved and draw attention to himself”, yet secondly, in circumstances where the applicant claimed that his publisher “put his name to those articles because that was the practice”. Those assertions are contradictory and implausible. The Tribunal was entitled to be sceptical of the applicant asserting that the publisher was reluctant to get involved and draw attention to himself on the one hand, yet would pen his name to an article critical of the government, or praising of the opposition, on the other hand. Such complaints made by the applicant are without merit. As to Ground 1.1 – 1.4, the Tribunal was entitled to draw the inferences it did based upon the evidence before it. Its findings as set out in [39] of its reasons were open on the material before it.
Ground 1.5 relates to that part of the reasons of the Tribunal at the end of [39] where it was found that the Ephrem letter did not state what the “information” was which resulted in the applicant being arrested. The Tribunal was understandably confused by the wording of the letter. It was correct that the particular story referred to in the letter was that which was said to have caused the applicant to be arrested. It is also correct that the “information he covered” was never identified, as was found by the Tribunal. The Tribunal was trying to interpret a letter which used the words “a story” in one part of the letter and the words “information he covered”, in another part of the letter, in circumstances where the “information” the applicant was said to have covered was not identified. In any event, nothing of moment turns on the findings of the Tribunal at [39] relevant to the applicant’s 1.5 complaint. In the overall context of the findings at [39], the relevant findings were those relating to the contradictory assertions of the applicant as noted in paragraph 19 above. The Ephrem letter lacks the detail which one would have expected had the applicant in fact authored the offending article alleged to have given rise to anger on the part of the government or its supporters.
Ground 1.6 challenges the first sentence of [40] of the reasons of the Tribunal, namely the finding that it was put to the applicant that the Tribunal found it strange that the applicant had been arrested and detained for an article attributed to his publisher, whilst the publisher had not been so arrested or detained. To that assertion, the Tribunal noted that the applicant said that his publisher had been arrested and detained. The Tribunal then referred to the applicant having claimed in his original submission that his publisher had been arrested in December 2017 and that the publication had been suspended for 3 months. The Tribunal then reminded that applicant that his publisher had not been imprisoned, and that the newspaper was still publishing and operating a website at the time of the hearing. The Tribunal then put to the applicant that he had nothing to fear if he returned to Rwanda, particularly since the applicant’s name had not appeared on any of the sensitive articles. That was denied by the applicant, but was a matter able to be taken into account by the Tribunal in its considerations prior to arriving at its decision. An attempt by the applicant to suggest that his identity as the author of the articles was given to the authorities by the publisher of the newspaper was not accepted by the Tribunal as being plausible, because the publisher had put their own name to such articles. This ground is without merit as being contradictory and implausible in its assertions.
As to Ground 1.7 of the amended application for review, such ground challenges the foundation for the finding at [72] of the Tribunal reasons that, as to the Ephrem letter of 17 October 2018, the author of that letter was not a witness to, nor could attest to, the alleged persecution that the applicant faced if he was to be returned to Rwanda. The applicant submits that the Tribunal erred in the way it assessed the evidence before it, however, on the face of the Ephrem letter, the author of that letter does not attest to having personally observed the applicant during his alleged period of incarceration, nor does the author say what, if any, persecution the applicant would face if he was returned to Rwanda. So much is clear from a reading of such letter. In those circumstances, there can be no criticism of that finding of the Tribunal. There is no merit to such ground, especially as to the assertion that the findings of the Tribunal in that regard were illogical. It is well accepted that for such an allegation to be made out, extreme illogicality must be demonstrated, and “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”. [7]
[7] DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30]; CQG15 v
As to Ground 2 of the amended application for review, this ground constitutes an allegation that a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the Tribunal might not have brought an impartial mind to making the decision in question. [8] In such circumstances, as properly recognised by Mr Black of Counsel on behalf of the applicant, the assertion of apprehended bias must be closely looked at in the context of the subject matter of the complaint and the context in which the narrative complained of arose. As was said by Allsop CJ in SZRUI at [3]:
[3] Of course, context is vital to the assessment, albeit hypothetically constructed. It is, in the end, an assessment (through the construct of the fair-minded observer) of the behaviour of a person or persons in a position to exercise power over another, and whether that other person was treated in a way that gave rise to the appearance of unfairness being present in the exercise of state power.
[8] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at
The applicant has referred to various parts of the transcript in support of its submission, albeit that the applicant has withdrawn the assertion that the member had laughed, implicitly in a derisory manner, during the course of proceedings. As to the passages identified as being indicative of bias, the Court was taken to passages at transcript page 22 which were said to constitute evidence of prejudgement on the part of the Tribunal. Such passage as was referred to the Court was at transcript page 22 line 15 – 45, and provided as follows:
Interpreter speaking on behalf of BDN19: okay, okay… first he said whether it is considered a big deal or small deal to some people hearing my story it is a big deal to me because it is very terrifying very terrifying thinking about returning to Rwanda and how dangerous it will be. Go to the Police and the authorities are against me, they know my case and they are against me.
Senior Member: Alright, thank you for that. Now Susan, I have a number of difficulties.
Senior Member: I don’t… I find it very difficult to accept that somebody who is in fear of their lives, in fear of persecution, have a genuine fear of being significantly harmed, would wait for four months before they left the country. I find that particularly difficult to accept.
Senior Member: Instead of fleeing the country, you took time to get your wife and family back from Burundi, and you got married, had a nice time, a nice celebration. Congratulations, by the way.
Senior Member: I think your account, you will have an opportunity to respond, I think your account of how you departed is particularly implausible, and not at all persuasive.
Senior Member: I think that if you were of genuine interest to the authorities, your passport would not only not been issued, it would have been cancelled. And you would not have been permitted to depart. Your account is that your still had a passport, it was not cancelled, and in fact, you said that they know that you left the country. That’s your evidence to me (laughs); and you’ve got a stamp in it. The whole account, I think, is implausible.
Senior Member: [while interpreter is still interpreting for BDN19] so what that indicates to me is that you are not really of any interest to the authorities, not that such that you feel, in order to support your claim you have to manufacture an account of how difficult it was to leave I don’t… I am forming the view that that is just not plausible.
Senior Member: and I know I’ve got this statement from Ephrem, allegedly, although I am not quite sure how much probative weight I will give that, it says that you wrote this article. Seems to me that if you did write that article, and you wrote other political articles, why wouldn’t you have asked Ephrem to send you those copies of those articles? He… he sent you a letter, why wouldn’t you have asked him, when you were in touch with him, to provide more information to support your claims? I just, I just also find that, you know, lacking in some… credibility such that I would accept that you did in fact write those articles as claimed.
Senior Member: I also think that if you were of such interest to the authorities, I think your family probably would have heard from them in in a way that would cause you some difficulties, I think. The fact that they have been unmolested… indicates, to some extent, that perhaps that you are not of adverse interest to the authorities as you… claim to be.
Senior Member: So we talked a little about credibility at the beginning, and if I form a view that you have not been truthful in relation to some aspects of your evidence, then I may also form a view that your entire account is unreliable and that I would affirm this decision. Now you’ve got an opportunity to respond and you can talk to your advisor about it. You can either ask for an adjournment and have a discussion now, or you can ask me for more time to provide a written submission to those concerns.
A close reading of that transcript, reveals that the Tribunal did not express any concluded view on any matter. It used words such as “I am forming the view…” and “If I form the view you have not been truthful”. It cannot be said that by the use of such words there was any prejudgement on the part of the Tribunal. The Tribunal was postulating a scenario whereby certain of the applicant’s claims might not be accepted absent some further input from the applicant on the issue in question, either orally or by written submissions. Indeed, the Tribunal expressly stated during the course of the hearing that if it had any concerns about the evidence the applicant was providing, it would let the applicant know what those concerns were. [9] The Tribunal also emphasised that if the applicant needed to say anything he thought was important he was to let the Tribunal know. [10] Further, the applicant was advised by the Tribunal that he was at liberty to put further submissions in support of his claims to the Tribunal after the hearing, an opportunity which was taken up by the applicant when he and his representative supplied further extensive material for review. The later submissions made by the applicant were in response to those matters flagged as relevant issues during the course of the hearing.
[9] Transcript page 5 line 32.
[10] Transcript page 6 line 8.
In all of the circumstances, the allegation of apprehended bias has not been made out. The high bar required to establish such a claim has not been met. The ground is without merit.
As to Ground 3 of the amended application for review, the applicant asserted that the Tribunal failed to properly address issues related to the well-founded fear of persecution test under section 5J of the Act. The applicant, on the question of the genuineness of the convocation/summons document allegedly served upon him, [11] referred to [68] of the Tribunal reasons which provided:
[68] This document may or may not be genuine. It is numbered “01” which seems unlikely that it is the first summons issued in Rwanda at that time. The Convocation states that the applicant is required under article 46 of the law to present himself to the police station. It is dated 18 October 2017. The document does not state the purpose of the presentation or what law the applicant has breached. Without any supporting evidence it may well be for a parking ticket, for example.
[11] Court book page 88 and 89.
The applicant claims that the Tribunal failed to make a finding about whether such document was genuine or not. The answer to such assertion which most readily comes to mind is how the Tribunal was to make any such finding, in circumstances where there was no supporting evidence given as to whether the document was in the usual form used in Rwanda, whether the purported seal on the document was the actual seal of a criminal court in Rwanda, or whether the purported issuer of the convocation was a real person authorised to sign such a document. The Tribunal did engage on the topic, but expressed its unwillingness to state that the document was valid as opposed to its being a forgery. In the absence of supporting evidence, the Tribunal was entitled to refrain from making any such finding as was asserted should have been done by the applicant.
The Tribunal closely considered all of the evidence before it. Its findings were consistent with a reasonable understanding of the applicant’s various claims. It did not act in an irrational or erratic manner when arriving at its findings.
Though it did not expressly refer to it in its reasons, the Tribunal was entitled to take into consideration, when arriving at its decision, all matters of common knowledge as well as the evidence before it, including what the applicant said in his Border Entry Interview dated 5 April 2018 in answer to Q19, namely:
“If they can’t find me they’ll ask my wife questions. She is not safe in Rwanda. Wife fled to Burundi with the help of UNHCR in 2016…”. [12]
Of relevance in that regard is that in answer to Q11 posed at such interview, [13] the applicant provided an emergency telephone contact number which had the country telephone code prefix of +250. The country telephone code prefix for Rwanda is +250. The country telephone code prefix for Burundi is +257. The Tribunal was entitled to consider it an inconsistency of significance that the applicant on the one hand would suggest that his wife was living in Burundi because of her fears of living in Rwanda, yet on the other hand would nominate a Rwandan emergency telephone contact number for her at the time of his arrival in Australia.
[12] Court book page 16.
[13] Court book page 8.
It cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Keifel and Bell JJ in Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25] – [27], where it was said:
[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.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.
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]:
[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.
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.
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[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 Tribunal.
The amended application for review is without merit and is dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 25 September 2019
Minister for Immigration and Border Protection [2016] FCAFC 146 at [56]. [1] per Allsop CJ and Robertson J at [73].
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